FPSLREB Decisions

1 Irene Bremsak requested that the Public Service Labour Relations Board (“the PSLRB”) find that the Professional Institute of the Public Service of Canada (“the Institute”) and its named employees and members listed in Appendix I to this decision, including members of the Institute’s Board of Directors, committed unfair labour practices under paragraphs 188(b), (c), (d) and (e) of the Public Service Labour Relations Act (“the Act”). She also filed applications for the PSLRB’s consent to prosecute the Institute and its named employees and members listed in Appendix I to this decision, including members of the Board of Directors, under sections 200 and 202 for unfair labour practices. Paragraphs 188(b), (c), (d) and (e) and sections 200 and 202 provide 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

…

(b) expel or suspend an employee from membership in the employee organization or deny an employee membership in the employee organization by applying its membership rules to the employee in a discriminatory manner;

(c) take disciplinary action against or impose any form of penalty on an employee by applying the employee organization’s standards of discipline to that employee in a discriminatory manner;

(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

(e) discriminate against a person with respect to membership in an employee organization, or intimidate or coerce a person or impose a financial or other penalty on a person, because that person has

(i) testified or otherwise participated or may testify or otherwise participate in a proceeding under this Part or Part 2,

(ii) made an application or filed a complaint under this Part or presented a grievance under Part 2, or

(iii) exercised any right under this Part or Part 2.

…

200. Every person who contravenes … section 188 … is guilty of an offence and liable on summary conviction to a fine of not more than $1,000.

…

202. (1) Every employee organization that contravenes, and every officer or representative of one who contravenes, section … 188 is guilty of an offence and liable on summary conviction to a fine of not more than $1,000.

…

(3) A prosecution for an offence under subsection (1) … may be brought against an employee organization and in the name of that organization and, for the purposes of the prosecution, the employee organization is deemed to be a person.

Paragraph 188(b) prohibits the expulsion or the suspension of a person from membership in an employee organization by applying its membership rules in a discriminatory manner. An employee organization is prohibited from taking disciplinary action against or from imposing any form of penalty on a person by applying disciplinary standards in a discriminatory manner, as outlined in paragraph 188(c). Under paragraph 188(d), an employee organization cannot expel or suspend a person from membership, take disciplinary action against that person or impose any form of penalty on that person because that person has made an application or filed a complaint under the Act. Subparagraph 188(e)(ii) prohibits the intimidation, the coercion of a person or the imposition of a financial or other penalty on a person because that person made an application or filed a complaint under the Act.

A. General background

2 The complaints and applications before me are part of a flurry that Ms. Bremsak made with the PSLRB. I think it helpful to set out briefly the general context in which the complaints and applications before me arose, were filed with the PSLRB and were heard.

3 Ms. Bremsak was an elected official of the Institute. She was a member-at-large of the SP Vancouver Sub-Group, President of the British Columbia/Yukon Region’s Vancouver Branch (“the Vancouver Branch”), member-at-large of the B.C./Yukon Region’s Executive, and Sub-Group Coordinator for the SP Group Executive.

4 Ms. Bremsak originally filed two complaints with the PSLRB (PSLRB File Nos. 561-34-202 and 339, “the original complaints”). The first original complaint was filed on November 16, 2007 and alleged that the Institute had taken a discriminatory disciplinary penalty against Ms. Bremsak (PSLRB File No. 561-34-202, “the first original complaint”).

5 On April 9, 2008, the Institute’s Board of Directors suspended Ms. Bremsak from her elected offices pursuant to its Policy Related to Members and Complaints to Outside Bodies (Exhibit R-1, Tab 1, page 2) (“the Policy Related to Members and Complaints to Outside Bodies”) until the first original complaint came to conclusion.

6 Ms. Bremsak applied to the PSLRB for interim relief pending a decision on the first original complaint. She was seeking reinstatement into her elected offices with the Institute, which would allow her to attend as a delegate the B.C./Yukon Regional Executive meeting on June 5, 2008 and Regional Council meeting on June 6, 2008 (“the 2008 Regional Council meetings”).

7 On April 23, 2008, Ms. Bremsak attended a meeting of the Vancouver Branch Executive to request to be appointed a delegate to the 2008 Regional Council meetings.

8 On April 24, 2008, Ms. Bremsak sent an email to the vice-president of the Vancouver Branch Executive and copied it to the other members of the Vancouver Branch Executive, expressing her disappointment at not being appointed a delegate to the 2008 Regional Council meetings.

9 A panel of the PSLRB denied Ms. Bremsak’s application for interim relief in a letter dated June 6, 2008, with a notice that reasons would follow. The panel issued its written reasons on July 4, 2008 in Bremsak v. Professional Institute of the Public Service of Canada (“Bremsak 1 (denial of interim relief pending a decision on the first original complaint)”), 2008 PSLRB 49. The panel found that Ms. Bremsak did not establish a serious issue that justified the issuance of an interim relief.

10 The second original complaint, dated April 11, 2008 and filed on July 8, 2008, challenged the decision of the Institute’s Board of Directors to apply the Policy Related to Members and Complaints to Outside Bodies to suspend Ms. Bremsak from her elected offices (PSLRB File No. 561-34-339, “the second original complaint”).

11 On March 22, 2009, Ms. Bremsak sent an email to members of the Vancouver Branch Executive, requesting them to appoint her a delegate to the June 2009 Regional Council meeting in Kelowna (“the 2009 Regional Council meeting”).

12 On April 2, 2009, members of the Vancouver Branch Executive raised with the Institute 15 allegations of harassment against Ms. Bremsak in relation with her April 24, 2008 and her March 22, 2009 emails (“the April 2009 harassment complaints”).

13 On May 4, 2009, the Institute retained Randolph (Randy) Mattern, of North Shores Investigations, to investigate the April 2009 harassment complaints.

14 On May 7, 2009, a panel of the PSLRB decided in Veillette v. Professional Institute of the Public Service of Canada (“Veillette 1 (2-year disciplinary suspension from elected office)”), 2009 PSLRB 58, that the Institute had committed an unfair labour practice under the Act in suspending Mr. Veillette from elected office for 2 years and ordered Mr. Veillette reinstated.

15 On May 29, 2009, a panel of the PSLRB decided in Veillette v. Professional Institute of the Public Service of Canada and Rogers (“Veillette 2 (indefinite administrative suspension from elected office)”), 2009 PSLRB 64, that the Institute had committed an unfair labour practice under the Act in suspending Mr. Veillette from elected office until an unfair labour practice complaint that he had filed with the PSLRB came to conclusion. The panel examined the Policy Related to Members and Complaints to Outside Bodies, which the Institute had applied to suspend Mr. Veillette (and which the Institute had also applied to Ms. Bremsak on April 9, 2008). The panel allowed Mr. Veillette’s complaint in part, ordering the Institute to amend the Policy Related to Members and Complaints to Outside Bodies to ensure that it complied with the Act. The panel found that it had no jurisdiction to reinstate Mr. Veillette.

16 On June 3, 2009, Ms. Bremsak and John Lee (Ms. Bremsak’s husband and representative, “Ms. Bremsak’s representative”) attended a joint meeting of the Vancouver Branch Executive and the Institute’s B.C./Yukon Region’s Vancouver – Canadian Revenue Agency Branch (“the Vancouver – CRA Branch”) Executive at the Old Bavaria Haus Restaurant in New Westminster, B.C. Ms. Bremsak’s representative, who had a tape recorder in plain view, notified the Vancouver Branch Executive of Veillette 2 (indefinite administrative suspension from elected office) and requested that Ms. Bremsak be reinstated in her elected offices with the Institute. The intervention of Mr. Bremsak’s representative resulted in the cancellation of the business portion of the meeting.

17 The Institute sought, from the Federal Court of Appeal, judicial review of Veillette 1 (2-year disciplinary suspension from elected office), a stay of execution of Veillette 1 (2-year disciplinary suspension from elected office) pending judicial review and a stay of the PSLRB proceedings on Mr. Veillette’s subsequent complaint against an indefinite administrative suspension from elected office pending judicial review of Veillette 1 (2-year disciplinary suspension from elected office): see Professional Institute of the Public Service of Canada v. Veillette (“Veillette 3 (denial of stay of execution of Veillette 1 (2-year disciplinary suspension from elected office) pending judicial review)”), 2009 FCA 256.

18 On June 5, 2009, Stephen Lee, a member of the Vancouver Branch Executive, filed with the Institute a harassment complaint against Ms. Bremsak in relation to the June 3, 2009 meeting at the Old Bavaria Haus Restaurant (“the June 2009 harassment complaint”). Siddiq Ansari, Geoff Kendell and Kathleen Kerr later joined in the June 2009 harassment complaint.

19 On June 8, 2009, Ms. Bremsak filed a complaint with the PSLRB against the Institute and 22 of its representatives and employees, alleging their failure to reinstate her into her elected offices with the Institute and to appoint her a delegate to the 2009 Regional Council meeting (PSLRB File No. 561-02-404, “the non-reinstatement complaint”). The non-reinstatement complaint is one of the three complaints before me.

20 By a letter from Geoffrey Grenville-Wood, General Counsel of the Institute, to Ms. Bremsak’s representative dated June 8, 2009 (Exhibit R-3, Tab 58, pages 600 and 601), Ms. Bremsak was informed of the seriousness of the June 3, 2009 incident at the Old Bavaria Haus Restaurant. After referring to this incident, Mr. Grenville-Wood stated:

…

It is deplorable to note that the intimidation tactics and threats made against all members duly in attendance at that meeting led to the planned business of those branches being abandoned on this occasion.

We are hereby advising you that such conduct is unacceptable and will not be tolerated by the Institute. Any further attempts to intimidate other members of the Institute or otherwise disrupt the business of the Institute will result in the Institute seeking lawful means to have you or your client ejected from the premises of any function organized by the Institute.

…

21 On June 11, 2009, the Institute retained Mr. Mattern to investigate the June 2009 harassment complaint.

22 The Institute sought, from the Federal Court of Appeal, judicial review of Veillette 2 (indefinite administrative suspension from elected office): see Veillette 3 (denial of stay of execution of Veillette 1 (2-year disciplinary suspension from elected office) pending judicial review).

23 On June 29, 2009, Ms. Bremsak filed a complaint with the PSLRB against five of the Institute’s representatives, alleging that they had filed the April 2009 harassment complaints in retaliation for her pursuing her rights under the Act (PSLRB File No. 561-02-405, “the retaliation complaint”). The retaliation complaint is one of the three complaints before me.

24 On August 26, 2009, a panel of the PSLRB decided the original complaints in Bremsak v. Professional Institute of the Public Service of Canada (“Bremsak 2 (original complaints)”), 2009 PSLRB 103. The panel set out the original complaints as follows, at paragraphs 3 and 4:

[3] The first complaint started with an email sent by the complainant involving a controversy over a local election within the bargaining agent. The complainant was concerned that another member, who was selected as a successful candidate based on regional representation, did not step aside because of “ethical” issues and “a lack of morals.” The person who had not stepped aside made a complaint to the president of the bargaining agent alleging that the complainant’s comments were harassing and defaming. The bargaining agent’s Executive Committee agreed with the complaint and wrote to the complainant on September 12, 2007, requesting that she apologize. The complainant declined to apologize, and the bargaining agent’s Board of Directors apologized on the complainant’s behalf. The complainant then filed a complaint dated November 16, 2007 with the Public Service Labour Relations Board (“the Board”) alleging that this was a form of penalty and discipline and it was done in a discriminatory manner contrary to paragraph 188(c) of the Act.

[4] The second complaint is dated April 11, 2008 (but was filed with the Board on July 8, 2008) and it relates to a decision by the bargaining agent to issue a policy about applications to “outside bodies.” The Board was included as an outside body under that policy. The effect of the policy is that, “… where a member … refers a matter which has been or ought to have been referred to the Institute’s internal procedure to an outside process or proceeding for consideration, that member … shall automatically be temporarily suspended …” from any elected or appointed office. On April 9, 2008, the complainant was advised by the bargaining agent’s acting president that, pursuant to that policy and because of her complaint to the Board, she was temporarily suspended from four positions to which she was either elected or appointed. She was also advised that the temporary suspension would cease once the outside procedures had been finally terminated for any reason. The complainant submits that the policy and its application amount to discrimination against her with respect to her membership in an employee organization, it is intimidation and coercion, and imposes a financial or “other penalty” on her because she made an application to the Board, contrary to subparagraph 188(e)(ii) of the Act.

The panel dismissed the first original complaint. However, Ms. Bremsak was successful in part with the second original complaint, and the panel ordered the following:

…

[143] The bargaining agent is directed to rescind the application of its “Policy Relating to Members and Complaints to Outside Bodies” to the complainant.

[144] The bargaining agent is directed to amend its “Policy Relating to Members and Complaints to Outside Bodies” to ensure that it complies with the Act.

[145] The bargaining agent is directed to restore the complainant’s status as an elected official of the bargaining unit and to advise its members and officials, in the form described in paragraph 131 [sic] of the decision, that she has been reinstated to all of her elected and appointed positions subject to the normal operation of the constitution and by-laws of the bargaining agent.

…

[Emphasis added]

Paragraph 132 reads as follows:

[132] For these reasons, I consider it necessary in the circumstances of this case to direct the bargaining agent to publish the following announcement in a prominent place in the next edition of one of its regular and significant publications to the membership (this may be an online announcement):

Announcement to all members and officials of the Institute

On April 9, 2008, Ms. Irene Bremsak was temporarily suspended from her positions of Member-at-Large, SP Vancouver Sub-Group, President, Vancouver Branch; Member-at-Large, B.C./Yukon Regional Executive; and Sub-Group Coordinator, SP Group Executive. This suspension was a result of the Institute’s “Policy Relating to Members and Complaints to Outside Bodies” and a complaint filed by Ms. Bremsak with the Public Service Labour Relations Board.

The Public Service Labour Relations Board has recently directed, pursuant to subparagraph 188(e)(ii) and section 192 of the Public Service Labour Relations Act, that the Institute rescind this policy as it applies to the circumstances of Ms. Bremsak and to amend the policy to ensure that it complies with the Public Service Labour Relations Act. The Board also concluded that there may be different circumstances when it is appropriate to suspend a member from elected or appointed office. Finally, the Board directed that this announcement be made to members and officials of the Institute.

Therefore, Ms. Bremsak is reinstated to all her elected and appointed positions effective immediately, subject to the normal operation of the Institute’s by-laws.

[Emphasis in the original]

25 On September 1, 2009, Ms. Bremsak requested that the PSLRB file Bremsak 2 (original complaints) in the Federal Court pursuant to section 52 of the Act.

26 On September 2, 2009, the Institute filed with the Federal Court of Appeal an application for the judicial review of Bremsak 2 (original complaints).

27 On September 3 and 21, 2009, the Institute applied to the Federal Court of Appeal for a stay of Bremsak 2 (original complaints) until the Court had decided the Institute’s judicial review applications of both Veillette 2 (indefinite administrative suspension from elected office) and Bremsak 2 (original complaints).

28 Ms. Bremsak filed with the PSLRB two complaints of unfair labour practice (PSLRB File Nos. 561-02-408 and 409) and two applications for consent to prosecute (PSLRB File Nos. 597-02-1 and 2), relating essentially to the Institute’s failure to comply with of Bremsak 2 (original complaints).

29 On October 5, 2009, Ms. Bremsak filed with the PSLRB applications for consent to prosecute the Institute and 24 of its representatives and employees in relation to the non-reinstatement and retaliation complaints (PSLRB File Nos. 597-02-3 and 4). These applications are two of the three applications before me.

30 On October 15, 2009, the Institute’s Executive Committee decided to suspend Ms. Bremsak from membership in the Institute for five years, as a result of Mr. Mattern’s investigations of the April 2009 harassment complaints.

31 Ms. Bremsak filed with the PSLRB two complaints of unfair labour practice (PSLRB File Nos. 561-02-415 and 416) and two applications for consent to prosecute (PSLRB File Nos. 597-02-5 and 6), relating essentially to the Institute’s failure to comply with of Bremsak 2 (original complaints).

32 On October 20, 2009, the Institute wrote to Ms. Bremsak to inform her of the October 15, 2009 decision of the Institute’s Executive Committee to suspend her from membership in the Institute for five years (Exhibit R-3, Tab 46, page 535, “the suspension letter”).

33 On October 28, 2009, the Federal Court of Appeal denied the Institute’s application for a stay of Bremsak 2 (original complaints) until the Court had decided the Institute’s judicial review applications of both Veillette 2 (indefinite administrative suspension from elected office) and Bremsak 2 (original complaints): Professional Institute of the Public Service of Canada v. Bremsak (“Bremsak 3 (denial of stay of Bremsak 2 (original complaints) pending judicial review of both Veillette 2 (indefinite administrative suspension from elected office) and Bremsak 2 (original complaints))”), 2009 FCA 312.

34 Ms. Bremsak filed with the PSRLB one application for consent to prosecute (PSLRB File No. 597-02-7), relating essentially to the Institute’s failure to comply with Bremsak 2 (original complaints).

35 Ms. Bremsak filed with the PSLRB an unfair labour practice complaint (PSLRB File No. 561-02-421) and an application for consent to prosecute (PSLRB File No. 597-02-8) against North Shore Investigations and Mr. Mattern for their role in investigating the April 2009 harassment complaints and the June 2009 harassment complaint.

36 On December 4, 2009, a panel of the PSLRB found that, although the Institute had complied with paragraph 144 of Bremsak 2 (original complaints), it had not complied with paragraphs 143 and 145 and granted Ms. Bremsak’s request to file Bremsak 2 (original complaints) with the Federal Court: Bremsak v. Professional Institute of the Public Service of Canada (“Bremsak 4 (filing of Bremsak 2 (original complaints) in the Federal Court)”), 2009 PSLRB 159. Bremsak 2 (original complaints) was filed in the Federal Court on December 8, 2009.

37 On December 11, 2009, Ms. Bremsak filed a complaint with the PSLSB against the Institute and 23 of its representatives and employees, challenging her five-year suspension from membership in the Institute (PSLRB File No. 561-02-430, “the five-year suspension complaint”). The five-year suspension complaint is one of the three complaints before me.

38 On December 11, 2009, Ms. Bremsak also filed with the PSLRB one application for consent to prosecute the Institute and 23 of its representatives and employees in relation to the five-year suspension complaint (PSLRB File Nos. 597-02-9). This application is one of the three applications before me.

39 Ms. Bremsak applied to the PSRLB for a reconsideration of that part of Bremsak 2 (original complaints) that dismissed the first original complaint.

40 The Institute discontinued its judicial review applications of Veillette 1 (2-year disciplinary suspension from elected office) and Veillette 2 (indefinite administrative suspension from elected office).

41 On April 28, 2010, the Institute discontinued its judicial review application of Bremsak 2 (original complaints).

42 On June 17, 2010, the Federal Court ordered that a representative of the Institute appear before the Court at a civil contempt hearing to deal with the Institute’s failure to comply with paragraphs 143 and 145 of Bremsak 2 (original complaints): Bremsak v. Canada Professional Institute of the Public Service (“Bremsak 5 (order to appear to respond to civil contempt charges)”), 2010 FC 661.

43 On November 30, 2010, a panel of the PSLRB dismissed Ms. Bremsak’s application to reconsider that part of Bremsak 2 (original complaints) that dismissed the first original complaint: Bremsak v. Professional Institute of the Public Service of Canada (“Bremsak 6 (denial of reconsideration of Bremsak 2 (original complaints))”), 2010 PSLRB 126.

44 On April 1, 2011, the Federal Court issued a stay of the civil contempt hearing pending the decision of a panel of the PSRLB on the five-year suspension complaint: Bremsak v. Professional Institute of the Public Service of Canada (“Bremsak 7 (stay of contempt hearing pending a decision on the five-year suspension complaint)”), 2011 FC 406. The Court explained its decision in the following terms:

…

[10] Clearly a central aspect of the Institute’s defence to a finding of contempt is lawful excuse. During the hearing in Vancouver I had ruled out any evidence by either party on the issue of whether the Executive Committee’s decision to suspend her from membership on the basis of the harassment complaint could not be entertained by the Court because the matter of the validity of the Executive Committee’s decision was before the PSLRB [PSLRB File No. 561-02-430] and it would be improper for me to adjudicate on the issue which Parliament had mandated the PSLRB, a specialized tribunal in labour matters, to deal with. In my view, success or failure by Ms. Bremsak before that tribunal is material to her success or failure in the contempt hearing. In the interest of justice, I expressed, yesterday, my opinion to the parties that I should stay the proceedings before me until the PSLRB adjudicated on her complaints on her membership suspension or until a judicial review of that decision was determined, a matter which must be dealt with by the Federal Court of Appeal.

