FPSLREB Decisions

I. Application before the Chairperson

1 On December 11, 2007, a group grievance was presented through the International Brotherhood of Electrical Workers, Local 2228 (“the Local” or “the applicant”), on behalf of eleven of its members (“the grievors”). The grievance alleges that the Treasury Board (“the employer” or “the respondent”) had violated the negotiated agreement of retroactive pay and benefits to 2005 and requests compensation for duties performed by the grievors from 2005 to November 23, 2007.

2 The grievance was set out as follows:

We the attached signatories wish to grieve that we have not received the entitled remuneration for the duties performed as an automated test systems (ATS) test program developer, an EL’s position, retroactive to 2005, and that management has reneged on the negotiated agreement of retroactive pay and benefits to 2005.

3 The final-level reply to the group grievance was received on June 17, 2009.

4 On February 11, 2011, the bargaining agent applied for an extension of the time limit to file a reference to adjudication under section 61 of the Public Service Labour Relations Board Regulations (“the Regulations”). Attached with the application were the grievance and a letter dated January 18, 2011 from the bargaining agent. That letter stated that it failed to file the reference to adjudication within the prescribed time limits.

5 I am authorized to extend the time limit for a referral of a grievance to adjudication under paragraph 61(b) of the Regulations, enacted under the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 (“the Act”). 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,

(a) by agreement between the parties; or

(b) in the interest of fairness, on the application of a party, by the Chairperson.

II. Summary of the evidence

6 The parties agreed to submit an agreed statement of facts (ASF), which outlined the events that led to this application.

7 There are 11 grievors in the present group grievance. At the time that the group grievance was filed, they were electronic technologists, were members of the Local, and were employed at the EL-05 group and level with the Department of National Defence at the Fleet Maintenance Facility Cape Scott (FMFCS). The collective agreement between the Treasury Board and the Local — expiry date August 31, 2007 (“the collective agreement”) — applies to the present grievance.

A. The present grievance

8 An organizational change was announced on or about June 19, 2007, such that the responsibility for the Automated Test Systems (ATS) Work Centre was transferred from the Production department of the FMFCS to the Engineering department. On October 25, 2007, classifications decisions for the new EL-05 positions were made. The grievors had previously held electronic system specialists positions at the SR-EEW-11 group and level in the production department and were offered appointments to the new EL-05 positions by way of letters of offer dated November 27, 2007.

9 On December 11, 2007, the grievors filed the group grievance, claiming that they were not remunerated for the duties performed as ATS program developers, in EL-05 positions, retroactive to 2005. They alleged that management had reneged on the negotiated agreement of retroactive pay and benefits to 2005.

10 The respondent denied the grievance on the ground that the grievors were appointed to newly created positions classified at the EL-05 group and level effective June 19, 2007. It stated that any entitlements and terms and conditions of employment under the collective agreement became effective as of June 19, 2007. The final-level reply was received on June 17, 2009.

11 In June 2009, Ed Fletcher, a representative of the Local, advised the grievors that their grievance would be referred to adjudication. In July 2009, the members were advised by the Local that a reference to adjudication had been filed on their behalf.

B. The request for an extension of time to refer this grievance to adjudication

12 In early January 2011, the Local called the Public Service Labour Relations Board (“the Board”) to determine when the group grievance would be listed for a hearing. The Board advised that it had nothing on that file. The Local also conducted a search of its files but could not locate a copy of the reference to adjudication of the group grievance. The letter from the business manager of the Local, dated January 18, 2011, advised the grievors that contrary to the Local’s belief, no reference to adjudication was filed with respect to the group grievance. The business manager also stated that the applicant sought the consent of the employer to extend the time limit, but the employer declined. The application for an extension of time under paragraph 62(b) of the Regulations was subsequently filed by the applicant on February 11, 2011.

C. The Davison and Désainde grievances

13 The ASF also discusses two individual grievances, which were filed on November 21, 2008, and that will be referred to in these reasons as the Davison and Désainde grievances. The two grievors, Terry Davison and Ghislain Désainde, were not part of the group grievance. They had been appointed to new EL-04 positions in the ATS centre in the Engineering department and grieved being reclassified to EL-04 from SR-EEW-10, which resulted in them receiving lower salaries.