…

45 Ms. Bremsak appealed Bremsak 7 (stay of contempt hearing pending a decision on the five-year suspension complaint) to the Federal Court of Appeal. The Institute supported the appeal.

46 On April 26, 2011, a panel of the PSRLB, dismissed Ms. Bremsak’s unfair labour practice complaint (PSLRB File No. 561-02-421) and application for consent to prosecute (PSLRB File No. 597-02-8) North Shore Investigations and Mr. Mattern for their role in investigating the April 2009 harassment complaints and the June 2009 harassment complaint: Bremsak v. North Shore Investigations and Mattern (“Bremsak 8 (complaint against Mr. Mattern and application for consent to prosecute)”), 2011 PSLRB 56.

47 On July 22, 2011, a panel of the PSLRB dismissed Ms. Bremsak’s four complaints (PSLRB File Nos. 561-02-408, 409, 415 and 416) and five applications for consent to prosecute (PSLRB File Nos. 597-02-1, 2 and 5 to 7) that related essentially to the Institute’s failure to comply with Bremsak 2 (original complaints): Bremsak v. Professional Institute of the Public Service of Canada et al. (“Bremsak 9 (complaints and applications for consent to prosecute related to the Institute’s failure to comply with Bremsak 2 (original complaints))”), 2011 PSLRB 95.

48 Ms. Bremsak’s sought, from the Federal Court of Appeal, judicial review of Bremsak 9 (complaints and applications for consent to prosecute related to the Institute’s failure to comply with Bremsak 2 (original complaints)).

49 On September 19, 2011, the Federal Court of Appeal set aside Bremsak 7 (stay of contempt hearing pending a decision on the five-year suspension complaint) and directed the Federal Court to decide the civil contempt charge against the Institute: Bremsak v. The Professional Institute of the Public Service of Canada (“Bremsak 10 (order to decide on the civil contempt charges)”), 2011 FCA 258.

50 The Federal Court resumed hearing the civil contempt charges and, on February 16, 2012, found the Institute guilty of failing to implement Bremsak 2 (original complaints): Bremsak v. Professional Institute of the Public Service of Canada (“Bremsak 11 (civil contempt charges)”) 2012 FC 213. The Court ordered the parties to attempt to find an appropriate remedy to the contempt finding. The Court had to approve the settlement; otherwise, it would hear further submissions and determine the appropriate remedy.

51 The Institute appealed Bremsak 11 (civil contempt charges) to the Federal Court of Appeal.

52 On March 15, 2012, the Federal Court of Appeal dismissed Ms. Bremsak’s judicial review application of Bremsak 9 (complaints and applications for consent to prosecute related to the Institute’s failure to comply with Bremsak 2 (original complaints)): Bremsak v. Professional Institute of the Public Service of Canada (“Bremsak 12 (judicial review of Bremsak 9 (complaints and applications for consent to prosecute related to the Institute’s failure to comply with Bremsak 2 (original complaints))”), 2012 FCA 91

53 On May 22, 2012, the Federal Court of Appeal dismissed the Institute’s appeal of Bremsak 11 (civil contempt charges): Professional Institute of the Public Service of Canada v. Bremsak (“Bremsak 13 (appeal of Bremsak 11 (civil contempt charges))”), 2012 FCA 147.

54 As of the conclusion of the hearing before me, Ms. Bremsak remained suspended from membership and had not been reinstated into her elected offices with the Institute.

55 On November 29, 2012, the Federal Court ordered the Institute to pay a fine and compensation to Ms. Bremsak for its failure to comply with Bremsak 2 (original complaints)): Bremsak v. Professional Institute of the Public Service of Canada (“Bremsak 14 (civil contempt remedy)”), 2012 FC 1396. The Institute has appealed Bremsak 14 (civil contempt remedy) to the Federal Court of Appeal.

56 On December 3, 2012, Ms. Bremsak requested that I consider the impact of Bremsak 14 (civil contempt remedy) on the complaints and applications before me. I am addressing that request later in this decision.

B. Non-reinstatement complaint and related application for consent to prosecute

57 Ms. Bremsak named the Institute as well as 22 of its representatives and employees as respondents; they are identified in the Appendix I to this decision. The issue relates to Ms. Bremsak requesting reinstatement to her positions in the Institute with a right to attend the 2009 Regional Council meeting, on the basis of Veillette 2 (indefinite administrative suspension from elected office).

58 In the non-reinstatement complaint, Ms. Bremsak stated that she or her representative took the following steps to have her reinstated:

• “[o]n June 3, 2009, the Claimant’s Representative spoke to the PIPSC Vancouver Branch Executive prior to their scheduled meeting and served them a copy of the 2009 PSLRB 64 decision …”; Ms. Bremsak’s representative asked if the Vancouver Branch Executive would reinstate Ms. Bremsak and recognize her as a member of the Executive; the Vancouver Branch Executive refused;
• on June 4, 2009, Ms. Bremsak’s representative contacted the Institute’s general counsel and did not receive a response;
• on June 4, 2009, Ms. Bremsak spoke to Dan Jones, a member of the Institute’s Board of Directors and a B.C./Yukon regional director, who advised her that the suspension would remain in place until a panel of the PSLRB ruled on her complaint; and
• on June 5, 2009, Ms. Bremsak requested clarification of her status by email since the order in Veillette 2 (indefinite administrative suspension from elected office) called for an amendment of the Policy Related to Members and Complaints to Outside Bodies and Evan Heidinger, a Vancouver Branch office staff representative, indicated that the Policy Related to Members and Complaints to Outside Bodies would remain in effect and that it had no effect on Ms. Bremsak’s situation.

59 The nub of the non-reinstatement complaint as outlined by Ms. Bremsak is that, because Ms. Bremsak was not a delegate, she was not eligible to have her expenses paid to the 2009 Regional Council meeting. The non-reinstatement complaint provides in part as follows:

…

… Since the Complainant does not have the status of either a delegate or guest, she is also not allowed to participate in the evening dinner… Since this year’s Annual General Meeting is in Kelowna, the Complainant will incur significant costs in travel, time lost from work, accommodation and meals. All this is based on the fact that PIPSC refuses to obey the PSLRB order which found their Policy to be unlawful.

…

60 By agreement between Ms. Bremsak’s representative and counsel for the respondents, I was advised that Ms. Bremsak alleged a breach of paragraphs 188(b) and (e) of the Act for the non-reinstatement complaint.

61 Ms. Bremsak also filed an application for the PSLRB’s consent to prosecute the persons named as respondents to the non-reinstatement complaint.

C. Retaliation complaint and related application for consent to prosecute

62 Ms. Bremsak named the following officers of the Vancouver Branch Executive in the retaliation complaint: Ms. Kerr, President, of the Vancouver Branch, and Mr. Kendell, Quinton Jansen, Terry Peters and Mr. Ansari, all members of the Vancouver Branch Executive.

63 The retaliation complaint specifies the underlying issue as follows:

…

On Mar 22, 2009, the Complainant sent an email to the Vancouver Branch to formally request to be a delegate at the 2009 BC/Yukon regional council (BC/Yukon Annual General Meeting). The complainant informed the Vancouver Branch under Section 188 of the PSLRA that no representative of an employee organization shall impose a penalty on the complainant for filing her complaint with the PSLRB. If they refused to put the Complainant’s name forward they would have violated the PSLRA and as such the Complainant would be left with no choice to but to file a complaint with the PSLRB. The Complainant suggest [sic] that the Vancouver Branch pass this issue to go back to the PIPSC Board of Directors in a similar fashion to the BC/Yukon Regional Executives whereby they referred it back to the PIPSC Board of Directors.

…

On April 9, 2009, several members of the PIPSC Vancouver Branch Executive filed a complaint against the Complainant alleging the Complainant had threatened them with the Mar 22, 2009 email.

…

64 By agreement between Ms. Bremsak’s representative and counsel for the respondents, I was advised that Ms. Bremsak alleged a breach of paragraphs 188(b) and (e) of the Act for the retaliation complaint.

65 Ms. Bremsak also filed an application for the PSLRB’s consent to prosecute the persons named as respondents to the retaliation complaint.

D. Five-year suspension complaint and related application for consent to prosecute

66 Ms. Bremsak named the Institute as well as 23 of its representatives and employees as respondents; they are identified in the Appendix I to this decision. This complaint is about a five-year suspension that the Institute imposed on Ms. Bremsak after it carried out investigations that found that she had harassed other members of the Vancouver Branch Executive.

67 The salient part of the complaint outlines that Bremsak 2 (original complaints) found that the Institute violated section 188 of the Act when “… they illegally suspended the Complainant using PIPSC [sic] newly created Policy Relating to Members and Complaints to Outside Bodies.” Other salient parts of the complaint are the following:

…

October 21, 2009 – The Complainant received two letters, dated October 20, 2009, whereby the PIPSC Executive Committee found the complainant guilty of 16 of 19 counts of harassment. As such, they suspended the Complainant from PIPSC membership for 5 years. Furthermore, the Respondents threatening the Complainant’s Representative from any contact with the Respondents because the Complainant’s Respondent had provided several members with the 2009 PSLRB 64 finding.

According to the PIPSC’s published Dispute Resolution Policy at the time, The Executive Committee did not have the authority to discipline any member. Furthermore, no hearing took place. As such, natural justice has not been followed.

…

According to the PIPSC’s published Harassment Policy, the definition of harassment is as follows:

Harassment is any unwelcome or unwanted action by any person(s) that occurs in an Institute-related setting (such as Institute office, other worksites, business-related trips, lunches or social functions) that humiliates, insults, demeans, embarrasses or degrades. The action can be verbal or physical, on a single or repeated basis.

At no time has the Complainant humiliated, insulted, demeaned, embarrassed or degraded any members.

PIPSC’s investigator defined harassment as any “unwelcome and unwanted” behaviour, which is not the definition of harassment according to PIPSC Harassment Policy.

…

The Respondents have continued to refuse to re-instate the Complainant. The Respondents failed in their attempts to have the Federal Court of Appeal and the PSLRB to extend the Complainants illegitimate suspension. The Respondents trumped up fake charges of harassment that do not meet the definition of harassment according to the PIPSC’s Harassment Policy. The Respondents used an unpublished policy to discipline the Complainant. There is no question that the Respondents were in violation of PIPSC’s Conflict of Interest Policy in dealing with the Complainant.

This conscious act by the Respondents is again another violation of PSLRA section 188. PIPSC has intentionally violated the Complainant’s rights as a member with regard to this complaint.

…

[Sic throughout]

[Bold in the original, underline added]

68 By agreement between Ms. Bremsak’s representative and counsel for the respondents, I was advised that Ms. Bremsak alleged a breach of paragraphs 188(b), (c), (d) and (e) of the Act for the five-year suspension complaint.

69 Ms. Bremsak also filed an application for the PSLRB’s consent to prosecute the persons named as respondents to the five-year suspension complaint.

II. Preliminary matters

70 I held a pre-hearing conference with the parties on April 27, 2011 and made orders consolidating the non-reinstatement, retaliation and five-year suspension complaints and the related applications for consent to prosecute in PSLRB File Nos. 597-02-3, 4 and 9 for hearing and other orders for the expeditious hearing of these matters. One of the orders was that Ms. Bremsak was to deliver the particulars of the sections of the Act that she would rely on.

71 Ms. Bremsak originally relied on paragraphs 188(b) and (c) of the Act in the non-reinstatement and retaliation complaints and on paragraphs 188(b), (c), (d) and (e) in the five-year suspension complaint. The parties later agreed that Ms. Bremsak relied instead on paragraphs 188(b) and (e) in the non-reinstatement and retaliation complaints.

72 On July 19, 2011, the Institute applied to separate the applications for consent to prosecute from the hearing of the merits of the unfair labour practice complaints and to hear the applications for consent to prosecute later. I denied the application. In my view, it was clear from reading the file materials that the evidence for the complaints and related applications for consent to prosecute was the same and that it would be expeditious to hear all the arguments after the evidentiary portion of the hearing ended and to resolve everything in one decision.

III. Hearing

73 The hearing was originally scheduled for August 22 to September 2, 2011, and arguments were to be heard October 27 and 28, 2011. It was clear following the end of the hearing day on September 2 that two more days would not be sufficient to finish these matters. More days were scheduled from April 17 to 20, 2012. On April 20, as the parties had not finished presenting their closing oral arguments, they agreed that an additional day was required to complete the arguments, which was later scheduled for June 11, 2012.

A. Procedural matters

1. Separating the complaints and related applications for consent to prosecute

74 The Institute renewed its application to separate the applications for consent to prosecute from the complaints. I denied the application and indicated that, as a matter of logic, I would decide the complaints first. I informed that parties that, if I required further submissions, I would ask for them.

2. Admissibility of documents

75 At the pre-hearing conference on April 27, 2011, I ordered the advance disclosure of documents on which each party relied and also directed that the documents be organized into binders or bound, Tab indexed and paginated. The parties were at liberty to bring any document disclosure disputes before me.

76 At the outset of the hearing, the respondents objected to the relevance of certain materials filed by Ms. Bremsak. Many of those materials related to enforcement proceedings held after Bremsak 2 (original complaints) was issued and to correspondence about disclosure requests in Bremsak 2 (original complaints). Those documents are listed in Appendix II to this decision. The Institute argued that those documents were not relevant to the proceeding before me. If documents related to disclosure requests in Bremsak 2 (original complaints) had been admitted, it would have led to further oral testimony. In any event, in Bremsak 2 (original complaints) a panel of the PSRLB ruled on document disclosure issues at paragraphs 40 to 48. Some of the documents were being led purely for credibility purposes and were collateral to the issues to be decided, and the Institute believed that they should not have been admitted: see Trenholm v. Staff of the Non-Public Funds, Canadian Forces, 2006 PSLRB 66, at para 37; and Sopinka, Lederman and Bryant, The Law of Evidence in Canada, 3rd ed. (2009), at para 16.200.

77 I provided an oral ruling at the hearing, which I will now confirm. The Institute took exception to the documents listed in Appendix II to this decision. Ms. Bremsak’s representative argued that they were relevant to witness credibility. My task is to hear three specific complaints and three specific related applications for consent to prosecute. My task is not to hear the re-litigation of issues that are before the Federal Court in enforcement proceedings or that were before a panel of the PSRLB in Bremsak 2 (original complaints), Bremsak 6 (denial of reconsideration of Bremsak 2 (original complaints)), Bremsak 8 (complaint against Mr. Mattern and application for consent to prosecute) or Bremsak 9 (complaints and applications for consent to prosecute related to the Institute’s failure to comply with Bremsak 2 (original complaints)). I make the following rulings about the documents listed in Appendix II.

a. Tabs 13, 14 and 15 of Exhibit G-1

78 The documents at Tabs 13, 14 and 15 of Exhibit G-1 deal with whether Bremsak 2 (original complaints) should be enforced. Ms. Bremsak filed the non-reinstatement and retaliation complaints before Bremsak 2 (original complaints) was decided and the complaints and related applications for consent to prosecute before me do no relate to the enforcement of Bremsak 2 (original complaints). An order has to be issued before a party can seek its enforcement and section 52 of the Act provides a mechanism for enforcing the order made by a panel of the PSLRB.

79 I did not preclude Ms. Bremsak’s representative from making arguments but dealt only with the admissibility of the documents at Tabs 13, 14 and 15 of Exhibit G-1. I found that they are not relevant to whether the complaints before me are proved and I ruled them inadmissible.

b. Tabs 17 and 18 of Exhibit G-1

80 The documents at Tabs 17 and 18 of Exhibit G-1 relate to the Institute’s application for judicial review, and related discontinuance of application for judicial review, of Bremsak 2 (original complaints). Ms. Bremsak filed the non-reinstatement and retaliation complaints before Bremsak 2 (original complaints) was decided and the complaints and related applications for consent to prosecute before me do no relate to the enforcement of Bremsak 2 (original complaints). Rather, the matters before me relate to specific, distinct alleged breaches of the Act. Therefore, I found that the documents at Tabs 17 and 18 of Exhibit G-1 are not relevant to the matters before me and I ruled them inadmissible.

c. Tabs 41, 47, 48, 49, R, S, T and U of Exhibit G-1

81 The documents at Tabs 41, 47, 48, 49, R, S, T and U of Exhibit G-1 were filed or created in the civil contempt charge proceedings following Bremsak 2 (original complaints). They were offered for the purpose of impeaching the general credibility of witnesses, before those witnesses gave evidence. Generally, the answer a witness provides to a question which is not relevant to the main issue before a trier of fact is treated as final and a party may not offer contradictory proof (the collateral fact rule). This helpfully focuses parties on the real issue that has to be decided, without unnecessary sidetracking: see Trenholm and The Law of Evidence in Canada. Tab T, for example, was the minutes of the December 15, 2009 meeting of the Institute’s Executive Committee, held two months after the decision to suspend Ms. Bremsak from membership in the Institute, dealing with the posting of her reinstatement notice pursuant to Bremsak 2 (original complaints). This was likely relevant in any contempt proceeding. However, the real issues that I have to decide are the merits of the non-reinstatement, retaliation and five-year suspension complaints. The documents are not relevant to the issues before me in these complaints.

82 Ms. Bremsak’s representative stated that the documents at Tab 41 of Exhibit G-1, an email exchange of November 5, 2010, are relevant to the April 2009 harassment complaints and the June 2009 harassment complaint. These documents relate to any entirely different matter. The language used when dealing with another member of the Institute at another time does not tend to bear on whether Ms. Bremsak harassed the complainants in the matters before me. I did not find those documents as relevant to what happened between Ms. Bremsak and the Institute, as alleged in the complaints before me.

83 The documents at Tab 47 of Exhibit G-1 are an exchange of emails of January 4 to 8, 2010 about Ms. Bremsak not being invited to the January 25, 2010 SP Vancouver Sub-Group Executive Meeting. I found that those documents were not relevant to the proceedings before me.

84 The document at Tab 48 of Exhibit G-1 is a portion of the transcript of Ms. Bremsak’s cross-examination in the context of civil contempt charge proceedings in the Federal Court. I did not find that document relevant to the proceedings before me.

85 The document at Tab 49 of Exhibit G-1 is Bremsak 5 (order to appear to respond to civil contempt charges). That document does not help me decide the validity of the non-reinstatement, retaliation or five-year suspension complaints.

86 The documents at Tabs R, S and U of Exhibit G-1 are Isabelle Roy’s affidavit, supplemental affidavit and transcript of cross-examination on affidavits filed in the civil contempt charge proceedings in the Federal Court. Ms. Bremsak sought to introduce those documents to show that Ms. Roy has a credibility issue. The respondent planned to call Ms. Roy to testify and Ms. Bremsak would have an opportunity to cross-examine Ms. Roy. Ms. Roy’s testimony in a different proceeding strikes me as irrelevant to the issues that I have to decide in the non-reinstatement, retaliation or five-year suspension complaints. It could be an issue in the civil contempt charge proceedings in the Federal Court but not before me, although it could be collateral to the issues I have to decide. The Federal Court has to power to decide whether the Institute complied with the order in Bremsak 2 (original complaints), not me.