14 The two individual grievors received the employer’s replies on January 16, 2009, March 10, 2009, and July 14, 2009. Mr. Fletcher filed references to adjudication with respect to the Davison and Désainde grievances on July 21, 2009. In the ASF, it is noted that Mr. Fletcher considered these grievances similar in scope and that he was positive that he had referred the group grievance at the same time. The Davison and Désainde grievances were settled in or around March 2011, on the date that they were scheduled for adjudication.

III. Summary of the arguments

A. Submissions of the applicant

15 The applicant submitted that the five criteria in Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1, ought to be considered when deciding whether to grant the extension of time. Those criteria are as follows (Schenkman,at para 75):

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

16 The applicant referred to Thompson v. Treasury Board (Canada Border Services Agency), 2007 PSLRB 59, at para 7, to state that the “… particular set of circumstances defining each case must dictate the weight to be given to any one of the above criteria relative to the others.”

17 In its consideration of the first Schenkman factor, the applicant submitted that there are clear, cogent and compelling reasons for the delay. It stated that there was no issue with respect to the timeliness of the group grievance at the initial filing stage or throughout the grievance procedure. The delay was due to the bargaining agent’s administrative error.

18 The grievors were advised by their bargaining agent that their grievance would be referred to adjudication and that in fact it had been referred to adjudication. The error in not referring the grievance was not discovered until January 2011, when the Local failed to see the grievance on the Board’s hearing list. It is submitted that the grievors neither intended to abandon the grievances nor did anything to suggest to the employer that they were no longer objecting to the employer’s actions.

19 The applicant referred to the Davison and Désainde grievances, which it considered similar in scope and that were settled in March 2011, on the date they were scheduled for adjudication. It distinguished between a situation in which a grievor does not grieve within the applicable time limit and a situation in which a grievor complies with the time limit for filing a grievance but does not comply with the time limit for a reference to adjudication due to the default of his or her bargaining agent.

20 The applicant also argued that the length of the delay was not onerous, given the pace of similar grievances advancing through the grievance and adjudication processes. It stated that the nature of the grievance does not raise questions of fact for which the passage of time would be prejudicial to the employer. On those two points, it referred to Jarry and Antonopoulos v. Treasury Board (Department of Justice), 2009 PSLRB 11, at para 34 and 35. The Davison and Désainde grievances were eventually scheduled for a hearing in March 2011, and those two grievances arose out of facts which the bargaining agent considered similar in scope to the group grievance. The applicant submitted that it was reasonable for the representatives of the Local to call the Board in January 2011 for an update, given their belief that the group grievance had also been referred to adjudication. It also noted that shortly after realizing its error, the bargaining agent applied for an extension of time on behalf of the grievors.

21 The applicant also submitted that the grievors acted with due diligence because they had no reason to pursue the matter personally. The representatives of the Local had given them every reason to believe that the group grievance had been referred for adjudication. It also argued that under section 216 of the Act, “the responsibility for referring a group grievance to adjudication falls squarely in the hands of the bargaining agent.” In addition, the employer was alerted to the problem as soon as it came to the attention of the Local. Referring to Thompson and to Guittard v. Staff of the Non-Public Funds, Canadian Forces, 2002 PSSRB 18, it was submitted that if a grievor’s representative is negligent, the grievor cannot be faulted for not exercising due diligence in his or her efforts to refer the grievance to adjudication.

22 The applicant argued that the employer would suffer little if any prejudice if the group grievance were heard on its merits. The employer had been aware that similar substantive issues were raised in all the grievances. The employer never had any reason to believe that the issue raised in the group grievance had been put to rest, and it did not allege any particular hardship resulting from the delay in referring the group grievance to adjudication. The applicant submitted that the injustice caused to the grievors by denying the extension of time is significant and disproportionately greater than any potential prejudice to the employer. The applicant also submitted that the issues raised in the grievance are serious as the affected individuals have performed the duties of an EL-05 position for a significant period. In addition, no labour relations purpose is served by refusing to entertain the grievance.