87 I found that the documents at Tabs 47, 48, 49, R, S, T and U of Exhibit G-1 are not relevant to the non-reinstatement, retaliation and five-year suspension complaints. Those documents do not make it more probable than not that the Institute breached the Act with respect to the distinct, separate allegations raised in the complaints before me. I did not admit them in evidence.

d. Tabs E and P of Exhibit G-1

88 The document at Tab E of Exhibit G-1 is a three-page letter sent by Mr. Grenville-Wood on September 8, 2008 to request disclosure of documents in the proceedings resulting in Bremsak 2 (original complaints). The document at Tab P of Exhibit G-1 also request the disclosure of documents in proceedings resulting in Bremsak 2 (original complaints) and consists of a five-page document, entitled “Disclosure Request for PSRLB Preliminary Hearing – May 2, 2008,” and a two-page June 6, 2008 letter from Mr. Grenville-Wood. Bremsak 2 (original complaints) ruled on issues of document disclosure at para 45 and 46. If Ms. Bremsak believed that ruling to be incorrect she should have sought a judicial review of Bremsak 2 (original complaints). The documents at Tabs E and P of Exhibit G-1 are irrelevant to the issues before me and I found them inadmissible.

e. Tabs 65 and 66 of Exhibit G-1

89 Ms. Bremsak’s representative consented to the removal of Tabs 65 and 66 of Exhibit G-1 on the basis of my ruling dealing with the documents at Tabs E and P of Exhibit G-1.

3. Application for non-suit

90 At the end of Ms. Bremsak’s evidence, the Institute applied for a non-suit. I indicated that I would hear arguments on whether I should hear the non-suit motion. The Institute relied on sections 32 and 36 of the Act, which read as follows:

32. A panel has all the powers, rights and privileges of the Board with respect to any matter assigned to the panel under this Part.

36. The Board administers this Act and it may exercise the powers and perform the functions that are conferred or imposed on it by this Act, or as are incidental to the attainment of the objects of this Act, including the making of orders requiring compliance with this Act, regulations made under it or decisions made in respect of a matter coming before the Board.

91 The Institute’s main point was that a panel of the PSLRB has the jurisdiction to determine its procedures and that it has the authority to hear applications. The application for non-suit should be entertained because some Institute members filed the April 2009 harassment complaints and the June 2009 harassment complaint, which in large part were substantiated after investigations. Requiring those members to testify is further harassment. Additionally, Ms. Bremsak should not be permitted to use section 188 of the Act to retaliate against those members who chose to file the April 2009 harassment complaints and the June 2009 harassment complaint against her. The power to hear a non-suit application is discretionary and incidental to the powers of a panel of the Board to determine its practices and procedures. It is not a procedure frequently or readily granted, but it can be opportune to allow a party to argue that there is no case to meet. The Institute cited McDougall v. Amalgamated Transit Union, Local 1587 (1996), 103 di 29 (C.L.R.B.). The party bearing the burden of proof must establish a prima facie case: see Pilon v. Canada Revenue Agency, 2010 PSLRB 97. In an application for non-suit, a party may elect to call evidence, and the issue is whether a prima facie case is made out. The decision maker is not to weigh evidence: see Prince Rupert Grain Ltd. and British Columbia Terminal Elevator Operators’ Association, [2006] CIRB no. 361.

92 Ms. Bremsak took no position on the application.

93 I declined to hear the application for non-suit and indicated that I would give reasons in my full decision. In my view, it is in the interests of justice to provide Ms. Bremsak with a full hearing of the non-reinstatement, retaliation and five-year suspension complaints. Section 188 of the Act is an important protection for bargaining agent members against arbitrary, discriminatory or bad faith conduct by their bargaining agent. In its present form, it is also a relatively new provision in federal public sector labour relations legislation. Ms. Bremsak’s allegations were serious at face value, which in my view required a reply from the Institute. In particular, one very serious allegation was that the Institute “… trumped up fake charges of harassment …”, alleged in the five-year suspension complaint, which in my view turned out to be entirely without merit. However I was able to determine that lack of merit only after hearing the whole evidence.

94 I note that, in the context of the many complaints and applications that Ms. Bremsak has made with the PSLRB, some, when appropriate, were dealt with on the basis of written submissions. In considering the many complaints and applications filed by Ms. Bremsak, those applications that required a hearing to determine the merits were grouped together. I note that the conduct of Ms. Bremsak and her representative in these matters — including filing multiple applications and complaints — is extremely unusual. A need for closure exists that cannot be properly met by dismissing Ms. Bremsak’s allegations on an application for non-suit. Furthermore, the April 2009 harassment complaints and the June 2009 harassment complaint were serious at face value and resulted in a serious penalty to Ms. Bremsak. These matters merited a full hearing. It would be difficult to determine the application for non-suit without weighing the evidence, which is not permitted. For all of those reasons, I was not prepared to hear the application for non-suit.

4. Ms. Bremsak’s written rebuttal submissions

95 Ms. Bremsak made her closing arguments in oral form, without any written submissions. I was not advised of any intention that Ms. Bremsak would provide further written submissions, and at the close of her oral arguments, the Institute commenced its own. It also filed lengthy written reply submissions. As noted, the hearing did not complete during April 2012 as scheduled as Ms. Bremsak made lengthy oral arguments, and the Institute did not finish its argument. The Institute completed its oral arguments on June 11, 2012. Ms. Bremsak then indicated that she wished to file written submissions. At that point, Ms. Bremsak was in rebuttal. When perusing the materials that Ms. Bremsak sought to file, it became clear that much of her written submissions were a reiteration of her oral arguments; they were not a proper rebuttal, in that they did not address points raised in the Institute’s reply arguments and submissions that had not already been raised by Ms. Bremsak herself in her oral arguments. The parties reviewed Ms. Bremsak’s written submissions during a break and agreed that I would not consider certain paragraphs that I had noted and marked, as they were not proper rebuttal arguments. I then received Ms. Bremsak’s written submissions in their edited form.

5. Leading questions during examination-in-chief

96 Ms. Bremsak’s representative had difficulty framing non-leading questions during the examination-in-chief of his witnesses. I note that he asked them many leading questions. He also had difficulty framing clear and fair questions, supported by a proper factual background while cross-examining the Institute’s witnesses. Although I had the sense that the respondents’ counsel showed remarkable restraint, still, many objections were raised. I provided some assistance to Ms. Bremsak’s representative on how to properly frame questions and I indicated to the respondents’ counsel that, if my assisting Ms. Bremsak’s representative caused him any concerns with respect to the fairness of the hearing, he should make an objection. When he did, I stopped providing assistance to Ms. Bremsak’s representative in the framing of questions.

6. Relevance of Bremsak 14 (civil contempt remedy)

97 Ms. Bremsak requested that I consider the impact of Bremsak 14 (civil contempt remedy) on the complaints and applications before me. The Institute opposed this on the basis that it was clear from Bremsak 7 (stay of contempt hearing pending a decision on the five-year suspension complaint) that it had not been permitted to lead any evidence before the Federal Court in support of the legality of Ms. Bremsak’s five-year suspension from membership in the Institute, The Institute added that the Federal Court and the Federal Court of Appeal have not pronounced on the merits of the suspension. In reply, Ms. Bremsak argued that both she and the Institute are bound by the findings of the Federal Court and Federal Court of Appeal and that there is a public interest in any matter which results in a fine.

98 In my view, Bremsak 14 (civil contempt remedy) is not relevant to any determination that I have to make in the matters before me. The Federal Court had to pronounce on the Institute’s failure to comply with Bremsak 2 (original complaints), while I have to decide unfair labour practice complaints, and related applications for consent to prosecute, that relate to the Institute’s decision to not reinstate Ms. Bremsak after Veillette 2 (indefinite administrative suspension from elected office) was issued and to suspend her from membership in the Institute based on findings of harassment. What I have to decide is whether the actions of the Institute and its representatives constituted violations of section 188 of the Act.

99 I have heard all the relevant evidence in a lengthy hearing concerning the matters before me. It is clear from Bremsak 7 (stay of contempt hearing pending a decision on the five-year suspension complaint) that the Federal Court has not decided any issues concerning the non-reinstatement, the retaliation and the five-year suspension complaints, I therefore decline to consider Bremsak 14 (civil contempt remedy) in determining the matters before me.

B. Summary of the evidence

100 At the hearing, I heard testimony from Ms. Bremsak and Patrice Morin, a witness that she called. I note that Ms. Bremsak’s oral testimony was relatively brief in comparison with her representative’s very long opening statement. The opening statement by her representative was not evidence in these matters. I also heard testimony from Edward Gillis, Ms. Roy, Mr. Kendell, Mr. Peters, Mr. Ansari, Ms. Kerr and Mr. Jansen for the respondents.

101 Despite instructions to confine the issues to the complaints and applications before me, some straying occurred into areas that had already been decided in Bremsak 2 (original complaints). I note that Ms. Bremsak’s representative is not a lawyer, although he has represented her before the PSLRB, the Federal Court and the Federal Court of Appeal. Nevertheless, some of the information adduced before me was of marginal relevance to the issues that I must decide. Therefore, I am not going to recite all the adduced evidence but will deal with the germane points necessary to decide the issues before me. Ms. Bremsak’s representative also had difficulty framing questions that were not leading. Many objections were made about his leading form of questioning and its relevance. More than once, Ms. Bremsak’s representative made what appeared to be tactical objections, meaning that he objected to a question without the necessary legal foundation for an objection, to prevent specific evidence being adduced.

102 As might be expected from a hearing lasting 13 days, the materials before me are voluminous. Each party filed documentary evidence; Ms. Bremsak filed a binder (Exhibit G-1) and loose exhibits (Exhibits G-2 to G-11), while the Institute filed three volumes of bound documents (Exhibits R-1 to R-3) and loose exhibits (Exhibits R-4 and R-5). As a panel of the PSLRB, my task is not to reproduce all the evidence and tendered documents, comprising over one thousand pages, as well as the oral testimony of many hearing days. Instead, I will set out the relevant material facts underlying my decision.

103 When considering the credibility of the witnesses testifying before me, I considered, relied upon and applied the following credibility test, found in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.), at 357:

…

The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say “I believe him because I judge him to be telling the truth”, is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.

The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case.

…

1. Specific context surrounding the non-reinstatement, retaliation and five-year suspension complaints and related applications for consent to prosecute

104 I think it helpful at this stage to set out briefly the specific context surrounding the complaints and applications before me.

105 As noted earlier in this decision, the first original complaint was filed on November 16, 2007, and the second original complaint was dated April 11, 2008 but was filed with the PSLRB on July 8, 2008.

106 In Bremsak 1 (denial of interim relief pending a decision on the first original complaint), Ms. Bremsak had applied for interim relief pending a decision on the first original complaint. Part of her reason for applying for interim relief appears to be so that she could be a delegate at the 2008 Regional Council meetings. A panel of the PSLRB denied her application for interim relief in a letter dated June 6, 2008, with a notice that reasons would follow. The panel issued the written reasons on July 4, 2008: see Bremsak 1 (denial of interim relief pending a decision on the first original complaint). The panel found that Ms. Bremsak did not establish a serious issue that justified the issuance of an interim relief.

107 I pause to note that it should have been clear to Ms. Bremsak that, to be reinstated to her positions with the Institute and therefore to gain the right to be a delegate at events, she had to litigate to conclusion the original complaints. That should have been clear to her at least by the date on which her claim for interim relief was denied in Bremsak 1 (denial of interim relief pending a decision on the first original complaint).

108 Incidents between Ms. Bremsak and members of the Vancouver Branch Executive took place between April 8, 2008 and June 3, 2009, which will be the subject of detailed discussion later in this decision.

109 The hearing of the original complaints proceeded on October 27 to 31, 2008 and May 5 to 7, 2009, with written submissions filed on May 22 and June 1, 17 and 25, 2009.

110 On April 9, 2009, Ms. Bremsak was advised by a letter from Mr. Grenville-Wood (Exhibit R-3, Tab 49, page 540) that the April 2009 harassment complaints had been filed by Ms. Kerr, Mr. Jansen, Mr. Ansari, Mr. Peters and Mr. Kendell, all members of the Vancouver Branch Executive, and that they would be investigated pursuant to the Institute’s Harassment Policy (Exhibits R-3, Tab 50, pages 548 and 549, and R-3, Tab 56, pages 590 and 591, effective August 11, 2007, “the Harassment Policy”) and the Institute’s 2009 Dispute Resolution Policy (Exhibits R-3, Tab 50, pages 558 and 560, and R-3, Tab 67, page 658, effective January 17, 2009, “the 2009 Dispute Resolution Policy”). Copies of those policies were provided to Ms. Bremsak, along with the letter. The salient part of the Harassment Policy reads as follows:

…

3. Definitions

Harassment is any unwelcome or unwanted action by any person(s) that occurs in an Institute-related setting (such as Institute office, other worksites, business-related trips, lunches or social functions) that humiliates, insults, demeans, embarrasses or degrades. The action can be verbal or physical, on a single or repeated basis.

Unwelcome or unwanted in this context means any actions which the person knows, or ought reasonably to know, are not desired by the victim of harassment. The courts have determined reasonableness from the point of view of the victim. In other words, unwelcome and unwanted behaviour is considered harassment based on what a reasonable person would find to be harassment.

…

Harassment by an Institute employee or member may be considered a matter subject to disciplinary action.

Every individual employee and member has the responsibility to adhere to this policy and to conduct him/her self [sic] accordingly. Any employee or member who witnesses harassment taking place in any form at Institute activities must take appropriate steps to end the harassment. The Institute encourages reporting of all incidents of harassment, regardless of who the offender might be.

Complaints shall be filed in accordance with the Institute’s Dispute Resolution Policy…

…

[Emphasis in the original]

At the relevant time, the 2009 Dispute Resolution Policy applied. It provides as follows:

…

Unresolved Complaints

If the complaint remains unresolved, the delegate person(s), where necessary, may appoint an investigator. The investigator will submit a report detailing their findings to the delegated person(s). A copy of the investigator’s report will be provided to all parties (Complainant and Respondent), and they will be given an opportunity to comment on the investigator’s report.

Decisions and Discipline

The Executive Committee’s mandate with respect to dispute resolution is to take into consideration any investigator’s report, and to make decisions that are not arbitrary, discriminatory, or in bad faith.

In some cases, the Executive Committee may decide that discipline is warranted. Discipline of a member by the Executive Committee shall be in accordance with By-Law 24 and can include, but is not limited to, expulsion from membership, suspension from membership for a period of time, removal from any or all office(s) or appointed positions held in the Institute, suspension from any or all office(s) or appointed positions held in the Institute for a period of time, loss of voting privileges for a specified vote or period of time, or other censure or sanction. Disciplinary action against a unionized employee of the Institute will be dealt with pursuant to the applicable collective agreement. In cases involving discipline of a non-unionized employee, the matter will be referred to the applicable manager.

The parties to the dispute shall be informed in writing of the Executive Committee’s decision.

Within fourteen (14) days of receipt of any such decision of the Executive Committee, either party may appeal by written submission to the Board. The review by the Board shall be limited to determining whether the Executive Committee acted within its mandate in rendering such a decision.

…

[Emphasis in the original]

111 The Institute’s Board of Directors approved the 2009 Dispute Resolution Policy on January 17, 2009. The previous 2007 Dispute Resolution Policy (Exhibit R-3, Tab 53, page 563, effective December 7, 2007, “the 2007 Dispute Resolution Policy”) was revised after the amendment of the Institute’s By-Law (“the By-Law”) 24 was approved at the Institute’s November 14 and 15, 2008 annual general meeting (Exhibit R-4, pages 25 to 28). Part “D” of the motion to amend By-Law 24 dealt with giving the Institute’s Executive Committee the authority to make disciplinary decisions, which could be appealed to the Board of Directors. The minutes of the annual general meeting note at page 28 that “[t]hese provisions are now covered under the Dispute Resolution Policy and are no longer required to be in the By-Law.” The amendment repealed a hearing process that contained rights to be heard, to be represented, present evidence and to call witnesses. By-Law 24 (Exhibit R-1, Tab 16, pages 97 and 98) reads as follows:

BY-LAW 24 DISCIPLINE

24.1 Except as provided in By-Law 24.1.1, any member may be suspended or expelled from membership in the Institute, removed from office where applicable or otherwise disciplined in accordance with the Institute’s Dispute Resolution and Discipline Policy, for conduct which in any way adversely affects the interests or reputation, or restricts the activities of the Institute. AGM 2008 (e)

24.1.1 By-Law 24 cannot be used to suspend from membership, expel from membership or remove from office the President or Vice-Presidents. Removal from office shall be in accordance with By-Law 19.6 for the President and in accordance with By-Law 20.6 for Vice Presidents. AGM 2008 (e)

24.2 Except as provided in By-Law 24.2.1, any member of a Group may be suspended from membership in the Group for one hundred and eighty (180) days or less, removed from any or all office(s) within the Group or Sub-Group where applicable, or have voting privileges for any Group or Sub-Group vote(s) suspended by the Group where the Group is duly empowered by its constitution to deal with disciplinary matters for conduct which in any way adversely affects the interest ore reputation, or restricts the activities of the Group. AGM 2008 (e)

24.2.1 A member of the Board acting in their capacity as a member of the Board is exempt from discipline by a Group. AGM 2008 (e)

24.3.1 Where it appears to the Board that a member has done or is about to do an act or thing which would severely and adversely affect the interests or reputation, or restrict activities of the Institute before an alleged misconduct or infraction can be dealt with as provided herein, the Board may temporarily suspend the member concerned from any office and/or position in the Institute. AGM 1998 (e)

24.3.2 Where it appears to a Group Executive, empowered to deal with disciplinary matters, that a member of their Group has done, or is about to do, any act or thing which would severely and adversely affect the interests or reputation of the Group before an alleged misconduct or infraction can be dealt with as provided herein, the Group Executive may temporarily suspend the member concerned from any office and/or position in the Institute.

24.3.3 It is recognized that the power to impose a temporary suspension in advance of a disciplinary action is an extraordinary one, and must be exercised with great restraint and only in extraordinary circumstances. The President shall be informed immediately of the temporary suspension of any member.

24.3.4 Where the matter is the responsibility of the Board of Directors, the Executive Committee may exercise the power of the Board set forth in By-Law 24.3.1. In such cases, the Executive Committee shall present a comprehensive report to the Board within thirty (30) days of the effective date of the suspension, including the allegations and supporting evidence. The Board shall consider this report at its next regular meeting, and may approve, rescind or vary the suspension.

24.3.5 The total duration of a temporary suspension for any single act shall not exceed ninety (90) days. If, by the end of that period, ongoing disciplinary proceedings have not been completed, the suspension shall continue until completion of said proceedings. Any temporary suspension shall cease immediately if it is decided not to proceed with disciplinary action. AGM 1998 (e)

24.3.6 A member temporarily suspended shall be informed by the President, or the Group President concerned, in writing, delivered by registered mail or other suitable alternative method, of this action and the reasons therefore. The member retains his full rights with respect to any contemplated disciplinary action. AGM 2008 (e)

[Emphasis in the original]

The minutes of the January 17, 2009 meeting of the Board of Directors (Exhibit R-3, Tab 71, page 674) described the 2009 Dispute Resolution Policy as follows:

…

The policy represents the final piece of the new approach in dealing with disciplinary matters. The amended policy will now work in conjunction with amended ByLaw-24, i.e., that in matters of discipline, the Executive Committee will be the primary body to review cases and make determinations on discipline, leaving the Board as the body that will become an appeal mechanism. Appeals will be restricted to whether or not the Executive Committee acted within its mandate.

It is noted that the Dispute Resolution Policy is already in place and has been since August 2008. It is being amended to provide an opportunity for an appeal mechanism to the Board. This is not a new policy but simply an amendment following the AGM.

…

112 On May 4, 2009, the Institute appointed Mr. Mattern to investigate the April 2009 harassment complaints and issued written terms of reference about the investigation (Exhibit R-1, Tab 23, page 140). I note that part of the terms of reference included the following direction: “The investigator will have the discretion to conduct the investigation in such a manner as seems to the investigator to be appropriate in the circumstances, but at no time in a manner that is arbitrary, discriminatory or in bad faith.”

113 A panel of the PSLRB issued Veillette 2 (indefinite administrative suspension from elected office) on May 29, 2009. At that time, another panel of the PSLRB had not yet dealt fully with the original complaints, and the related hearing was ongoing.

114 Ms. Bremsak’s representative emailed the Institute on Ms. Bremsak’s behalf, demanding her reinstatement.

115 On June 3, 2009, Ms. Bremsak and her representative visited the Old Bavaria Haus Restaurant, where a joint meeting of the Vancouver Branch Executive and the Vancouver – CRA Branch Executive was scheduled. Ms. Bremsak’s representative had a tape recorder in plain view. Ms. Bremsak was nearby, holding her child. I reviewed the transcript (Exhibit R-2, Tab 33, pages 275 to 277) and listened to the recording of the encounter. Ms. Kerr, President of the Vancouver Branch, informed Ms. Bremsak’s representative that it was illegal for him to record the meeting, and he was asked to leave. During the meeting, Ms. Bremsak’s representative said the following:

…

… I’m telling you right now if you refuse to follow the Federal Court Order from the PSLRB I will ensure that you will be dealt with according to the Act.

… will you step aside Ms. Kathy today is the 3rd. Will you step aside … on this meeting and … put Irene back as President. I take the silence of Kathy as no from Kathy.

…

My presence here as the representative … direction

I am giving you what the Federal Court has ordered

…

Alright … I’ll leave the judgement here … also just so you know I have contacted your representatives in this and I emailed this morning stipulating that in our understanding that any court order that was ordered is effective immediately unless stipulated otherwise. Failure to follow that is a failure to follow the Federal Court order and that email is part of the package here I have given where …

…

Attached to the package … documents is a copy to your lawyers & PIPSC already.

Furthermore … it is important for each and every one of you to understand according to the PSLRA section 200 each and every one of you that are in violation are subject up to a $1000 fine per action.

…

So we are basically saying that if you do not put Irene back into that position we will deem the Vancouver branch has disregarded the order from the Federal Court and we will carry forward every action further.

…

Ms. Bremsak’s representative did not speak in an angry tone or rant or rave. However, it is clear for reasons set out later in this decisions that it was a chilling and threatening event and resulted in the cancellation of the business portion of the meeting. Harassment does not depend on whether words are angrily spoken.

116 On June 11, 2009, the Institute appointed Mr. Mattern to investigate the June 2009 harassment complaint. Ms. Bremsak was notified of the June 2009 harassment complaint and investigation by Mr. Grenville-Wood and was provided again with copies of the Harassment Policy and the 2009 Dispute Resolution Policy.

117 As noted earlier, Ms. Bremsak filed the retaliation complaint against Stephen Lee, Mr. Ansari, Mr. Kendell and Ms. Kerr on June 29, 2009.

118 On September 9, 2009, Mr. Mattern emailed Ms. Bremsak concerning the draft investigation findings report for the April 2009 harassment complaints (Exhibit R-2, Tab 40, pages 324 to 390) and the draft investigation findings report for the June 2009 harassment complaint (Exhibit R-2, Tab 41, pages 391 to 461) and asked her to review their accuracy and to provide comments by the close of business on October 2, 2009 (Exhibit R-2, Tab 42, page 463).

119 On October 1, 2009, Ms. Bremsak’s representative responded by email (Exhibit R-2, Tab 42, page 462) to Mr. Mattern’s draft reports and enclosed the following:

• a copy of Bremsak 2 (original complaints) with a note that two of the respondents, Ms. Kerr and Mr. Kendell, were also named in the original complaints;
• a copy of the non-reinstatement complaint, with a note stating that “… the action of the Vancouver Branch to continue their suspension is against the law;”
• a copy of the retaliation complaint;
• a copy of the Institute’s reply to the retaliation complaint, with a reference to its paragraph 13 that states that “[a]t all relevant times, the Respondents were acting in accordance with the directions and instructions of the Institute’s Board of Directors . . .”, and the statement that “[t]his clearly proves that the first set of harassment complaints were [sic] orchestrated by [the] PIPSC Board of Directors”; and
• Ms. Bremsak’s responses to certain allegations (it is unclear what documents were filed in support of her responses).

The October 1, 2009 email from Ms. Bremsak’s representative contains no comments about the accuracy of the information in the reports of Mr. Mattern’s interviews with Ms. Bremsak or members of the Vancouver Branch Executive. I note with interest the following information in the email of October 1, 2009:

…

3. As a result this unfounded harassment complaints, we filed another complaint with the PSLRB (File No. 561-34-404) against the Board of Directors, Kathleen Kerr, Geoff Kendell, Stephen Lee and Siddiq Ansari, for their illegal suspension of Ms. Bremsak. We are seeking Prosecution of the Respondents for violating the PSLRA under section 200 and 205.

4. As a result this second unfounded harassment complaints, we filed anohter complaint with the PSLRB (PSLRB 561-02-408 & 597-02-01) against Kathleen Kerr, Geoff Kendell, Stpehen Lee and Siddq Ansari. We are seeking Prosecution of the Respondents for violating the PSLRA under Section 200 and 205.

…

[Sic throughout]

120 Mr. Mattern submitted his final reports on both the April 2009 harassment complaints and the June 2009 harassment complaint to the Institute on or about October 1, 2009. He submitted the following:

• an investigation findings report for the April 2009 harassment complaints (Exhibit R-2, Tab 43, pages 464 to 514-52);
• an investigation analysis report for the April 2009 harassment complaints (Exhibit R-1, Tab 14, pages 42 to 58);
• an investigation findings report for the June 2009 harassment complaint (Exhibit R-2, Tab 44, pages 515 to 530-26; and
• an investigation analysis report for the June 2009 harassment complaint (Exhibit R-2, Tab 45, pages 531 to 534).

In his investigation analysis report for the April 2009 harassment complaints (Exhibit R-1, Tab 14, pages 42 to 58), Mr. Mattern concluded that 12 of the 15 allegations were proved. He determined that Ms. Bremsak’s conduct caused the members of the Vancouver Branch Executive to feel bullied, intimidated and threatened and that that met the Institute’s definition of harassment.

121 With respect to the June 2009 harassment complaint, Mr. Mattern left it to the Institute to determine whether the Harassment Policy applied to the conduct displayed by Ms. Bremsak’s representative at the June 3, 2009 meeting at the Old Bavaria Haus Restaurant in her presence, while she remained silent (Exhibit R-2, Tab 45, page 534). Mr. Mattern concluded that Ms. Bremsak’s representative’s behaviour at that meeting was “… totally inappropriate, threatening and offensive to each of the Complainants.” He found as follows:

…

I am of the opinion when considering the recent history of the Respondent and the Vancouver Branch Executive, the balance of probability would strongly suggest the disruption of the joint Vancouver Branch and CRA Branch Executive Meeting on June 3, 2009 was planned and orchestrated by both Irene Bremsak and John Lee. However, despite this strong speculation that Irene Bremsak was involved behind the scenes, the fact of the matter is that the Respondent was not outwardly involved in the incident. Irene Bremsak did nothing, said nothing, nor directed John Lee in any manner during the incident at the restaurant.

…

122 The Institute’s Executive Committee is a subset of the Institute’s Board of Directors. It considered Mr. Mattern’s investigation reports (Exhibits R-2, Tab 43, pages 464 to 514-52, R-1, Tab 14, pages 42 to 58, R-2, Tab 44, pages 515 to 530-26, and R-2, Tab 45, pages 531 to 534). By the suspension letter, the Executive Committee advised Ms. Bremsak on October 20, 2009, that it decided on October 15, 2009, that she was suspended from membership for five years and that she would not be permitted to run for office or vote for officers or otherwise participate in the Institute’s affairs and advised her as follows:

…

The behaviour you have demonstrated represents a pattern of threats and intimidation of members that has no place in our organization. Your actions have created a toxic environment and have led otherwise committed members to question their involvement with the Institute. This behaviour will not be condoned or tolerated by the Institute.

The Executive Committee has directed that you be suspended from membership in the Professional Institute of the Public Service of Canada for a period of five (5) years, effective immediately. During this period, you are not permitted to be a candidate for office, to vote for officers or to otherwise participate in the affairs of the Institute. For greater clarity, you are not permitted to be present at any Institute facility, meeting or function during the five-year period, In addition, you are strongly cautioned to make no attempt to further harass or in any way seek retribution against the complainants for having filed complaints against you. Finally, you will be held responsible for any actions of your spouse, John Lee, including threatening of intimidating electronic mail messages, telephone calls or discussions with the complainant and other member.

You will remain a member of your bargaining unit, and the Institute will provide representation in labour relations matters during this time should the need arise.

…

Further, the suspension letter advised Ms. Bremsak as follows that she could appeal the decision:

…

Pursuant to the Institute’s policy on dispute resolution, within fourteen (14) days of receipt of this decision of the Executive Committee, you may appeal by written submission to the Board of Directors. The review by the Board shall be limited to determining whether the Executive Committee acted within its mandate in rendering its decision.

…

I find as a fact that Ms. Bremsak was informed of her right to appeal her suspension and that she did not exercise that right. Instead, she appears to have filed the five-year suspension complaint on December 11, 2009. I do not accept any of Ms. Bremsak’s evidence about not filing or about having an intent to file an appeal as there is no ring of truth to this testimony. I note that Ms. Bremsak has demonstrated no inhibition in instituting proceedings before the PSLRB and the Federal Courts. She knew about the appeal process to the Board of Directors and had been provided with copies of the 2009 Dispute Resolution Policy. In light of all the prevailing circumstances, it is my finding that she chose not to exercise her right of appeal, but rather filed her five year suspension complaint directly with the Board.

123 As Ms. Bremsak did not appeal her suspension from membership to the Institute’s Board of Directors, I am not prepared to speculate what the result of that appeal would have been. It is clear that she did not exhaust all internal steps before she filed the five-year suspension complaint.

124 On October 28, 2009, the Federal Court of Appeal dismissed an application by the Institute to stay the order in Veillette 2 (indefinite administrative suspension from elected office) until the Institute’s application for judicial review was heard and disposed of: see Bremsak 3 (denial of stay of Bremsak 2 (original complaints) pending judicial review of both Veillette 2 (indefinite administrative suspension from elected office) and Bremsak 2 (original complaints)).

2. Ms. Bremsak’s testimony

a. Examination-in-chief

125 Ms. Bremsak testified that, as of April 9, 2008, she had one active complaint made under section 188 of the Act filed with the PSLRB against the Institute.

126 Ms. Bremsak testified that she was present on June 3, 2009 at the Old Bavaria Haus Restaurant, when her representative served Veillette 2 (indefinite administrative suspension from elected office) on members of the Vancouver Branch Executive.

127 In her non-reinstatement complaint, Ms. Bremsak named everyone who she believed had a role in enforcing the decision of the Institute’s Board of Directors.

128 Ms. Bremsak said that she works as a compliance officer and that she deals with a large amount of legislation.

129 Ms. Bremsak’s view was that all the policy decisions of the Institute’s Board of Directors have to be approved at an Institute’s annual general meeting. She relied on By-Law 15.2.1 (Exhibit R-1, Tab 16, page 87) which reads as follows:

BY-LAW 15 BOARD OF DIRECTORS

…

15.2 Authority

15.2.1 The Board is a continuing entity which shall exercise the authority of, and act on behalf of, the Institute on all matters, subject to these By-Laws and to policy decisions of General Meetings. Decisions of the Board remain in force until rescinded.

[Emphasis in the original]

130 Ms. Bremsak referred to the By-Law 7.1.5 (Exhibit R-1, Tab 16, page 77) and said that she was a member in good standing from April 9, 2008 to October 20, 2009. By-Law 7.1.5 reads as flows:

BY-LAW 7 RIGHTS OF MEMBERSHIP

…

7.1.5 Members not in good standing shall not be eligible to hold Institute office at any level, to vote in any and all Institute elections, to ratify Group tentative agreements, or to participate in Institute training.

[Emphasis in the original]

She said that she sees no reason why she would be limited in her right to occupy an executive position.

131 Ms. Bremsak testified that nothing in By-Laws 13.6 and 13.7 (Exhibit R-1, Tab 16, page 85) would prevent her from being a delegate to the 2008 Regional Council meetings. By-Laws 13.6 and 13.7 provide as follows:

By-Law 13 General Meetings of the Institute

…

13.6 Delegates Delegates shall be apportioned according to the following:

13.6.1 Board of Directors Every member of the Board shall be a delegate to an Annual or Special General Meeting.

13.6.2 Groups Each Group Executive shall be entitled to the greater of:

1. one (1) delegate for each two hundred (200) of the Group's members, rounded to the nearest two hundred (200), based on its national membership as at December 31, immediately prior to the notice of the meeting, or
2. one (1) delegate. AGM 2008 (e)

13.6.2.1 Groups shall allocate delegates on the basis of the Regional distribution of its membership.

13.6.3 Regions Each Region shall be entitled to one (1) delegate for each two hundred (200) of its members, rounded to the nearest two hundred (200), residing in the Region as at December 31

13.7.1.2 No By-Law shall be enacted, repealed or amended by a General Meeting unless:

1. details of proposed changes were submitted to the Office of the Executive Secretary not later than twelve (12) weeks prior to a General Meeting, and AGM2008(e)
2. details of the proposed changes were provided to all members not later than four (4) weeks prior to a General Meeting.

13.7.1.3 By-Law amendments by resolution from the floor of the General Meeting shall not be permitted.

immediately prior to the notice of the meeting. AGM 2008 (e)

13.6.4 Credentials Committee The Board shall appoint members to the Credentials Committee which shall be responsible for verifying, if required, the status of delegates and to verify the authorization of the official of the constituent body concerned when a delegate is replaced by a substitute.

13.6.5 Retired Members Guild The Executive of the Retired Members Guild shall be delegates to the Annual General Meeting (AGM). AGM 2000 (e)

13.6.6 Substitutes

13.6.6.1 Any delegate may be replaced by a substitute subject to:

1. notification by the delegate that he is unable to attend, and
2. written authorization of the highest elected Officer of the constituent body concerned.

13.6.6.2 Authorization shall be filed with the Credentials Committee for verification as required.

13.7 By-Laws and Resolutions

13.7.1 By-Laws

13.7.1.1 Only a General Meeting may enact, repeal or amend the By-Laws of the Institute.

13.7.1.4 Effective Date By-Laws and any amendments thereto shall take effect only upon approval of the Minister responsible for administering the Canada Corporations Act.

13.7.2 Resolutions

13.7.2.1 Resolutions, in writing, must be received at the Office of the Executive Secretary not less than twelve (12) weeks prior to a General Meeting. AGM 2008 (e)

13.7.2.2 Resolutions submitted contrary to the procedure outlined in these By-Laws may be dealt with by a General Meeting only after all regularly submitted resolutions have been dealt with, except that a General Meeting may accept a resolution as an emergency and deal with it immediately.

13.8 Appointment of Auditors Each Annual General Meeting shall, by resolution, appoint a firm of auditors for the forthcoming year.

[Sic throughout]

[Emphasis in the original]

132 Ms. Bremsak testified that she has never been reinstated to her positions and that she has never been given a reason for it.

133 Ms. Bremsak said that she participated in Mr. Mattern’s April 2009 harassment complaints investigation. She gave him portions of the Act (sections 187 to 194 and 200 to 205) and the dictionary definitions of “harassment,” “threat” and “warning.” She said that he showed some irritation and that he told her that that information might not contribute to his investigation. Ms. Bremsak testified that the following statement in Mr. Mattern’s investigation analysis report for the April 2009 harassment complaints (Exhibit R-1, Tab 14, page 42) was consistent with his approach:

…

During the course of the investigation, the Respondent (and to a much lesser extent, the Complainants) have attempted to involve the Investigator in various past and current adjudication and court cases, which they opine are relevant to the investigation. These cases have been / are being considered by the Public Service Labour Relations Board and / or the Federal Court.

I am neither qualified, nor inclined to become involved in the merits of these cases. Rather, the sole object of this report has been to analyze the individual allegations presented by the Complainants.

…

134 Ms. Bremsak expressed concern about an email exchange between Mr. Gillis and Mr. Mattern (Exhibit G-1, Tab G). Mr. Mattern’s email, sent at 18:58 on August 27, 2009, reads as follows: “My apologies for being unable to call you back today, but I have been in meetings until just a couple of minutes ago. I assume you wish to discuss John Lee’s Email regarding Irene Bremsak’s reinstatement (???)” and Mr. Mattern’s email response of August 28, 2009 at 7:50 a.m. which reads as follows: “We’re good to go for 1300 our time. Please call my office at …” I give no credence to Ms. Bremsak’s concern. Bremsak 2 (original complaints) was released on August 26, 2009. Her representative thought that it was important enough to the investigation to immediately provide a copy of that decision to Mr. Mattern. I note that Ms. Bremsak did not include a copy of her representative’s email to Mr. Mattern in her documents. I surmise that her representative must have emailed Mr. Mattern on August 26 or 27, 2009, shortly after the decision was released, because Mr. Mattern refers to receiving the email from Ms. Bremsak’s representative in an email to Mr. Gillis on August 27, 2009 at 18:58 (Exhibit G-1, Tab G). Of course, an investigator would decide whether such an email would affect whether to continue with the harassment complaints investigation, and Mr. Gillis would have wanted to ensure that Mr. Mattern had all the up-to-date information that could have affected his investigation. None of this discloses any bias on Mr. Mattern’s part or even a reasonable apprehension of bias. It does not disclose any attempt by Mr. Gillis to influence the course of Mr. Mattern’s investigation.

135 Ms. Bremsak testified that the definition of harassment in the Harassment Policy differed from that applied by Mr. Mattern in his investigation analysis report for the April 2009 harassment complaints (Exhibit R-1, Tab 14, pages 42 to 58). She said that they are not identical. Mr. Mattern’s definition was in her words “mushed [sic] together.” She stated that she would have to check them word for word but that they appear different. She then said that the words are identical but that the context differs. She said that the difference is that Mr. Mattern focused on the words “unwelcome” or “unwanted.” The Harassment Policy reads as follows:

…

3. Definitions

Harassment is any unwelcome or unwanted action by any person(s) that occurs in an Institute-related setting (such as Institute office, other worksites, business-related trips, lunches or social functions) that humiliates, insults, demeans, embarrasses or degrades. The action can be verbal or physical, on a single or repeated basis.

Unwelcome or unwanted in this context means any actions which the person knows, or ought reasonably to know, are not desired by the victim of harassment. The courts have determined reasonableness from the point of view of the victim. In other words, unwelcome and unwanted behaviour is considered harassment based on what a reasonable person would find to be harassment.

…

Harassment by an Institute employee or member may be considered a matter subject to disciplinary action.

Every individual employee and member has the responsibility to adhere to this policy and to conduct him/her self [sic] accordingly. Any employee or member who witnesses harassment taking place in any form at Institute activities must take appropriate steps to end the harassment. The Institute encourages reporting of all incidents of harassment, regardless of who the offender might be.

Complaints shall be filed in accordance with the Institute’s Dispute Resolution Policy…

…

[Emphasis in the original]

I note that the only difference in the wording of the two definitions is that the one cited in Mr. Mattern’s investigation analysis report for the April 2009 harassment complaints does not have the words “unwanted and unwelcome” highlighted and that Mr. Mattern eliminated a space between the paragraph describing harassment and the paragraph describing unwelcome or unwanted behaviour.

136 Ms. Bremsak was referred to the draft investigation findings report for the April 2009 harassment complaints (Exhibit R-2, Tab 40, pages 324 to 390). The first allegation of harassment by Mr. Ansari read as follows: “I allege harassment by Irene Bremsak in March 2009 when she verbally threatened to name me in her complaint with the PSLR Board if I did not nominate her as a delegate for the 2009 Regional Council in Kelowna.” Ms. Bremsak admitted that the conversation took place. She said that she and Mr. Ansari worked in the same department and that she did not want him to get caught up in her dispute. He told her that he did not want to talk about the situation; she replied, “Fine.” She said that she did not pursue further discussions with Mr. Ansari. She said that there were no witnesses to their conversation. She said that Mr. Ansari did not inform her that her conduct was offensive. I find that Ms. Bremsak’s evidence was not credible or reliable in the prevailing circumstances: see Faryna. It is clear that she knew that she had been suspended from elected offices by the Institute’s Board of Directors, that she knew that the Vancouver Branch Executive did not impose the suspension, that her issue was with the Board of Directors and that the first original complaint before the PSLRB would have to proceed to conclusion to reverse her suspension. It was clear that her conduct had been unwelcome and unwanted and that she had uttered a threat of naming Mr. Ansari in a complaint with the PSLRB.