23 With respect to the fifth Schenkman factor — the chances of success of the grievance — the applicant referred to Featherston v. Deputy Head (Canada School of Public Service) and Deputy Head (Public Service Commission), 2010 PSLRB 72, and to Trenholm v. Staff of the Non-Public Funds, Canadian Forces, 2005 PSLRB 65, at para 84. It submitted that the weighing of this criterion may be relevant only in cases in which the grievance appears trivial or vexatious, which this grievance is not. In addition, the Board has held in the past that the applicant need only demonstrate an arguable case as it is not appropriate in a request for an extension of time to engage in a comprehensive review of the merits of the grievance.

B. Submissions of the respondent

24 The respondent submitted that applications for extensions of time should be allowed sparingly. It referred to the purpose of paragraph 61(b) of the Regulations to permit the Board to exercise its discretion to extend the time limit provided for in subsection 90(1), when to not do so would cause an injustice. It argued that otherwise, the purpose of the time limits prescribed in the Regulations would be rendered meaningless.

25 The respondent also noted that the time limit for filing a reference to adjudication expired in July 2009 and that the request for an extension was made 19 months after the employer’s final response to this grievance. The respondent referred to general comments made in Grouchy v. Deputy Head (Department of Fisheries and Oceans), 2009 PSLRB 92, at para 46, for authority that in general, time limits are not elastic. They are mandatory and should be respected by all parties.

26 The respondent submitted that there are no clear, cogent and compelling reasons for the delay. It referred to the letter from the Local to the grievors, dated January 18, 2011, and the Local’s assertion in that letter that the Board “… has no record of receiving the required documentation” and that the files of the Local “… contain no evidence that the documentation was properly filed.” The respondent submitted that there is not sufficient similarity between the present grievance and the Davison and Désainde grievances that were in fact properly referred to the Board for adjudication. It submitted that the latter grievances were reclassification grievances, and the group grievance pertained to the employer having reneged on a negotiated agreement of retroactive pay and benefits. It stated that the applicant had not established why the grievance could not have been referred to adjudication within the prescribed time limit. It relied on Sturdy v. Deputy Head (Department of National Defence), 2007 PSLRB 45, at para 10.

27 The respondent stated that the length of the delay, 19 months, in this case is significant and that the 40-day time limit prescribed under subsection 90(1) of the Regulations provides sufficient time for a bargaining agent to confer with grievors and to refer a grievance to adjudication. The respondent submitted that the Davison and Désainde grievances do not inform the Board as to what would have occurred in the present grievance had it been referred to adjudication on time and questioned its relevance. It also submitted that time limits serve good labour relations reasons by assuring a final and binding resolution to disputes and by contributing to labour relations stability. It referred to Anthony v. Treasury Board (Fisheries and Oceans Canada), [1998] C.P.S.S.R.B. No. 107, at para 54 (Q.L.), (PSSRB File No. 149 02-167 (19981213), and Riche v. Treasury Board (Department of National Defence), 2009 PSLRB 157, at para 34.

28 In addition, the respondent argued that the requirement of due diligence has not been met because the Local did not at any time confirm the status of the group grievance before January 11, 2011. Neither the Local nor the grievors stated that they ever advised the employer that the grievance would be referred to adjudication. The respondent disputed the applicant’s argument that the employer would not be surprised by the fact that the Local intended to refer the grievance to adjudication.

29 The respondent submitted that the prejudice to the employer is significant in the present grievance because it proceeded in good faith on the understanding that the matter was closed. It stated that some of the individuals who made decisions in relation to the grievance have retired and that the recollection of witnesses has faded. It argued that there is a risk to the employer in not having access to witnesses and documents required to respond to the grievors’ allegations. In any event, the respondent submitted that if no clear, cogent and compelling reasons are established for the delay, the Board is not required to balance the injustice to the grievors and the employer. In addition, it was argued that there was a strong presumption of prejudice to the respondent, given the length of the delay.