137 Ms. Bremsak was referred to Mr. Ansari’s second allegation of harassment in the draft investigation findings report for the April 2009 harassment complaints (Exhibit R-2, Tab 40, pages 324 to 390). The allegation read as follows: “I allege harassment by Irene Bremsak on March 22, 2009 when she threatened by EMail to name me in a new complaint with the PSLR Board if I did not nominate her as a delegate for the 2009 Regional Council in Kelowna.” Ms. Bremsak sent an email dated March 22, 2009 to members of the Vancouver Branch Executive with the subject line, “Request to attend 2009 BC/Yukon Regional Council” (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30). The email reads as follows:

I am formally requesting that the PIPSC Vancouver Branch include my name, Irene Bremsak, as a delegate (rather than an alternate) to the 2009 BC/Yukon Regional Council in June. I have been duly elected to the Vancouver Branch for more than two successive terms. I have attended the majority of the meetings since being elected. Furthermore, I also request the results of a counted vote (immediately after the vote) since that would include the names of each person and how they voted on my attendance.

If you have any concerns, forward the list of delegates to the BC/Yukon Regional Executive, who will in turn forward it to the Board of Directors (I have already spoken to Dan Jones, who agrees that the issue of my eligibility lies only with the BoD). Let the BOD make the final decision regarding my eligibility, asking for outside independent legal opinion to substantiate their position.

As such if I am not included in the Vancouver Branch’s list to the BC/Yukon Regional Executive for the 2009 Regional Council, I will have no choice, but to submit a new complaint to the PSLRB, with the name of each and every executive member of the Vancouver Branch who voted against my attendance, unless able to prove that they voted for my attendance. N.B. Both Kath Kerr and Geoff Kendell were already named in my current complaint to the PSLRB for violating my rights. By not putting my name forward as a delegate, you would be violating my rights as a member of PIPSC and such actions are against sec 188 of the PSLRA, please review if in doubt.

…

[Emphasis added]

Ms. Bremsak said that her intent in the third paragraph was to warn each person, in a way, that he or she did not have to be responsible for not naming her as a delegate and that her problem should be sent back to the Institute’s Board of Directors. She said that she warned them that she had a right to file a complaint with the PSLRB.

138 The Vancouver Branch Executive did not put forward Ms. Bremsak’s name as a delegate to the 2009 Regional Council meeting. Ms. Bremsak agreed with her representative’s leading suggestion that the Vancouver Branch Executive was enforcing the April 9, 2008 decision of the Institute’s Board of Directors (Exhibit R-1, Tab 19, page 126) to suspend her from her elected offices pursuant to the Policy Related to Members and Complaints to Outside Bodies until the first original complaint came to conclusion. I do not accept Ms. Bremsak’s testimony as credible or reliable: see Faryna. When she wrote her March 22, 2009 email requesting the Vancouver Branch Executive to appoint her a delegate to the 2009 Regional Council meeting (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30), Ms. Bremsak knew that the Institute’s Board of Directors had suspended her from her elected offices. She said that, by writing the email, she gave the Vancouver Branch Executive the alternative of putting her name forward as a delegate and that they freely chose not to name her. She said that the Vancouver Branch Executive enforced the suspension. She said that nobody in the Vancouver Branch Executive warned her that her conduct was offensive.

139 Ms. Bremsak was directed to Mr. Jansen’s allegation of harassment about the events of April 24, 2008, which reads as follows: “I allege harassment by Irene Bremsak on April 24, 2008 when she verbally abused me during a telephone conversation regarding the Vancouver Branch Executive’s decision not to submit her name as a delegate to the 2008 Regional Council and my decision not to support her complaint against the Institute.” Ms. Bremsak did not feel that she threatened Mr. Jansen in any way. Mr. Jansen did not tell her that her phone call was unwelcome.

b. Cross-examination

140 Ms. Bremsak admitted that she knew that she was suspended from elected offices but that she still wished to be a delegate to the 2008 Regional Council meetings. She said that she wanted the Vancouver Branch Executive to take a stand against the Policy Related to Members and Complaints to Outside Bodies and her suspension. She wanted to continue to occupy the role of Vancouver Branch president.

141 Ms. Bremsak admitted that a telephone conversation with Ms. Kerr and Mr. Kendell took place on April 14, 2008, in which she told them that, if the Vancouver Branch Executive chose to follow the Policy Related to Members and Complaints to Outside Bodies they would be accomplices to the actions of the Institute’s Board of Directors. Ms. Bremsak agreed that the call’s purpose was to warn the Vancouver Branch Executive and its members that they would have an imminent problem if they continued to follow the Policy Related to Members and Complaints to Outside Bodies and thus break the law. She was not sure whether she told them that paragraph 188(d) of the Act allowed the Vancouver Branch Executive to disregard the Board of Directors’ decision to suspend her.

142 Ms. Bremsak said that it was possible that she told Ms. Kerr in the April 14, 2008 telephone call that paragraph 188(d) of the Act permitted the Vancouver Branch Executive to disregard the decision of the Institute’s Board of Directors to suspend Ms. Bremsak from elected offices. I note that that is clearly stated as information that Ms. Bremsak provided to Mr. Mattern at the July 17, 2009 interview (Exhibit R-1, Tab 30, page 203), as follows:

…

The purpose of my telephone conversation with Kathy Kerr on April 14, 2008 was to alert her that her suspension was illegal and in contravention of Section 188 PSLRA. I wanted to advise Kathy Kerr that Section 188 (d) allowed her and the Vancouver Branch Executive to disregard the ruling of the Board of Directors.

…

Ms. Bremsak admitted that, during the April 14, 2008 conversation, she told Ms. Kerr that, if Ms. Kerr enforced the Policy Related to Members and Complaints to Outside Bodies by removing Ms. Bremsak from office, Ms. Kerr would be acting on the Policy Related to Members and Complaints to Outside Bodies and imposing a penalty on Ms. Bremsak.

143 Ms. Bremsak admitted that she attended the Vancouver Branch Executive meeting on April 23, 2008 because she wanted to be a delegate to the 2008 Regional Council meetings. She recalled that she was emotional because she had been suspended, and she apologized for not having a better memory of what transpired at the meeting. She admitted that it was possible that Ms. Kerr read a letter from the Institute’s Board of Directors that stated that Ms. Bremsak was suspended and could not be a delegate.

144 Ms. Bremsak admitted to sending an email entitled “SHAME ON YOU!” at 16:12 on April 24, 2008 (Exhibits R-1, Tab 18, page 116, R-2, Tab 40, page 371, and R-2, Tab 43, page 514-47). She also admitted that capitals in an email are the same as shouting at the recipient. The email was in response to Ms. Kerr’s email of 11:22 on April 24, 2008 (Exhibit R-1, Tab 18, page 117), advising Ms. Bremsak that “… this is a matter between you and the Board of Directors.” The email entitled “SHAME ON YOU!” was copied to Vancouver Branch Executive members, including Mr. Kendell, Mr. Peters, Mr. Jansen and Mr. Morin. Ms. Bremsak’s email reads as follows:

…

SHAME ON YOU!

I have never been so disappointed in an individual as in you last night and today. You haven’t had the courtesy or courage to face me or talk to me directly before, during or after stabbing me in the back. Shame on you!

You had legal training and yet you are incapable of understanding the meaning of the law. Shame on you for keeping me in the dark and hiding information so I could not defend myself.

When has the opinion of the Office of the President been considered a legal opinion? If that was true, the Vancouver Branch would have never had their 13 delegates for the past few Regional Councils and Bill Holmes would never have been in the BC/Yukon Regional Executive.

You have intentionally broken the law as the BoD has … and knowingly. What is the purpose of a union… if not to defend members’ rights! Shame on you!

This is no longer a matter just between me and the BoD. By taking the stand that you did last night, you made it into a matter for the entire Vancouver Branch Executive.

The PSLRA is written to protect union members from employers and employee organizations alike. Re-read sec 188 and decide if you want to be known as someone who intentionally broke this law. Following orders doesn’t alleviate your responsibility. You are still the one who broke the law. You have now force [sic] me to name you as another member of PIPSC who has broken the law. My representative will be dealing with you accordingly.

SHAME ON YOU!

May you get what you deserve.

…

Ms. Bremsak denied that she sent the email because she was disappointed that the Vancouver Branch Executive would not make a decision about her suspension from elected offices and the Policy Related to Members and Complaints to Outside Bodies. She said that she sent it because she was hurt that Ms. Kerr, whom she saw as a friend, would not talk to her as a friend. When Ms. Bremsak’s attention was directed to the information she provided to Mr. Mattern during the April 2009 harassment complaints investigation, she stated that she had forgotten and that the communication reported by Mr. Mattern was closer to accurate. She then admitted that it was accurate. Her response to Mr. Mattern’s question is recorded in his interview notes (Exhibit R-1, Tab 30, page 205) as follows:

…

Describe the purpose of your Email to Kathy Kerr dated April 24, 2008 at 1612. Kathy Kerr replied to my Email dated April 24, 2008 at 912 by an Email dated April 24, 2098 [sic] @1122. Kathy Kerr advised me that my Email had been forwarded to the PIPSC Executive Committee as the matter was between me and them.

The purpose of my Email @1612 was to advise Kathy Kerr how disappointed I was in her decision to follow the direction given by the Board of Directors, rather than making her own decision. I was disappointed that Kathy Kerr of all people given her legal training was unwilling or unable to come to the conclusion that the policy which caused my suspension was illegal.

…

[Emphasis added]

In my view, Ms. Bremsak was disingenuous in her original testimony on that point, in light of the documentary evidence. Ms. Bremsak later conceded that her April 24, 2008 (16:12) email entitled “SHAME ON YOU!” perhaps did not have the best of wording. She said that she would probably not send such an email again as it accomplished nothing.

145 Ms. Bremsak conceded that she was aware of the “work now, grieve later” principle from her training as a steward. She was aware that, even if the Vancouver Branch appointed her a delegate to the 2008 Regional Council meetings, it would have had no effect, given the national executive’s decision to suspend her from elected offices. She agreed that, if the Vancouver Branch Executive members ignored the suspension order, the Institute’s Board of Directors could have disciplined them. Ms. Bremsak disagreed with the suggestion of counsel for the respondents that simply naming the Institute as the defendant in her complaints would have accomplished her purposes. Ms. Bremsak conceded that she wanted the Vancouver Branch Executive to disobey the Board of Directors’ directions even before the PSLRB ruled on the first original complaint.

146 Ms. Bremsak admitted that she told Mr. Ansari in spring 2009 (Exhibit R-1, Tab 28, page 152), before the Vancouver Branch Executive determined the delegates to the 2009 Regional Council meeting, that she did not want to be forced to name him in a complaint with the PSLRB if the Vancouver Branch Executive did not appoint her as a delegate. She referred him to section 188 of the Act.

147 Ms. Bremsak said that she attended the joint meeting of the Vancouver Branch Executive and Vancouver – CRA Branch Executive at the Old Bavaria Haus Restaurant on June 3, 2009 with her representative. She denied planning what would be said with her representative. I do not believe her testimony as it lacks any aura of reality. Ms. Bremsak said that she did not pay attention during the conversation at issue. Counsel for the respondents played the recording of the incident. Ms. Bremsak admitted that other patrons could have heard what transpired. She admitted that, at the time of the meeting, no Federal Court order was in place, contrary to what her representative mentioned. Ms. Bremsak stated that she believed that the Institute was obliged to reinstate her following Veillette 2 (indefinite administrative suspension from elected office). She believes that she was bound by that decision. When she was pointed to the part of the decision that stated that the PSLRB had no authority to reinstate Mr. Veillette, she characterized it as an error in law. After some waffling, she finally agreed that she argued in Bremsak 2 (original complaints) that the Veillette 2 (indefinite administrative suspension from elected office) ruling on reinstatement was not binding on her. In my view, Ms. Bremsak knew full well as of June 3, 2009 that Veillette 2 (indefinite administrative suspension from elected office) did not order Mr. Veillette’s reinstatement. I do not accept her testimony that she honestly believed that the Institute was obliged to reinstate her immediately as a result of Veillette 2 (indefinite administrative suspension from elected office).

148 Ms. Bremsak conceded that, in her dealings with the Vancouver Branch Executive, she insisted on being treated as if she had not been suspended from elected offices. Ms. Bremsak conceded that the decision to suspend pursuant to the Policy Related to Members and Complaints to Outside Bodies had been made by the Institute’s Board of Directors and that it had not been made by the Vancouver Branch Executive. She conceded that the Vancouver Branch Executive could have challenged the Policy Related to Members and Complaints to Outside Bodies at the 2008 Regional Council meetings, but that it had no power to amend it.

149 Ms. Bremsak was referred to Mr. Mattern’s investigations. She confirmed that her representative canvassed Mr. Mattern’s credentials and that she took no issue with Mr. Mattern’s impartiality before the April 2009 harassment complaints investigation launched. Ms. Bremsak confirmed that Mr. Mattern confirmed the nature of the investigation process and that she reviewed the 2009 Dispute Resolution Policy and the Harassment Policy.

150 Ms. Bremsak agreed with the suggestions by counsel for the respondents that no travel time was required for the telephone interview to be conducted at her home on August 19, 2009. She is unsure why her representative insisted on reimbursement for travel time in an email of August 17, 2009 (Exhibit R-2, Tab 38, page 303). She further stated that, at any rate, she would have had to travel to work after the interview. Ms. Bremsak confirms that she was aware that the telephone interview with Mr. Mattern was scheduled to proceed on August 19, 2009, at 07:30, which was a date and time suggested by her representative. She was also aware that Mr. Mattern would call at that time and that it was her choice to participate but that Mr. Mattern would not reschedule the interview and would proceed to the report-writing stage without her information if she chose to not participate. All of this is set out in the text of an August 18, 2009 email (Exhibit R-2, Tab 38, page 308). Ms. Bremsak’s representative cancelled the appointment in his August 18, 2009 email (Exhibit R-2, Tab 38, page 313), as follows:

…

As I have stated in the above email, we will not participate until such time that PIPSC will properly reimburse Ms. Bremsak. This includes expenses such as travel time, meals and parking. Failure to do so is a violation of Ms. Bremsak’s right as a member.

If PIPSC is willing to properly reimburse Ms. Bremsak, we will be available after September 22, 2009.

If Mr. Mattern decides to move ahead with his investigation without resolving the issues, I will be taking legal action to protect Ms. Bremsak [sic] interest.

…

151 Ms. Bremsak conceded that she took no issue with the facts set out in Mr. Mattern’s investigation reports (Exhibits R-2, Tab 43, pages 464 to 514-52, R-1, Tab 14, pages 42 to 58, R-2, Tab 44, pages 515 to 530-26, and R-2, Tab 45, pages 531 to 534).

152 Ms. Bremsak conceded that she was provided with a copy of the 2009 Dispute Resolution Policy on several occasions. She was provided with it when she was given notice concerning the two harassment investigations. This document sets out an appeal to the Institute’s Board of Directors from decisions of the Institute’s Executive Committee. The suspension letter also sets out her right to appeal to the Board of Directors. Yet, she claimed to be unaware of the appeal procedure as the policy had changed many times. She was asked whether she filed an appeal with the Board of Directors. She said that her representative looked into it and that the Board of Directors could not suspend her under its current policies. I do not accept her explanation for failing to file an appeal as credible evidence under the Faryna criteria.

c. Re-examination

153 In re-examination, Ms. Bremsak’s representative asked many questions thatdid not arise out of Ms. Bremsak’s cross-examination and I did not allow them.

154 In re-examination, Ms. Bremsak’s representative attempted to address Ms. Bremsak’s failure to file an appeal. I note that at this point in time this was evidence that should have come from Ms. Bremsak’s representative as he authored emails dealing with this issue. He is the only one capable of speaking to the truth of the statements in his emails.

155 Ms. Bremsak was pointed to an email of October 30, 2009 that her representative sent to Mr. Grenville-Wood, inquiring about the appeal process (Exhibit G-1, Tab Q). I note that this was an email written by Ms. Bremsak’s representative entitled “Re Ms. Bremsak’s Appeal” and indicated that “Ms. Bremsak is prepared to appeal the Executive Committee’s decision dated October 20, 2009.” In this email Ms. Bremsak’s representative posed certain questions about the decision and the appeal process, pointing out that the 2007 Dispute Resolution Policy was posted on the Institute’s website. A responding email from Mr. Grenville-Wood on November 5, 2009 (Exhibit G-1, Tab Q), reiterated the 14-day appeal period set out in the suspension letter. Ms. Bremsak was then referred to the 2009 Dispute Resolution Policy, which she said was printed from the Institute’s website on November 5, 2009. This document provides for a 14-day appeal period of decisions of the Institute’s Executive Committee by written submission to the Institute’s Board of Directors.

3. Mr. Morin’s testimony

a. Examination-in-chief

156 Mr. Morin is a member of the Vancouver Branch Executive. He has held other positions with Institute components in B.C. He has been on the Institute’s Board of Directors and is currently retired.

157 Mr. Morin said that Ms. Kerr was disappointed by Ms. Bremsak’s election as the Vancouver Branch president in January 2008.

158 Mr. Morin attended the April 23, 2008 Vancouver Branch Executive meeting. He did not recall whether he received a copy of an April 18, 2008 email from Jacqueline Ralston, assistant to the Institute’s president and the secretary to the Institute’s Executive Committee, explaining as follows Ms. Bremsak’s status (Exhibits G-1, Tab J, and R-2, Tab 43, page 514-34):

…

Executive Committee discussed your queries yesterday. I hope that the following information will provide the guidance that you are seeking.

1. BC/Yukon Regional Council – She cannot be considered as a delegate to the Council.
2. Copies of Branch Sub-Group Executive Meetings – She is a regular member and should receive information in the same way as other regular members.
3. Attendance at Branch Sub-Group Executive Meetings – There is nothing to prevent regular members from attending these meetings. In this instance, the member is to cover their own expenses; the individual is there as an observer only. Should the person be disruptive, the Chair can ask the member to leave. Should the meeting go into ‘Closed Session’ you would then ask the individual to leave the room. FYI, the practice at the Board has been that a member would first seek permission from the Chair (Office of the President). We then inform the individual of the acceptance of the Chair, the possibility that they could be asked to leave the room if discussion goes into ‘Closed Session’, and we usually extend an invitation to remain for lunch with the Board.
4. Vice-President Presence – Executive Committee recommended that David Gray attend your upcoming meetings. Would you please contact him to provide details of dates and locations.
5. Other: Should you or any or your members be faced with a situation of intimidation / threat, would you please document incident immediately and send into the Office of the President.

…

[Sic throughout]

Mr. Morin stated that he was surprised by Ms. Bremsak’s suspension from elected offices. Mr. Morin assumed that Ms. Ralston’s email was a legal opinion, as Ms. Ralston copied it to Mr. Grenville-Wood, the Institute’s general counsel, who did not retract any of it. Mr. Morin said that documents were recovered at the end of the meeting. Ms. Bremsak never saw the paper copy of this email which was unusual.

159 Mr. Morin did not recall the Vancouver Branch Executive providing a reason for entering a closed session on April 23, 2008, other than that David Gray, an Institute vice-president, wanted to make a presentation. Mr. Gray attended for the purpose of advising that Ms. Bremsak could not be considered as a member entitled to hold a political position and that she could not be a delegate to the 2008 Regional Council meetings. Mr. Morin did not recall Mr. Gray setting out any analysis. Mr. Morin stated that he believed that the Policy Related to Members and Complaints to Outside Bodies was new after he was referred to it.

160 Mr. Morin indicated that there was no evidence of any improper behaviour by Ms. Bremsak at the April 23, 2008 meeting. She did not become irate or yell, but she was upset. At the end of the meeting, Ms. Bremsak did not make any statement other than that she was upset at the stance that the Vancouver Branch Executive was taking as to her being a delegate to the 2008 Regional Council meetings.