30 The respondent disputed the bargaining agent’s submission that the threshold of demonstrating an arguable case had been met. The respondent reiterated its position that the parties have not agreed to any facts that provide any basis for the submission and that the present grievance has no relation to the Davison and Désainde grievances.

C. Reply by the applicant

31  In reply, the applicant noted that the Local had conceded that due to an administrative oversight, the group grievance had not been referred to adjudication within the applicable time limit. It stated however that it believed in good faith that it had filed the reference to adjudication along with the Davison and Désainde grievances.

32 The applicant distinguished the fact situation in Sturdy, in which an individual grievor relied on a court action to justify his failure to file a grievance on time. It also submitted that Sturdy does not stand for the proposition that it must be impossible for a grievor to have referred a grievance within the applicable time limit in order that the Chairperson might exercise his or her discretion to extend that limit.

33 The applicant disputed the respondent’s suggestion that there was a risk to proceeding with the grievance in that some of the individuals involved were now retired and that memories had faded. It submitted that no evidence of either of these risks was submitted.

34 It noted that the Davison and Désainde grievances were initially filed several months after the group grievance had first been presented but that the final-level replies in those two individual grievances and in the group grievance were within one month of each other. The timing and similarity of the issues were significant in that the bargaining agent was positive that it had referred the group grievance at the same time as the Davison and Désainde grievances. With respect to the chances of success, the applicant noted that the respondent had not alleged that the grievance would not likely be successful.

IV. Reasons

35 The time limit for referring a grievance to adjudication is prescribed in section 90 of the Regulations, as follows:

Deadline for reference to adjudication

90 (1) Subject to subsection (2), a grievance may be referred to adjudication no later than 40 days after the day on which the person who presented the grievance received a decision at the final level of the applicable grievance process.

Exception

(2) If no decision at the final level of the applicable grievance process was received, a grievance may be referred to adjudication no later than 40 days after the expiry of the period within which the decision was required under this Part or, if there is another period set out in a collective agreement, under the collective agreement.

36 Time limits under the Act are prescriptive, and as submitted by the respondent, should be extended only sparingly. However, under paragraph 61(b) of the Regulations, allowances are made to extend the time limit, and I am authorized to do so when it would be in the interests of fairness (See Thompson, at para 20, and Jarry and Antonopoulos, at para 26).

37 The parties have agreed that the five Schenkman factors can guide the Chairperson or his or her delegate in exercising his or her discretion as to whether an extension of time ought to be granted. They are outlined in Schenkman as follows at para 75:

• clear, cogent and compelling reasons for the delay;
• the length of the delay;
• the due diligence of the grievor(s);
• balancing the injustice to the employee(s) against the prejudice to the employer in granting an extension; and
• the chances of success of the grievance.

38 The five Schenkman criteria reflect principles of fairness that guide the Chairperson when applying section 61 of the Regulations (See Jarry and Antonopoulos, at para 26). The five factors may be interconnected, depending upon the circumstances in an application. It is also self-evident that a particular set of circumstances that define each case must dictate the weight to be given to any one of those five criteria, relative to the others (See Thompson, at para 7,and Jarry and Antonopoulos, at para 27).In other words, an overly formulaic or compartmentalized approach to weighing these factors will not assist in a determination of fairness within the meaning of paragraph 61(b) of the Regulations.

A. Clear, cogent and compelling reasons for the delay and the due diligence

39 The respondent argued that the applicant has not established why the grievance could not have been referred to adjudication within the prescribed time limit. However, the applicant already conceded that there is only one reason, the administrative oversight by the bargaining agent, and that this is clear from the ASF. The grievors filed the group grievance on December 11, 2007. They wanted to have the grievance heard after its refusal at the third level and were advised by Mr. Fletcher that their grievance would be referred to adjudication. The ASF also indicates that in July 2009, the Local advised the members that a reference to adjudication had been filed on behalf of the grievors.