161 Mr. Morin was copied on Ms. Bremsak’s March 22, 2009 email requesting the Vancouver Branch Executive to appoint her a delegate to the 2009 Regional Council meeting (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30). He did not find it offensive and considered it a statement of fact. He felt that it was a simple request to be a delegate to the Regional Council.

162 Mr. Morin testified that, to become a delegate to an official event, one generally has to be on the executive, which is where the first draw is made for delegates. He said that members can request to be delegates. If more names are suggested who wish to attend than delegates to be appointed, the names are ranked.

163 Mr. Morin was present on June 3, 2009, when Ms. Bremsak and her representative attended the Old Bavaria Haus Restaurant 15 minutes before the start of a meeting and made an announcement to those waiting for the meeting to begin. He said that the purpose of the announcement was to inform those waiting that the Policy Related to Members and Complaints to Outside Bodies used to remove Ms. Bremsak was invalid, that it should not have been applied to her and that she should be reinstated in her position. In response to a leading question about whether he found Ms. Bremsak’s representative was aggressive, ranting or raving, standing on the table or yelling at anyone at the June 3, 2009 meeting, Mr. Morin replied that Ms. Bremsak’s representative tried to get the meeting participants’ attention and that he read something but that they did not give him much time. Mr. Morin described Ms. Bremsak’s representative as acting in a matter-of-fact manner and as trying to make a presentation. The meeting participants would not listen. Ms. Bremsak stayed after her representative left. Mr. Morin said that Ms. Bremsak did not take part in her representative’s announcement.

164 Mr. Morin emailed Mr. Grenville-Wood on August 28, 2009 (Exhibit G-1, Tab A) a rather cryptic note about whether they were to comply with Veillette 2 (indefinite administrative suspension from elected office) immediately. He said that Mr. Grenville-Wood responded and that Mr. Morin was not sure what to do after receiving the response to his August 28, 2009 email.

165 Mr. Morin’s opinion was that Ms. Bremsak was suspended from elected offices under the Policy Related to Members and Complaints to Outside Bodies because the Institute did not want to give her an opportunity to speak at the 2008 Regional Council meetings.

166 Mr. Morin’s opinion was that, if the Institute’s Board of Directors passed a policy, it could not be implemented until it went through the Institute’s annual general meeting. I note that Mr. Morin is not a lawyer.

167 Mr. Morin was referred to By-Laws 13.6 (Exhibit R-1, Tab 16, page 85) and 15.2.1 (Exhibit R-1, Tab 16, page 87) and stated that delegates represent constituent members at an Institute’s annual general meeting or a Regional Council. By-Laws 13.6 to 13.6.2 and 15.2.1 read as follows:

BY-LAW 13 GENERAL MEETINGS OF THE INSTITUTE

…

13.6 Delegates Delegates shall be apportioned according to the following:

13.6.1 Board of Directors Every member of the Board shall be a delegate to an Annual or Special General Meeting.

13.6.2 Groups Each Group Executive shall be entitled to the greater of:

1. one (1) delegate for each two hundred (200) of the Group's members, rounded to the nearest two hundred (200), based on its national membership as at December 31, immediately prior to the notice of the meeting, or
2. one (1) delegate.

…

BY-LAW 15 BOARD OF DIRECTORS

…

15.2 Authority

15.2.1 The Board is a continuing entity which shall exercise the authority of, and act on behalf of, the Institute on all matters, subject to these By-Laws and to policy decisions of General Meetings. Decisions of the Board remain in force until rescinded.

[Emphasis in the original]

Mr. Morin noted that By-Laws 13.6 to 13.6.2 do not set out the qualifications for becoming a delegate.

168 Mr. Morin was asked whether any provision of the By-Law allows the Institute’s Board of Directors to strip a member of his or her rights of membership. Mr. Morin said that there is no such provision and that only discipline is available.

169 Mr. Morin said that the Institute’s Board of Directors only had the right to prevent Ms. Bremsak from being a delegate under By-Law 7.1.2 (Exhibit R-1, Tab 16, page 77) as long as two-thirds of the Board of Directors voted in favour. I note that By-Law 7.1.2 speaks only to the removal of the right to vote on tentative agreements from members who did not participate in job actions. By-Laws 7.1.2 reads as follows:

BY-LAW 7 RIGHTS OF MEMBERSHIP

…

7.1.2 Notwithstanding By-Law 24 Discipline, and subject to applicable legislation, a Regular member may, upon recommendation of the appropriate Group Executive, have his right to vote on a tentative agreement removed by the Board of Directors for non-participation in legal and authorized job-related actions. Removal of such right shall require a two-thirds (2/3) vote of the Board of Directors. Between regular meetings of the Board, the Executive Committee shall exercise the power of the Board with respect to the removal of a Regular member's right to vote on a tentative agreement for non-participation in legal and authorized job-related actions. Removal of such right shall require a unanimous vote of the Executive Committee.

…

[Emphasis in the original]

170 Mr. Morin stated, in response to a leading question, that as far as he knew, Ms. Bremsak was a member in good standing of the Institute and that her rights as a member had been violated.

171 Mr. Morin received Ms. Bremsak’s April 24, 2008 (16:12) email entitled “SHAME ON YOU!” (Exhibits R-1, Tab 18, page 116, R-2, Tab 40, page 371, and R-2, Tab 43, page 514-47). His impression was that she was just listing her disappointment at the Vancouver Branch Executive’s stance of excluding her from being a delegate to the 2008 Regional Council meetings.

b. Cross-examination

172 In cross-examination, Mr. Morin stated that he was aware that Ms. Ralston was a secretary or executive secretary with the Institute. He confirmed that nobody at the April 23, 2012 meeting referred to Ms. Ralston’s April 18, 2008 email (Exhibits G-1, Tab J, and R-2, Tab 43, page 514-34) as a legal opinion. Mr. Morin stated that it is possible that Ms. Kerr simply read Ms. Ralston’s April 18, 2008 email out loud at the meeting and that she did not distribute the copies at the meeting. Mr. Morin stated that, when he stated in his examination-in-chief that documents were recovered, he was only speculating as to what happened over a period of a year-and-a-half.

173 Mr. Morin did not respond to Mr. Jansen’s May 21, 2008 email (Exhibit G-1, Tab 25), which set out his understanding of what occurred at the April 23, 2008 closed session.

174 Mr. Morin believed that Mr. Gray attended the April 23, 2008 meeting to monitor Ms. Bremsak’s behaviour as a threat loomed that she could have been impolite. Mr. Morin knew that Mr. Gray was a member of the Institute’s Board of Directors and said that Mr. Gray “laid down the law.” Mr. Morin confirmed that, once Mr. Gray indicated that Ms. Bremsak could not be a delegate to the 2008 Regional Council meetings, it was then no longer open to the Vancouver Branch Executive to appoint her as one. Mr. Morin stated that there were 12 delegates and that 7 to 9 of the delegate posts were usually given to members of the Vancouver Branch Executive, which left 3 to 5 spots to fill. Mr. Morin said later that it was up in the air or that he did not really know if the Vancouver Branch Executive could have selected Ms. Bremsak as a delegate to the 2008 Regional Council meetings while she was suspended from elected offices. He said that there was no authority to deviate from the decision of the Institute’s Board of Directors.

175 Mr. Morin agreed that the Vancouver Branch Executive had no authority to reinstate Ms. Bremsak to its presidency while she was under the suspension from elected offices imposed by the Institute’s Board of Directors. He said that, even had the Vancouver Branch Executive held a vote at the April 23, 2008 meeting, it was not very likely that Ms. Bremsak would have been appointed as a delegate to the 2008 Regional Council meetings, as three to five members of the Vancouver Branch Executive would not have voted against the Board of Directors’ decision.

176 Mr. Morin said that he was not offended by Ms. Bremsak’s April 24, 2008 (16:12) email entitled “SHAME ON YOU!” (Exhibits R-1, Tab 18, page 116, R-2, Tab 40, page 371, and R-2, Tab 43, page 514-47) but that he would not be surprised if Ms. Kerr had been offended.

177 Mr. Morin said that, when he testified about the Institute keeping Ms. Bremsak from speaking out about injustices done to her, he was referring to the 2007 Vancouver Branch Executive election. He also confirmed that he knew that a panel of the PSLRB had ruled on this matter in Bremsak 2 (original complaints) and determined that Ms. Bremsak was at fault for her comments.

178 As for the June 3, 2009 meeting at the Old Bavaria Haus Restaurant, it was clear to Mr. Morin that the presence of Ms. Bremsak’s representative was not welcome. Mr. Morin confirmed that Ms. Kerr might have asked Ms. Bremsak’s representative to leave. Mr. Morin confirmed that other patrons would have been able to hear what happened, had they had reasonable hearing.

179 Mr. Morin confirmed that he is not a lawyer and that he has no legal training. He said that he was on the By-Law Committee. He was challenged on his testimony that new policies were not effective until they were passed at an Institute’s annual general meeting. He said that policies emerge constantly and that the effectiveness of new policies is a matter of judgement. When he was asked to point out where the By-Laws state that the Institute’s Board of Directors cannot create and apply a policy, he was unable to identify that location and claimed that “it was just good governance.” Mr. Morin provided no useful testimony on that point other than to state that the authority of the Institute’s Board of Directors was too all-encompassing when it was pointed out to him by the respondents’ counsel that By-Law 15.2.5.1 states as follows:

BY-LAW 15 BOARD OF DIRECTORS

…

15.2 Authority

…

15.2.5 Regulations

15.2.5.1 The Board may make such Regulations not inconsistent with the By-Laws or Letters Patent of Incorporation of the Institute as it deems necessary or convenient for the operation of the Institute.

[Emphasis in the original]

c. Re-examination

180 In re-examination, Mr. Morin testified that most Institute members are not lawyers.

4. Mr. Gillis’ testimony

181 Mr. Gillis impressed me as a very straightforward witness who was knowledgeable about the Institute’s policies. He was responsive to the questions, even in vigorous cross-examination, and, in my view, gave extremely credible and reliable evidence.

a. Examination-in-chief

182 Mr. Gillis was formerly the Institute’s executive secretary and is now its chief operating officer. He has been an employee of the Institute in the national office for about 20 years. He is very familiar with the Institute’s operations, given his lengthy experience.

183 Mr. Gillis testified that the Institute’s Board of Directors suspended Ms. Bremsak from her elected and appointed duties on April 9, 2008, pursuant to the Policy Related to Members and Complaints to Outside Bodies in place at that time (Exhibit R-1, Tab 19, page 126). The Vancouver Branch Executive played no role in that decision. Mr. Gillis explained that the Vancouver Branch was a subordinate body of the Institute and that it had to take direction from the Institute’s Board of Directors. The Vancouver Branch Executive had no authority to reverse Ms. Bremsak’s suspension from elected offices or to treat her as if she were not suspended. He testified that the Vancouver Branch Executive had no authority to appoint Ms. Bremsak as a delegate to the 2008 Regional Council meetings after the Board of Directors suspended her.

184 Mr. Gillis testified that the Institute has the Harassment Policy and that the Institute’s Board of Directors approved the 2009 Dispute Resolution Policy at its January 17, 2009 board meeting as set out in the minutes (R-3, Tab 71, page 674). The 2009 Dispute Resolution Policy suggests that the Institute president can delegate a harassment investigation. Mr. Gillis testified that the president delegated to him and to Mr. Grenville-Wood the responsibility to investigate the April 2009 harassment complaints and the June 2009 harassment complaint. Mr. Gillis said that he and Mr. Grenville-Wood felt that the most appropriate course was to retain Mr. Mattern and North Shore Investigations, an independent consultant, to investigate the April 2009 harassment complaints and the June 2009 harassment complaint. Mr. Mattern and North Shore Investigations were retained, under contract, to investigate the April 2009 harassment complaints and the June 2009 harassment complaint but with no power to recommend punishment.

185 Before the April 2009 harassment complaints and the June 2009 harassment complaint were investigated, the Institute was not in the practice of paying the salary or expenses of a member participating in a harassment investigation. Mr. Gillis testified that Ms. Bremsak’s travel expenses were not to be reimbursed as Mr. Mattern was to interview her by telephone on August 19, 2009 at her home. She would have incurred any work travel later that day in any event. Mr. Gillis noted that none of the other participants in the harassment investigations claimed travel expenses. He noted that, in the past, the Institute had noted that Ms. Bremsak spent a lot of time preparing, and it did not reimburse salary for preparation time. Mr. Gillis’ view was that Ms. Bremsak was attempting to frustrate the June 2009 harassment complaint investigation process by not participating in it. He wrote her an email dated August 28, 2009 (Exhibit R-2, Tab 38, page 314) as he felt that a person who is the object of harassment complaints cannot be allowed to frustrate the investigation process by refusing to comment on serious allegations. He wrote the following:

…

We advised you on June 15, 2009 that the Institute was prepared to reimburse you for lost salary, if any, for the time spent with the investigator assigned to inquire into complaints of harassment made against you. We note that no claim for that time spent has been made.

In an email dated August 18, we provided the same commitment for reimbursement of lost salary for time spent with the investigator in relation to a further set of complaints against you.

It now appears that you are refusing to participate in this process, and your representative Mr. Lee has suggested that you are refusing because the Institute will not reimburse salary for time spent in interviews. As this is not the case, I would urge you to reconsider this position as the investigator will have no choice but to finalize his report without your input.

I will be asking Mr. Mattern to make a final attempt to secure an interview with you in the immediate future, with the expectation that such an interview be completed by no later than September 15.

…

186 Mr. Mattern completed his investigations without meeting further with Ms. Bremsak. He provided his investigation reports (Exhibits R-2, Tab 43, pages 464 to 514-52, R-1, Tab 14, pages 42 to 58, R-2, Tab 44, pages 515 to 530-26, and R-2, Tab 45, pages 531 to 534) to Mr. Gillis, along with any comments that he received. Mr. Gillis placed the materials before the Institute’s Executive Committee for discussion. His role was to bring the information to the Executive Committee and to frame the questions for it to consider when it made its decision. He advised the Executive Committee that it should consider the April 2009 harassment complaints and the June 2009 harassment complaint separately. He suggested that the Executive Committee ought not to consider other matters about Ms. Bremsak and that it should focus only on the April 2009 harassment complaints and the June 2009 harassment complaint.

187 Mr. Gillis reported that the Institute’s Executive Committee unanimously agreed with Mr. Mattern’s findings and that it determined that 12 of the 15 allegations in the April 2009 harassment complaints were proved. He said that the Executive Committee decided on a five-year suspension from membership in the Institute. They looked at the range of possible sanctions, from none to permanent expulsion from membership. The Executive Committee viewed the allegations seriously but determined that permanent expulsion was too serious. They considered that for the most part Ms. Bremsak did not deny her actions; she just didn’t consider them harassment. The Executive Committee was deeply concerned that she did not understand her actions, that she demonstrated no remorse and that she would continue to behave exactly the same unless a very serious message was sent to her. The Executive Committee determined that a five-year suspension from membership was the most appropriate given all the circumstances. Mr. Gillis testified that a group of volunteers had indicated that it would not be able to continue its work with the Institute if such behaviour continued. There was a deep level of concern that the Executive Committee had to make certain that harassment did not occur within the Institute. Mr. Gillis said that the Institute’s Executive Committee also considered the June 2009 harassment complaint. It decided that it would be unwise to conclude that Ms. Bremsak was not responsible for her representative’s actions as she had been present at the June 3, 2009 meeting at the Old Bavaria Haus Restaurant. The Executive Committee decided to not increase the five-year suspension from membership.

188 Mr. Gillis testified that the April 2009 harassment complaints and the June 2009 harassment complaint fit squarely into the definition of harassment, as Ms. Bremsak and her representative tried to intimidate Institute members into refusing to implement the decision of the Institute’s Board of Directors to suspend Ms. Bremsak from elected offices and as it was degrading for an individual to be in that position. He considered that the incident at the June 3, 2009 meeting at the Old Bavaria Haus Restaurant was a serious case of intimidation, threatening and bullying that occurred in public. It was embarrassing and degrading for those present in that public place. He thought it ridiculous that the definition of harassment in the Harassment Policy would not include bullying and threatening behaviour. Mr. Gillis testified that harassment complaints are dealt with under the Harassment Policy and the dispute resolution policy that applied when they were filed. That has been a long-standing Institute practice. Mr. Gillis testified that the Institute has not made any changes to the harassment definition.

189 Mr. Gillis stated that Ms. Bremsak’s allegation that the Institute had “trumped up fake allegations of harassment”, as alleged in the five-year suspension complaint, was completely false. He said that the Institute’s Board of Directors had no role in filing the April 2009 harassment complaints or the June 2009 harassment complaint; it simply investigated and dealt with them according to policy.

190 Mr. Gillis testified that Ms. Bremsak was advised of a right to appeal in the suspension letter on October 20, 2009 and that she did not exercise that right.

191 Mr. Gillis testified that, under the By-Laws, there is no requirement for the Institute’s annual general meeting to approve policies made by the Institute’s Board of Directors, which has the power to make regulations not inconsistent with the By-Laws. However, the Institute’s annual general meeting may repeal or suspend by-laws.

192 Mr. Gillis testified that he did not influence Mr. Mattern in his harassment complaint investigations; Mr. Gillis’ role was to manage the logistics. Mr. Gillis was questioned about an exchange of emails on August 27, 2009, which refer to arranging a telephone call (Exhibit G-1, Tab G).

b. Cross-examination

193 In cross-examination, Mr. Gillis said that Ms. Bremsak was suspended from elected offices because, rather than submit to the will of the majority on the simple issue of an apology, she took the matter to the PSLRB by filing the first original complaint. The Institute considered that action a conflict of interest, and she was suspended from elected offices under the Policy Related to Members and Complaints to Outside Bodies. Ms. Bremsak attempted to pursue that issue at length at the hearing and the Institute objected, as that issue had been dealt with at length in Bremsak 2 (original complaints). I upheld the objection. Mr. Gillis said that the Institute’s Board of Directors did not use the Policy Related to Members and Complaints to Outside Bodies to silence Ms. Bremsak; it considered that there was an issue of her duty of loyalty. Mr. Gillis said that Ms. Bremsak continued to place her interests over those of the Institute by interacting with Institute members very negatively. He said that Ms. Bremsak had a history of not conducting herself appropriately and of threatening, bullying and making horrible allegations against a former Institute president and that she made allegations against every member of the Board of Directors. Mr. Gillis pointed out that those issues were dealt with in Bremsak 2 (original complaints). At one point in the hearing, I warned Ms. Bremsak’s representative that, if he persisted in asking questions about matters that were dealt with in Bremsak 2 (original complaints) and that were clearly collateral to the issues before me, he would be stuck with the answers of the witness and would not be permitted to call contradictory proof.

194 Mr. Gillis said that Ms. Bremsak’s suspension from elected offices was decided at the national level and that no subordinate body or volunteer could deviate from a decision of the Institute’s Board of Directors. To that extent, the Vancouver Branch Executive acted in accordance with the Institute’s decision. Mr. Gillis confirmed that, as a subordinate body, the Vancouver Branch Executive did not have the authority to refuse to obey the decision of the Board of Directors to suspend Ms. Bremsak from elected offices. Mr. Gillis stated that Ms. Ralston was the assistant to the president and the secretary to the Institute’s Executive Committee and that she was its spokesperson. Mr. Gillis did not accept the suggestions put to him by Ms. Bremsak that the Vancouver Branch Executive enforced the decision of the Institute’s Board of Directors to suspend Ms. Bremsak from elected offices. He said that the Board of Directors is responsible for enforcing its decisions.

195 Mr. Gillis did not agree with Ms. Bremsak’s suggestion that the Policy Related to Members and Complaints to Outside Bodies stripped her of the right under By-Law 7 to be a delegate to the 2008 Regional Council meetings. By-Law 7 reads as follows:

BY-LAW 7 RIGHTS OF MEMBERSHIP

Subject to being members in good standing:

7.1 Regular and Retired Members Only Regular and Retired members have the right to be candidates for office, to vote for officers, to otherwise participate in the affairs of the Institute, and, subject to By-Law 7.1.1, the affairs of the constituent bodies of the Institute. Only Regular and Retired members shall be eligible to attend General Meetings of the Institute. Only Regular members shall be eligible for appointment as Stewards.