40 The present situation deals with bargaining agent error; the grievors in a group grievance relied upon the bargaining agent to ensure that the requirements of the grievance process would be respected. In this case, the bargaining agent had full carriage of the matter. While an employee remains accountable, even when represented, the facts in this case make it clear that the grievors had taken all the steps possible and had every reason to trust the bargaining agent that the group grievance would be referred to adjudication and in fact had been referred (See Jarry and Antonopoulos,at para 29 and 30, and Thompson,at para 13 and 19). In addition, the present situation differs from that in Sturdy, in which the grievor was not a unionized employee. He relied in part on a court action he had initiated to justify his failure to file his grievance in a timely manner.

41 The respondent questioned the sufficiency of similarity between the group grievance at issue in this case and the Davison and Désainde grievances. On the face of it, the group grievance is distinct from the two individual grievances. Nevertheless, all three grievances come from the same local and arise out of similar issues, given the overlapping elements in relation to the classification levels of the employees and the payment of salary. I find that it is not so much whether the individual grievances and the group grievance are similar in substance that is important but the bargaining agent’s belief that it had referred the group grievance at that time.

42 As the exhibits in the ASF show, the timing of the final-level replies for the Davison and Désainde grievances was close to that of the final-level reply for the group grievance. The final-level replies in those individual grievances were sent in letters dated July 14, 2009. The final-level reply in the group grievance was received on June 17, 2009. More importantly, whether or not the two individual grievances were identical or similar to the group grievance in the present application, the ASF states that the bargaining agent representative believed that, in good faith, he had filed the reference to adjudication at the same time as for the Davison and Désainde grievances. The fact that there are certain similarities between the elements of the group grievance and the individual grievances simply supports the assertion made in the ASF that the representative of the Local believed the group grievance had been referred to adjudication at the same time.

43 I find that there were, therefore, clear, cogent and compelling reasons for the delay.

44 A bargaining agent error may not always be considered as a clear, compelling and cogent reason for a delay, but in certain circumstances it will be, particularly if the grievor or grievors have met their accountabilities in the process or met the due diligence factor in Schenkman (See Thompson, at para 13, 15, 19 and 20, and Jarry and Antonopoulos, at para 36).This factor, then, is considered next.

B. The due diligence of the grievors

45 The respondent argued that the grievors did not at any time verify the status of the group grievance. Considering all the circumstances before me, however, this is a case in which the bargaining agent had carriage of the grievance and delayed filing the reference to adjudication (See Trenholm, at para 46). There was no reason for the grievors to follow up with the bargaining agent. In the present case, the grievors had consented to the group grievance. They also discussed the reference to adjudication of the grievance with the bargaining agent in June 2009, and, as members, were advised by the Local that a reference to adjudication had been filed on their behalf.

46 To elaborate, section 215 of the Act, with the marginal note “Right of bargaining agent,” allows the bargaining agent to present to the employer a group grievance on behalf of employees in the bargaining unit who feel aggrieved by the interpretation or application of a provision of a collective agreement. The bargaining agent must first obtain the consent of each of the employees concerned. That section reads as follows:

Group Grievances

…

Right of bargaining agent

215 (1) The bargaining agent for a bargaining unit may present to the employer a group grievance on behalf of employees in the bargaining unit who feel aggrieved by the interpretation or application, common in respect of those employees, of a provision of a collective agreement or an arbitral award.

(2) In order to present the grievance, the bargaining agent must first obtain the consent of each of the employees concerned in the form provided for by the regulations. The consent of an employee is valid only in respect of the particular group grievance for which it is obtained.

47 Section 216 of the Act, with the marginal note “Reference to adjudication”, addresses the step in the process in which a group grievance is referred to adjudication and states that it is the bargaining agent that may refer a group grievance to adjudication, that has been presented up to and including the final level in the grievance process, as follows:

Reference to adjudication

216. The bargaining agent may refer to adjudication any group grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to its satisfaction.

48 It is clear from the wording of those provisions that once the consent of the grievors has been obtained under section 215 of the Act, the bargaining agent has full carriage of a group grievance from the point that it is presented, to the point that it receives the final response and to the point that it determines that the grievance will be referred to adjudication.