7.1.1 Groups and Sub-Groups may, in accordance with their Constitutions, determine the level of participation of Retired members in their affairs. AGM2006 (e)

7.1.2 Notwithstanding By-Law 24 Discipline, and subject to applicable legislation, a Regular member may, upon recommendation of the appropriate Group Executive, have his right to vote on a tentative agreement removed by the Board of Directors for non-participation in legal and authorized job-related actions. Removal of such right shall require a two-thirds (2/3) vote of the Board of Directors. Between regular meetings of the Board, the Executive Committee shall exercise the power of the Board with respect to the removal of a Regular member's right to vote on a tentative agreement for non-participation in legal and authorized job-related actions. Removal of such right shall require a unanimous vote of the Executive Committee.

7.1.3 Retired members who ceased to be Regular members during the retroactive period of a collective agreement, may be granted the right to vote on that tentative agreement that affects them, unless otherwise precluded by the applicable legislation.

7.1.4 Regular and Retired members have a right to be fully informed of all actions and subjects of Institute concern and to be given full disclosure as expeditiously as possible of such information by news release or as a reply to the written request of a member.

7.1.4.1 Notwithstanding By-Law 24, personal information about identified individuals and proceedings of Closed Session meetings convened by the Board, the Executive Committee or by any constituent body or its Executive shall not be so disclosed.

7.1.5 Members not in good standing shall not be eligible to hold Institute office at any level, to vote in any and all Institute elections, to ratify Group tentative agreements, or to participate in Institute training.

7.2 Associate members Associate members shall be entitled to representational services of the Institute with respect to specific complaints, including grievances and appeals. Associate members shall not be eligible to be candidates for office, to vote for officers or to otherwise participate in the affairs of the Institute or those of its constituent bodies. They shall be entitled to receive general Institute publications and be eligible to participate in various benefit plans available to Institute members.

7.3 Affiliate Members Affiliate members shall not be eligible to be candidates for office, to vote for officers or to otherwise participate in the affairs of the Institute or those of its constituent bodies, nor to receive representational services. They shall be entitled to receive general Institute publications and be eligible to participate in various benefit plans available to Institute members.

7.4 Evaluation Report by President At least four (4) weeks before the Annual General Meeting, all members shall be provided with a written evaluation by the President of the effectiveness of the Institute in meeting the objectives in By-Law 2.

[Emphasis in the original]

Mr. Gillis said that any of the 60 000 Institute members can attend an Institute’s annual general meeting but that the voting rights at Institute’s annual general meetings are exercised by delegates. No member has a general right to be a delegate, as delegates are selected by constituent bodies. By-Law 7 does not set out who is eligible to be a delegate or how delegates are chosen.

196 Ms. Bremsak’s representative suggested that, given that Ms. Bremsak was unable to be a delegate to the 2008 Regional Council meetings and to the Institute’s 2008 annual general meeting and thus to vote against the Policy Related to Members and Complaints to Outside Bodies, the question arose of how democracy was served. Mr. Gillis indicated that voting at the meeting is done by representatives and that the Institute could not operate as an entity if each of its 60 000 members could monopolize a meeting with his or her own particular issue.

197 Ms. Bremsak took issue with the amendments of the 2009 Dispute Resolution Policy that she believed reduced members’ rights. Mr. Gillis confirmed that, if a contradiction arose between the policies and the By-Laws, the latter would prevail. Mr. Gillis said that the Institute’s Board of Directors does not have the authority to make policies that contravene the By-Laws or that ignore directions given at an Institute’s annual general meeting. However, he added that the Board of Directors does not require the approval of the Institute’s annual general meeting before implementing a policy. Mr. Gillis did not agree that By-Law 15.2.1 supported Ms. Bremsak’s contention that the 2009 Dispute Resolution Policy needed to be approved by the Institute’s annual general meeting. By-Law 15.2.1 reads as follows:

BY-LAW 15 BOARD OF DIRECTORS

…

15.2 Authority

15.2.1 The Board is a continuing entity which shall exercise the authority of, and act on behalf of, the Institute on all matters, subject to these By-Laws and to policy decisions of General Meetings. Decisions of the Board remain in force until rescinded.

[Emphasis in the original]

198 Mr. Gillis said that, in his decades with the Institute and given its past practice, policies developed by the Institute’s Board of Directors were not brought to the Institute’s annual general meeting for approval. Mr. Gillis stated, however, that the 2009 Dispute Resolution Policy was brought to the Institute’s annual general meeting in November 2009 as an evolving approach that the Board of Directors was taking towards discipline matters and in light of a growing incivility among members. Mr. Gillis said that the former policy had not been reviewed in many years and was not focused on informally resolving problems. Mr. Gillis noted that the 2009 Dispute Resolution Policy sparked considerable debate and that it was controversial. Mr. Gillis confirmed that the 2009 Dispute Resolution Policy was approved at the January 17, 2009 meeting of the Board of Directors. I note that the minutes of the meeting on this issue (Exhibit R-3, Tab 71, page 674), which record that the amended policy was approved, read in part as follows:

…

The Dispute Resolution Policy was approved by the Board in August of 2008. Following the approval of amended By-Law 24 by the 2008 AGM, the policy was revised and is being brought back to the Board for approval. If approved, this amended policy would become effective immediately.

…

The policy represents the final piece of the new approach to dealing with discipline matters. The amended policy will now work in conjunction with amended By-Law 24, i.e. that in matters of discipline, the Executive Committee will be the primary body to review cases and make determinations on discipline, leaving the Board as the body that will become an appeal mechanism. Appeals will be restricted to whether or not the Executive Committee acted within its mandate.

It was noted that the Dispute Resolution Policy is already in place and had been since August 2008. It is being amended to provide an opportunity for an appeal mechanism to the Board. It is not a new policy but simply and [sic] amendment following the AGM.

…

199 Mr. Gillis was questioned about paragraph 13 of the “Response to the Complaint in Board File 561-34-405” (Exhibit R-1, Tab 15, page 61), which reads as follows: “[a]t all relevant times, the Respondents were acting in accordance with the directions and instructions of the Institute’s Board of Directors.” Mr. Gillis denied any suggestions of a conspiracy and said that the Institute’s Board of Directors and the Institute’s counsel had nothing to do with the filing of the April 2009 harassment complaints and the June 2009 harassment complaint. Mr. Gillis admitted that the Board of Directors gave directions to members of the Vancouver Branch Executive — Institute volunteers — because they were asked about what would happen if Ms. Bremsak became disruptive.

200 Ms. Bremsak sought to cross-examine Mr. Gillis on a number of other issues that were clearly also the subjects of rulings made in Bremsak 2 (original complaints), including the suggested lack of power of the Institute’s Board of Directors to deal informally with complaints. Mr. Gillis stated that the April 2009 harassment complaints and the June 2009 harassment complaint were dealt with formally as they were considered serious enough to merit investigations.

201 Mr. Gillis confirmed that the participation of a member of the Institute in a harassment investigation is not considered Institute business; therefore, the Institute has no obligation to reimburse a member for participating in an investigation. Mr. Gillis considered the Institute’s policies on member participation expenses (Exhibit G-6) and travel (Exhibit G-7). His view was that participating in a harassment investigation was not considered Institute business for which a member was entitled to expense reimbursement. Mr. Gillis did not agree that any meetings with Mr. Mattern had to be cancelled because of the Institute’s actions. Mr. Gillis stated that, apparently, Ms. Bremsak and her representative decided that she would not attend the June 2009 harassment complaint investigation meetings. Mr. Gillis said that it was up to Ms. Bremsak to apply to her employer for time off without pay. Her employer would simply code the absence as being for bargaining agent business. Mr. Gillis said that employers generally do not question whether the Institute business is needed and that that would be a dangerous course for a department to take.

202 Mr. Gillis recalled that the father of Ms. Bremsak’s representative passed away at some point during the harassment investigations, but he had no details.

203 Mr. Gillis was cross-examined about why Mr. Mattern did not consider the parties’ litigation history before the PSLRB or earlier decisions, including Veillette 2 (indefinite administrative suspension from elected office) and Bremsak 2 (original complaints). Mr. Gillis stated that it was important for Mr. Mattern to focus on the relevant consideration, which was whether harassment had occurred, and that his findings about the Policy Related to Members and Complaints to Outside Bodies would have been irrelevant.

204 Mr. Gillis agreed with Mr. Mattern’s findings. He said that the decision of the Institute’s Executive Committee to suspend Ms. Bremsak from membership for five years was not against the Act or Bremsak 2 (original complaints) and that the Institute took careful note of Bremsak 2 (original complaints). Ms. Bremsak has not been reinstated because she harassed Institute members.

205 Mr. Gillis confirmed that members of the Institute’s Executive Committee are also members of the Institute’s Board of Directors. Those members do not step aside when an appeal of a decision of the Executive Committee is made to the Board of Directors under the 2009 Dispute Resolution Policy, as it is not a full appeal but a review as to whether the Executive Committee acted within its mandate. The Executive Committee members are present and inform the Board of Directors about the process that the Committee followed, the actions that it took and the decisions that it made. Mr. Gillis did not agree that natural justice required an opportunity for Ms. Bremsak to cross-examine the decision makers or those who decided to suspend her from membership in the Institute for five years. Mr. Gillis did not agree that the Board of Directors was to function like a court and to provide examination-in-chief, cross-examination and re-examination of witnesses during a review. Mr. Gillis said that, even if the Executive Committee chose to vote as a bloc, it could be outvoted by the balance of the Board of Directors.

206 Mr. Gillis canvassed at length Veillette 2 (indefinite administrative suspension from elected office) and the Institute’s decision to not reinstate Ms. Bremsak into her elected offices. Many of the questions put to Mr. Gillis were inappropriately framed and suggested that the Policy Related to Members and Complaints to Outside Bodies was illegal. Mr. Gillis did not agree with Ms. Bremsak’s suggestions that the Policy Related to Members and Complaints to Outside Bodies was illegal or that she should have been reinstated following Veillette 2 (indefinite administrative suspension from elected office). Mr. Gillis referred to section 188 of the Act and to the need to consider the fact that this was a new legislative provision. Mr. Gillis stated that it would be unreasonable to incur legal costs any time any of the 350 constituent bodies of the Institute took issue with a national policy. Mr. Gillis stated that the Policy Related to Members and Complaints to Outside Bodies was discussed at the Institute’s Board of Directors and at the Institute’s annual general meeting before it was implemented.

5. Ms. Roy’s testimony

207 Ms. Roy impressed me as a very straightforward, witness who was knowledgeable about the Institute’s policies. She was responsive to the questions, even in vigorous cross-examination, and, in my view, gave extremely credible and reliable evidence.

208 Ms. Roy is now the Institute’s general counsel. She stated that she has been a co-respondent named in complaints under section 188 of the Act filed by Ms. Bremsak. Ms. Roy confirmed that the Vancouver Branch Executive had no part in the Institute’s decision to suspend Ms. Bremsak from elected offices under the Policy Related to Members and Complaints to Outside Bodies and that the Vancouver Branch Executive had no authority to rescind the suspension or to overrule the national body.

209 Ms. Roy, along with Mr. Grenville-Wood, was one of the recipients of an email of June 4, 2009, in which Ms. Bremsak’s representative demanded her reinstatement to her elected offices (Exhibit R-1, Tab 3, page 16). That email confirms steps that Ms. Bremsak’s representative took to bring Veillette 2 (indefinite administrative suspension from elected office) to the Institute’s attention. The email reads in part as follows:

…

Please advise your clients that Ms. Bremsak is to be re-instated to all her positions since the Policy Relating to Members and Complaints to Outside Bodies was ruled to be against the PSLRA and as such this current policy is null and void. Since a stay of execution had not been granted at this time, Ms. Bremsak must be re-instated to all her position effective immediately according to the law. If I do not hear from you regarding confirmation of the re-instatement of Ms. Bremsak by June 5^th at 9:00 am PST, I will be advising my client to file a new complaint with the PSLRB regarding all these incidents and the refusal of your clients to obey the PSLRB order.

…

[Sic throughout]

[Emphasis added]

In response, Mr. Grenville-Wood sent a letter on June 8, 2009 (Exhibit R-3, Tab 58, pages 600 and 601). In it, he pointed out the contradictory rulings of panels of the PSLRB in Veillette 1 (2-year disciplinary suspension from elected office) and Veillette 2 (indefinite administrative suspension from elected office), that Veillette 2 (indefinite administrative suspension from elected office) required amending the Policy Related to Members and Complaints to Outside Bodies and did not determine that the Policy Related to Members and Complaints to Outside Bodies was null and void, that the Institute’s Board of Directors had the authority to amend policies between Institute’s annual general meetings, and that it had not yet met to review the Policy Related to Members and Complaints to Outside Bodies. Mr. Grenville-Wood further pointed out the unacceptable conduct of Ms. Bremsak and her representative on June 3, 2009 at the Old Bavaria Haus Restaurant and stated the following:

…

It is deplorable to note that the intimidation tactics and threats made against all members duly in attendance at the meeting led to the planned business of those branches being abandoned on this occasion.

We are hereby advising you that such conduct is unacceptable and will not be tolerated by the Institute. Any further attempts to intimidate other members of the Institute or otherwise disrupt the business of the Institute will result in the Institute seeking lawful means to have you or your client ejected from the premises of any function organized by the Institute.

…

Mr. Grenville-Wood also prepared a briefing note to the Board of Directors (Exhibit R-3, Tab 59, pages 602 and 603), outlining that Ms. Bremsak was not reinstated as a result of Veillette 1 (2-year disciplinary suspension from elected office) and Veillette 2 (indefinite administrative suspension from elected office) and that the Board of Directors should discuss the Policy Related to Members and Complaints to Outside Bodies and determine the proper course of action as a result of Veillette 2 (indefinite administrative suspension from elected office). The briefing note also referred to the disruptive behaviour of Ms. Bremsak and her representative on June 3, 2009 at the Old Bavaria Haus Restaurant and noted that, if another Institute meeting or its business were disrupted, the disruptive persons should first be asked to leave. If they refuse, hotel or conference security staff should be called to escort them off the premises.

210 Ms. Roy’s legal opinion both then and now remains that Ms. Bremsak was not automatically reinstated as a result of Veillette 2 (indefinite administrative suspension from elected office)and that the Institute was in a difficult position, given the two conflicting decisions on the power of a panel of the PSLRB to order reinstatement to bargaining agent offices. The Institute sought to judicially review both Veillette 1 (2-year disciplinary suspension from elected office) and Veillette 2 (indefinite administrative suspension from elected office). Ms. Roy said that Ms. Bremsak also had her own issues in progress before the PSLRB.

211 Ms. Roy testified that the 2007 Dispute Resolution Policy, which required a decision of the Institute’s Board of Directors, was no longer applicable at any of the relevant times. Ms. Roy testified that the 2007 Dispute Resolution Policy appears to have been inadvertently left on the Institute’s website, which she discovered on November 3, 2009. She worked with the Institute’s information section to have the 2009 Dispute Resolution Policy posted, which is confirmed in her email of November 3, 2009 (Exhibit R-3, Tab 69, page 672). The response email indicates that “there was a mix up.” The 2009 Dispute Resolution Policy applied at all relevant times. I note that it was published on the Institute website by November 5, 2009 (Exhibit G-1, Tab Q). The Institute’s website displays the following disclaimer (Exhibit R-3, Tab 70, page 673):

This Web site [sic] is intended to provide information to PIPSC members. While every effort is made to provide accurate and current information, no responsibility is assumed for errors or omissions. Documents referred to are intended for information purposes only and should not be used as an authority.

212 Ms. Bremsak’s representative referred to correspondence that he had sent to Mr. Grenville-Wood about appealing the decision of the Institute’s Executive Committee to suspend Ms. Bremsak from membership in the Institute for five years. Ms. Bremsak’s representative did not testify, and Mr. Grenville-Wood passed away before this hearing. Ms. Bremsak’s representative raised issues about the appeal, the appeal process and an alleged conflict of interest among the Institute’s Board of Directors. The Executive Committee informed him about the appeal process. Ms. Bremsak filed no appeal. It is clear that, by at least November 5, 2009, Ms. Bremsak’s representative possessed a copy of the applicable 2009 Dispute Resolution Policy obtained from the Institute website (Exhibit G-1, Tab Q). In none of the correspondence before me did the Institute inform Ms. Bremsak that she was out of time to appeal the decision of the Executive Committee to the Board of Directors. It appears from the materials before me that her representative had procedural concerns about the following:

• not receiving a hard copy of Mr. Mattern’s investigation reports (Exhibits R-2, Tab 43, pages 464 to 514-52, R-1, Tab 14, pages 42 to 58, R-2, Tab 44, pages 515 to 530-26, and R-2, Tab 45, pages 531 to 534), when he in fact received an electronic copy;
• the copy of the 2009 Dispute Resolution Policy, obtained from the Institute’s website on November 5, 2009 (Exhibit G-1, Tab Q);
• an alleged lack of jurisdiction of the Institute’s Executive Committee to discipline Ms. Bremsak;
• an alleged conflict of interest among the Institute’s Board of Directors; and
• the enforcement of Bremsak 2 (original complaints).

From a review of the emails exchanged between Ms. Bremsak’s representative and Mr. Grenville-Wood between October 30, 2009 and November 5, 2009 (Exhibit G-1, Tab Q), it appears that Ms. Bremsak’s representative devoted significant efforts to challenging the Executive Committee’s decision with Mr. Grenville-Wood, without ever filing an appeal to the Board of Directors. There is no explanation before me of why Ms. Bremsak did not file an appeal of the Executive Committee’s decision. Filing an appeal was an available remedy that she did not invoke. Further, no late filing of the appeal was made; nor did Ms. Bremsak request that the Institute extend the time limit for a late appeal filing.

213 Ms. Roy was questioned about paragraph 13 of the document entitled “Response to the Complaint in Board File 561-34-405” (Exhibit R-1, Tab 15, page 61), which reads as follows: “[a]t all relevant times, the Respondents were acting in accordance with the directions and instructions of the Institute’s Board of Directors.” Ms. Roy indicated that it was a form of pleading and that the Institute did not encourage any of its members to file the April 2009 harassment complaints or the June 2009 harassment complaint.

214 Ms. Roy was questioned about the following statement in the five-year suspension complaint: “The Respondents trumped up fake charges of harassment that do not meet the definition of harassment according to the PIPSC’s harassment policy.” Ms. Roy testified that that statement was absolutely false and preposterous and that she and the Institute had no role in encouraging the members to file the April 2009 harassment complaints or the June 2009 harassment complaint. She noted that a neutral third party investigated the April 2009 harassment complaints and the June 2009 harassment complaint and that most of the allegations were founded.

215 Part of Ms. Roy’s duties with the Institute is to interpret the By-Laws. She testified that the By-Laws do not require that policies be approved at the Institute’s annual general meeting. However, the Institute’s annual general meeting can result in policy direction being given to the Institute’s Board of Directors.

6. Mr. Kendell’s testimony

a. Examination-in-chief

216 Mr. Kendell testified that, in 2008, he held a position on the Vancouver Branch Executive and that he held other Institute positions. He testified that the Vancouver Branch Executive played no role in the decision of the Institute’s Board of Directors to suspend Ms. Bremsak from elected offices under the Policy Related to Members and Complaints to Outside Bodies.

217 Mr. Kendell was one of the five members of the Vancouver Branch Executive, including Mr. Jansen, Ms. Kerr, Mr. Ansari, and Mr. Peters, who filed the April 2009 harassment complaints by a letter of April 2, 2009. The covering letter for the April 2009 harassment complaints reads as follows (Exhibit R-1, Tab 18, page 115):

…

… the undersigned have reached their tolerance limit for the continued harassment and threats made by Irene Bremsak. Our numerous attempts at distancing ourselves from her complaint to the PSLRB have obviously failed when we receive [sic] threating [sic] emails, phone calls, and ‘sticky’ in-person conversations.

Attached are copies of emails received from Irene, and the notes from some telephone calls received by us. In addition to the emails below, a number of us have received voice mails demanding actions be performed that would be inappropriate considering Irene’s suspension from executive groups.