49 Exhibit 1 of the ASF shows that the consent of the grievors was obtained and that the bargaining agent presented the grievance on their behalf. The ASF notes that the grievors verified with the bargaining agent whether the group grievance would be referred to the Board. In addition to the assurances the grievors received that the grievance would be referred, the members of the Local also received confirmation that the group grievance had been referred to adjudication. Having taken steps to inquire into the grievance and the stages in the process, and given the statutory responsibilities of the bargaining agent with respect to group grievances, the grievors had every reason to trust the bargaining agent’s assurances and to rely upon them. There was no reason to inquire after the grievance. As noted in Jarry and Antonopoulos (at para 36), the grievors acted consistently throughout the process and never signalled that they had decided to abandon their grievance.

50 Similar to Thompson, the grievors had no reason to pursue the matter personally since the bargaining agent had indicated not only that it had the matter in hand but also that it was following up diligently in referring the grievance for adjudication (Thompson,at para 15). This is not a situation in which the grievors can be faulted for not exercising due diligence (Thompson, at para 15).

51 The respondent also submitted that there was no mention of the applicant ever having advised the employer that it referred the grievance to adjudication or of having had any discussions with the employer about the grievance before January 2011. The fact that there was no evidence of a discussion as to the referral of the grievance to adjudication does not mean that the applicant and the grievors did not intend to refer the grievance to adjudication. For example, the ASF includes an assertion that the Local did follow up with the hearing schedule of the Board in an effort to determine when the group grievance would be listed for a hearing. In addition, as noted earlier in my reasons, the bargaining agent conceded that it failed to refer the grievance to adjudication due to an administrative oversight. The grievance had been filed at the outset, and the employer had knowledge of the issues in the grievance. As already mentioned, there was also no reason for the grievors to follow up directly with the employer about the grievance before it was discovered that it had not been referred to adjudication.

C. The length of the delay

52 The delay in this case is not insignificant. However, section 61(b) of the Regulations, which confers upon the Chairperson or his or her delegate the authority to extend time limits in the interests of fairness, means that the length of delay is one of many factors to consider. Fairness must be the guiding principle throughout an inquiry as to how to exercise discretion to extend time limits under the Regulations. There are situations in which the delay may be lengthy, but an extension of time will be granted because it is in the interests of fairness to do so. Conversely, there are situations in which the delay presenting a grievance or referring a grievance to adjudication is extremely small in scope, but that also does not guarantee an extension will be granted, unless it is in the interests of fairness to do so.

53  The period of delay has to be examined within the context of the process that was being followed with respect to the grievances (see Jarry and Antonopoulos, at para 34). The ASF states that Mr. Fletcher, who was the representative of the Local, considered the Davison and Désainde grievances similar in scope and that he was positive that he had referred the group grievance at the same time. The individual grievances were settled in early 2011 on the date that they were scheduled for adjudication.As noted earlier in my reasons, the timing of the final-level replies for the individual grievances was close in time to the receipt of the final-level reply for the group grievance. Although the two individual grievances were initially filed several months after the group grievance had first been presented, the final-level replies in those two individual grievances and the final-level reply in the group grievance were within one month of each other. The timing and similarity of the issues was significant in that the bargaining agent was positive that it had referred the group grievance at the same time as the Davison and Désainde grievances. Although the two individual grievances differ from the group grievance, all three grievances arose from the Local and shared some common elements.

54 I agree with the respondent’s submissions in relation to Riche that the purpose of time limits is to advance stability in labour relations. Riche goes on to emphasize, however, that the Regulations provide the ability to exercise discretion to extend the time limits in the interests of fairness (at para 34):

[34] A time limit for filing grievances that is specified as part of a collective agreement between the union and the employer is meant to provide some stability in labour relations. The rationale for a time limit is to prevent the employer from being under perpetual exposure to defend grievances against actions that have long since passed and the union from having to present and argue those grievances. That said, the Regulations provide the ability to exercise discretion … to extend time limits in the interest of fairness …

[Emphasis added]

55 Although the decision in Anthony precedes the development of the Schenkman factors and the implementation of the Act, it too reflects on the purpose of time limits in contributing to stability in labour relations. After reflecting on that objective, the adjudicator and Board member goes on to note (at para 38 of QL version): “Still, this Board has a discretion in granting extensions, when it deems that it is necessary to do so in the interest of justice.”

56 In Anthony, the request for an extension of time was denied. However, the issue in the present case is quite different. In Anthony, the grievor did not even contact the bargaining agent to determine what his redress would be. While Anthony predates the establishment of the Schenkman test, reference is made to factors that apply to the discretionary power to extend time limits. The adjudicator refers to jurisprudence allowing extensions “. . . notwithstanding the expiry of time-limits [sic] where to do otherwise would cause an injustice,” and to the importance of the grievor’s diligence in the process (at para 38 to 40).

57 In the present matter, the applicant noted that shortly after realizing its error, it applied for an extension of time on behalf of the grievors. In addition, I agree that the grievors had clearly formed the intention to grieve from the outset and that the respondent would not be taken by surprise by the extension of time.

D. Balancing the injustice to the employees against the prejudice to the employer in granting an extension

58 The applicant argued that the employer would suffer little if any prejudice if the group grievance were heard on its merits. The employer had been aware that similar substantive issues were raised in all the grievances. In the applicant’s view, the employer never had any reason to believe that the issue raised in the group grievance had been put to rest. The injustice caused to the grievors by denying the extension of time would be significant. The issues raised in the grievance for the affected individuals are serious, having performed the duties of EL-05 positions for a significant period. In addition, there would be no labour relations purpose served by refusing to entertain the grievance.

59 The respondent submitted that the prejudice to the employer is significant in the present grievance because it had presumed that the matter was closed. However, it has not provided any evidence in the ASF that supports this argument. In addition, the respondent’s argument that individuals who made decisions in relation to the grievance have retired or whose recollections have faded was not supported by any of the evidence included in the ASF, upon which both parties rely.

60 As for the argument that I need not look at the issue of prejudice if there are no clear, cogent and compelling reasons for the delay and a presumption of unfairness to the respondent when there is a long delay, I do not agree. I offer the following observations on this point.

61 First, I find that there are clear, cogent and compelling reasons for the delay in this instance. Second, several decisions on extensions of time under the Act and under its predecessor have stated that granting such extensions ought not to be routine and that the circumstances of each case will dictate the weight to be given to any one of the relevant criteria when they are applied (See, for example, Trenholm, at para 58; Anthony, at para 40 (Q.L.version); Grouchy, at para 44 to 46; Jarry and Antonopoulos, at para 27; and Thompson,at para 7). Third, as stated earlier in my reasons, the overall test for extending the time limit is fairness, as articulated in paragraph 60(b) of the Regulations.

62 On that last point, it is important to emphasize that the Schenkman criteria merely serve to assist the decision maker in coming to a determination as to whether an extension of time ought to be granted. Those five factors arose in the jurisprudence and decisions of this Board and its predecessor, the PSSRB. They were consolidated by the PSSRB in the Schenkman decision and later transported into an inquiry before the Board under the Regulations. With the greatest respect, these criteria bear no fixed presumptive calculations that prevent a decision maker from considering whether, in the interests of fairness, an extension of time ought to be granted. The factors that steer such an inquiry are fact driven and based on the underlying principle of what is fair in the circumstances. Finally, as I noted earlier, the decision cited for a presumption of prejudice, Sturdy, is distinct from the current matter and involved a delay of more than two years (Sturdy, at para 9).

E. The chances of success of the grievance

63 I agree that the Davison and Désainde grievances do not have a bearing on whether the present grievance has a chance of success for the purposes of the present exercise of determining whether or not an extension of time ought to be granted. Nonetheless, this factor should not be used to examine the merits of a case prematurely. There may be situations in which it ought to be considered; for example, if the grievance is frivolous or vexatious or if the issue of true jurisdiction is exceedingly clear. In the present situation, however, I would not provide this criterion much weight.

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

V. Order

65 The application for an extension of time is granted.

66 I direct the Registry of the Board to schedule a hearing on the merits of the grievance.

November 15, 2013.

David Olsen,
Acting Chairperson of the
Public Service Labour Relations Board