…

Mr. Kendell said that, by that point, the situation with Ms. Bremsak had been ongoing for over a year. He and the others felt that it had to be dealt with as they had achieved no success.

218 Mr. Kendell confirmed his four allegations of harassment on May 5, 2009 (Exhibit R-1, Tab 18, page 123), which read as follows:

1. I allege harassment by Irene Bremsak on April 11, 2008 when she verbally abused Kathy Kerr and me during a telephone conversation regarding her suspension from the Vancouver Branch Executive.
2. I allege harassment by Irene Bremsak on April 23, 2008, when she verbally abused me at a Vancouver Branch Executive Meeting.
3. I allege harassment by Irene Bremsak in the spring of 2008 when subsequent to her suspension from the Vancouver Branch Executive, she named me in a frivolous complaint to the Public Service Labour Relations Board.
4. I allege harassment by Irene Bremsak on March 22, 2009, when she threatened me and other members of the Vancouver Branch Executive with legal action by EMail.

Mr. Mattern investigated Mr. Kendell’s allegations of harassment. In his investigations analysis report, Mr. Mattern found evidence of harassment by Ms. Bremsak with respect to the first, third and fourth allegations (Exhibit R-1, Tab 14, pages 49 to 52.)

219 For the April 11, 2008 incident in Mr. Kendell’s first allegation of harassment, he testified that he was present during a telephone call initiated by Ms. Bremsak to Ms. Kerr. Mr. Kendell became part of that conversation at Ms. Kerr’s request, as Ms. Kerr and he worked in the same office. He described Ms. Bremsak as forceful. She requested their help in her fight against the Institute’s Board of Directors. Ms. Bremsak stated that, if they did not go along with her, they would be part of an illegal act and would be named in a formal complaint with the PSLRB. Later that day, Ms. Kerr sought advice from the Board of Directors about Ms. Bremsak’s suspension from elected offices. Mr. Kendell had drafted an email (Exhibit R-2, Tab 43, page 514-33) which Ms. Kerr sent to Ms. Ralston seeking advice, including whether, as an Institute member, Ms. Bremsak could be a delegate to the upcoming 2008 Regional Council meetings.

220 Ms. Ralston responded by email on April 18, 2008 (Exhibits G-1, Tab J, and R-2, Tab 43, page 514-34) that Ms. Bremsak could not be considered a delegate to the 2008 Regional Council meetings. Mr. Kendell saw that as advice to be considered by members of the Vancouver Branch Executive at an upcoming meeting. Attending the April 23, 2008 meeting along with members of the Vancouver Branch Executive were Mr. Gray and Ms. Bremsak. Mr. Kendell and another member of the Vancouver Branch Executive asked for a closed session, from which Mr. Gray and Ms. Bremsak were excluded. Given that Mr. Mattern did not find Mr. Kendell’s second allegation of harassment founded, I will not review Mr. Kendell’s testimony on the April 23, 2008 meeting of the Vancouver Branch Executive.

221 Mr. Kendell’s third allegation of harassment was about not having any control over the decisions of the Institute’s Board of Directors to suspend Ms. Bremsak from elected offices.

222 Mr. Kendall’s fourth allegation of harassment referred to Ms. Bremsak’s March 22, 2009 email requesting the Vancouver Branch Executive to appoint her a delegate to the 2009 Regional Council meeting (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30). Ms. Bremsak stated in that email that, unless members of the Vancouver Branch Executive voted for her to be a delegate, they would be named in a complaint with the PSLRB. The email reads as follows:

I am formally requesting that the PIPSC Vancouver Branch include my name, Irene Bremsak, as a delegate (rather than as an alternate) to the 2009 BC/Yukon Regional Council in June. I have been duly elected to the Vancouver Branch for more than two successive terMs. [sic] I have attended the majority of the meetings since being elected. Furthermore, I also request the result of a counted vote (immediately after the vote) since that would include the names of each person and how they voted on my attendance.

If you have any concerns, forward the list of delegates to the BC/Yukon Regional Executive, who will in turn forward it to the Board of Directors (I have already spoken to Dan Jones who agrees that the issue of my eligibility lies only with the BoD. Let the BOD make the final decision regarding my eligibility, asking for outside independent legal opinion to substantiate their position.

As such if I am not included in the Vancouver Branch’s list to the BC/Yukon Regional Executive for the 2009 Regional Council, I will have no choice, but to submit a new complaint to the PSLRB, with the name of each and every executive member of the Vancouver Branch who voted against my attendance, unless able to prove that they voted for my attendance. N.B. Both Kath Kerr and Geoff Kendell were already named in my current complaint to the PSLRB for violating my rights. By not putting my name forward as a delegate, you would be violating my rights as a member of PIPSC and such actions are against sec 188 of the PSLRA, please review if in doubt.

[Emphasis added]

Mr. Kendell saw the email as another threat. He said that, clearly, all of Ms. Bremsak’s behaviours were unwelcome and unwanted. He felt humiliated, insulted and degraded by such harassment. He wanted the April 2009 harassment complaints dealt with quickly so that the harassment would stop and so that the Vancouver Branch Executive could get on with its business.

223 Mr. Kendell, along with Mr. Ansari and Ms. Kerr, joined in the June 2009 harassment complaint (Exhibit R-1, Tab 9, page 32, and R-1, Tab 12, page 40) about the June 3, 2009 incident at the Old Bavaria Haus Restaurant. Mr. Kendell’s allegation in this regard reads as follows:

I allege harassment by John Lee acting as IB’s agent and representative on June 3, 2009. John Lee disrupted the scheduled joint meeting of the Vancouver Branch and CRA Branch by threatening legal action if IB was not immediately reinstated as the President of the Vancouver Branch Executive.

Stephen Lee and Mr. Ansari made similar allegations. They both also alleged that Ms. Bremsak’s representative threatened to have them fined if they did not agree to the request to immediately reinstate Ms. Bremsak.

224 Mr. Kendell testified that the Old Bavaria Haus Restaurant had other patrons at the time of the incident of June 3, 2009 and that they would have been able to clearly hear Ms. Bremsak’s representative. Ms. Bremsak’s representative disrupted the June 3, 2009 meeting, and the joint meeting of the Vancouver Branch Executive and Vancouver – CRA Branch Executive did not take place. Mr. Kendell believes that Ms. Bremsak’s representative told members of the Vancouver Branch Executive could each be fined $1000 for each incident of a breach of the Act. Mr. Kendell stated that he believes that Ms. Bremsak’s representative recorded the meeting using an audio device. Mr. Kendell said that the conduct of Ms. Bremsak’s representative was unwelcome and unwanted as well as humiliating, insulting, demeaning and embarrassing. Mr. Kendell said that he and other attendees were shocked, embarrassed and upset.

225 Mr. Kendell asked Ms. Kerr to send his complaint to the Institute. He wanted Ms. Bremsak’s harassment to stop as by then it had been ongoing on for about 18 months. He said that he felt trapped in a dispute between Ms. Bremsak and the Institute’s Board of Directors. He testified that the Board of Directors had no role in his decision to file a complaint. He emailed Mr. Grenville-Wood on July 6, 2009, indicating that he wished to file the June 2009 harassment complaint against Ms. Bremsak and her representative (Exhibit R-1, Tab 12, page 40).

226 In his investigations analysis report (Exhibit R-2, Tab 45, pages 531 to 534), Mr. Mattern determined that the events alleged in the June 2009 harassment complaint did occur and left it to the Institute to determine whether the behaviour of Ms. Bremsak’s representative fell within the purview of the Harassment Policy and whether Ms. Bremsak was involved in the June 3, 2009 incident at the Old Bavaria Haus Restaurant as she was present while her representative spoke.

b. Cross-examination

227 Mr. Kendell was cross-examined. Some of the questions posed to him were not relevant, including the following:

• whether the Institute’s Board of Directors had a basis on which to suspend Ms. Bremsak under the Policy Related to Members and Complaints to Outside Bodies; and
• one about his interpretation of the By-Laws, although he is not a lawyer, was not familiar with the By-Laws and had not referred to the By-Laws; there was also substantial information before me from two other witnesses familiar with interpreting the By-Laws.

228 Mr. Kendell said that he became involved with Ms. Bremsak’s phone call of April 11, 2008 to Ms. Kerr, at Ms. Kerr’s request, because Ms. Kerr had earlier received an upsetting communication from Ms. Bremsak. Mr. Kendell testified that the Vancouver Branch Executive sought advice about how to deal with Ms. Bremsak and her suspension from elected offices because it did not know what to do. He believed that Ms. Ralston would be able to obtain correct advice given her position in the national office. Mr. Kendell confirmed that the main problem involved Ms. Bremsak’s delegate status.

229 Mr. Kendell was unclear about who contacted Mr. Gray and invited him to attend the April 23, 2008 meeting of the Vancouver Branch Executive.

230 Mr. Kendell did not take Ms. Bremsak’s March 22, 2009 email requesting the Vancouver Branch Executive to appoint her a delegate to the 2009 Regional Council meeting (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30) as a warning. He was cross-examined on his statement to Mr. Mattern (Exhibit G-8). No inconsistencies emerged between his statement and his oral testimony. He viewed Ms. Bremsak’s email as a threat.

231 Mr. Kendell did not find all comments made by Ms. Bremsak bothersome to him. He indicated that he had a higher tolerance than others might have in similar circumstances. The Harassment Policy, however, specifies an obligation to report incidents that one witnesses involving other persons.

232 With respect to the June 3, 2009 incident at the Old Bavaria Haus Restaurant, Mr. Kendell confirmed that he did not know whether Ms. Bremsak or her representative brought one or two children to the meeting or how much of the meeting was recorded. He confirmed that it was a large restaurant.

233 Mr. Kendell did not understand why Ms. Bremsak was so keen to be a delegate.

234 Mr. Kendell confirmed that he was unaware of the number of complaints before the PSLRB in which Ms. Bremsak had named him. He did not discuss the April 2009 harassment complaints of the June 2009 harassment complaint with her, as a common theme with her was that, if he did not comply with her demands, she would name him in a complaint with the PSLRB.

7. Mr. Peters’ testimony

a. Examination-in-chief

235 Mr. Peters was treasurer of the Vancouver Branch. He was on the Vancouver Branch Executive and held other Institute positions. He confirmed that the Vancouver Branch Executive had no role in the decision of the Institute’s Board of Directors to suspend Ms. Bremsak’s from elected offices under the Policy Related to Members and Complaints to Outside Bodies.

236 Mr. Peters was present at the Vancouver Branch Executive meeting of April 23, 2008, and he made a motion to go into closed session. He said that Ms. Bremsak’s suspension from elected offices was a new issue and that the Executive did not know how to proceed.

237 Mr. Peters filed the April 2009 harassment complaints along with other members of the Vancouver Branch Executive on or about April 2, 2009 (Exhibit R-1, Tab 18, pages 115 and 125). He said that, by then, issues had been ongoing with Ms. Bremsak for more than a year. He felt like she was trying to control the Vancouver Branch Executive. He said that the chair (Ms. Kerr) looked “pretty rough” at that time. He said that everyone on the Vancouver Branch Executive felt down because of how Ms. Bremsak treated them. They were not sure what to do. After a dinner meeting, they determined to file the April 2009 harassment complaints. Mr. Peters’ allegations of harassment were as follows (Exhibit R-1, Tab 18, page 125):

1. I allege harassment by Irene Bremsak’s EMail dated April 11, 2008 which said I condoned the illegal actions of the PIPSC Board of Directors by remaining mute.
2. I allege harassment by Irene Bremsak on April 24, 2008 when she bullied me and my union executive colleagues on the Vancouver Branch Executive.
3. I allege harassment by Irene Bremsak on March 22, 2009 when she threatened and bullied me and my union executive colleagues on the Vancouver Branch Executive.

In his investigation analysis report on the April 2009 harassment complaints, Mr. Mattern determined that the allegations were founded and that they amounted to harassment (Exhibit R-1, Tab 14, pages 56 to 58).

238 With respect to his first allegation of harassment, Mr. Peters stated that he received from Ms. Bremsak an email dated April 11, 2008 (R-2, Tab 43, page 514-36). After the email notes that Ms. Bremsak was suspended from elected offices, its salient section reads in part as follows:

…

The actions taken by the PIPSC BoD are illegal and contravene the PSLRA. By not accepting the decision of the BoD and protesting within your group, sub-group, branch or other executive you send a clear message to the BoD that these actions are not acceptable. If the support is limited to within your PIPSC group, according to the policy, the BoD cannot take action because this remains within the PIPSC processes. Therefore this policy cannot apply.

But, by remaining mute and accepting their decision, you condone the illegal actions and become an accomplice of the PIPSC BoD.

…

Mr. Peters testified that he felt insulted and degraded by the email and by the allegation that, by remaining mute, he became an accomplice to an illegal action. He said that the Institute’s Board of Directors was a higher authority and that he could have faced disciplinary action had he taken the action suggested by Ms. Bremsak.

239 As for his second allegation of harassment, Mr. Peters was copied on Ms. Bremsak’s April 24, 2008 (16:12) email entitled “SHAME ON YOU!” (Exhibits R-1, Tab 18, page 116, R-2, Tab 40, page 371, and R-2, Tab 43, page 514-47). He felt upset about being included in the allegation of having broken the law. He was concerned about the last statement, which mentioned that Ms. Bremsak’s representative would deal with him, and believed that further action would be taken against him.

240 With respect to his third allegation of harassment, Mr. Peters stated that Ms. Bremsak had asked in January to have her way paid to the 2009 Regional Council meeting as an observer. He then received Ms. Bremsak’s March 22, 2009 email requesting the Vancouver Branch Executive to appoint her a delegate to the 2009 Regional Council meeting (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30) that he saw as an attempt to control his voting. He found it insulting in that it insinuated that he could not think for himself and vote freely. He thought that her behaviour was degrading and bullying. He emailed the acting president of the Institute, Gary Corbett (Exhibit R-1, Tab 6, page 27). Mr. Peters stated that Ms. Bremsak’s email contained an unwelcome threat, and he asked Mr. Corbett to put a stop to it. Mr. Peters thought that Ms. Bremsak’s conduct was quite wrong, offensive and threatening. He hoped that the April 2009 harassment complaints that he filed a week or two later would end her threats.

241 Mr. Peters was also present at the June 3, 2009 incident at the Old Bavaria Haus Restaurant. He said that events had occurred before he arrived, that Ms. Bremsak was at the meeting as an observer and that Ms. Kerr was visibly upset. Ms. Kerr and Ms. Bremsak conversed about taping the meeting. He felt that the meeting could not continue under the circumstances.

242 Mr. Peters testified that the Institute’s Board of Directors had no role in his decision to file the April 2009 harassment complaints and the June 2009 harassment complaint. He said that he did it in his personal capacity.

b. Cross-examination

243 In cross-examination, Mr. Peters confirmed that the Vancouver Branch Executive had no role in the decision to suspend Ms. Bremsak from elected offices. He believed that the Institute’s Board of Directors enforced the order. He confirmed his belief that he and the Vancouver Branch Executive could have been subject to disciplinary action had they supported Ms. Bremsak after she was suspended.

244 Mr. Peters did not raise any issues with Ms. Bremsak before he filed the April 2009 harassment complaints and the June 2009 harassment complaint.

8. Mr. Ansari’s testimony

a. Examination-in-chief

245 Mr. Ansari was a member-at-large of the Vancouver Branch Executive. He also held offices in other local Institute components.

246 Mr. Ansari testified that the Vancouver Branch Executive had no role in Ms. Bremsak’s suspension from elected offices by the Institute’s Board of Directors and had no authority to reinstate her in her positions.

247 Mr. Ansari confirmed his two allegations of harassment on May 6, 2009 (Exhibit R-1, Tab 18, page 121), which read as follows:

1. I allege harassment by Irene Bremsak in March 2009 when she verbally threatened to name me in her complaint with the PSLR Board if I did not nominate her as a delegate for the 2009 Regional Council in Kelowna.
2. I allege harassment by Irene Bremsak on March 22, 2009 when she threatened by EMail to name me in a new complaint with the PSLR Board if I did not nominate her as a delegate for the 2009 Regional Council in Kelowna.

In his investigation analysis report on the April 2009 harassment complaints, Mr. Mattern determined that both allegations were founded and that they amounted to harassment (Exhibit R-1, Tab 14, pages 44 and 45).

248 Mr. Ansari decided to file the April 2009 harassment complaints after a meeting with other Vancouver Branch Executive members. His concern was that Ms. Bremsak knew that she was under suspension from elected offices and yet she asked him to nominate her as a delegate to the 2009 Regional Council meeting. He told her that that was double-dipping to be asked to be made a delegate by the Vancouver Branch Executive since she also occupied a seat on the B.C./Yukon Region Executive. He asked her why she wanted to be a delegate of the Vancouver Branch Executive. She asked him if he would like to be named in a complaint. Mr. Ansari asked her what she meant by that, and she threatened that, if he did not nominate her, she would include his name in complaints with the PSLRB.

249 Mr. Ansari’s second allegation of harassment was Ms. Bremsak’s March 22, 2009 email requesting the Vancouver Branch Executive to appoint her a delegate to the 2009 Regional Council meeting (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30). Again, it contained a threat to name Mr. Ansari in a complaint before the PSLRB. He said that he felt quite threatened by the email as he had no authority to reinstate her into her elected offices or to nominate her as a delegate, as she was under suspension from elected offices.

250 Mr. Ansari attempted to stop the harassment once and for all by filing his allegations of harassment.

251 Mr. Ansari also filed the June 2009 harassment complaint based on the June 3, 2009 incident at the Old Bavaria Haus Restaurant. As noted earlier, Mr. Mattern determined that the alleged incident occurred. Mr. Ansari was present at the restaurant during the incident. The restaurant was crowded, and other patrons would have been able to hear and watch Ms. Bremsak’s representative. Mr. Ansari said that the business portion of the meeting did not take place and that they all left after the dinner. As a result, he emailed Mr. Peters and copied other members of the Vancouver Branch Executive and certain members of the Institute’s Board of Directors (Mr. Corbett, Acting President, Mr. Gray and Don Burns, Vice-President) expressing that the incident was unexpected and shocking and that he hoped that the Board of Directors would do something to avoid a repeat performance at the 2009 Regional Council meeting. Mr. Ansari felt embarrassed and insulted by the threat by Ms. Bremsak’s representative to have him fined $1000. Mr. Ansari noted that the threat was made in front of his colleagues, colleagues from the Vancouver – CRA Branch Executive and other restaurant patrons. He felt demeaned.

252 Mr. Ansari felt frustrated and embarrassed that Ms. Bremsak had named him in the retaliation complaint because he had filed the April 2009 harassment complaints and joined in the June 2009 harassment complaint against her. He felt that she was pursuing him for something over which he had no authority.

b. Cross-examination

253 Mr. Ansari said that he was not aware of the full details of why the Institute originally suspended Ms. Bremsak from elected offices. He believed that it was in connection with a disciplinary matter.

254 Mr. Ansari was cross-examined on Mr. Mattern’s interview notes, made during the investigations (Exhibit G-9). Mr. Ansari agreed that he did not say that he felt “demeaned” during the June 3, 2009 incident at the Old Bavaria Haus Restaurant but that he did use the word “threatened.”

255 Mr. Ansari agreed that he did not tell Ms. Bremsak to stop harassing him. He did not advise her of any other avenues to resolve the alleged harassment. He agreed that her complaints had to do with her desire to be a delegate at Institute events. Mr. Ansari agreed that, hypothetically, had Ms. Bremsak been reinstated as the Vancouver Executive Branch president, she could have been a delegate to Institute events, had she been nominated. Mr. Ansari did not know if Ms. Bremsak was up for re-election at that point.

256 Mr. Ansari was asked about the suggestion in Ms. Bremsak’s March 22, 2009 (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30) that the Vancouver Branch Executive nominate her as a delegate to the 2009 Regional Council meeting and then let the Institute’s Board of Directors make the final decision. Mr. Ansari said that she was under suspension from elected offices and that he did not see how she could be nominated. Mr. Ansari knew the dictionary definition of “warning.” He did not consider the March 22, 2009 email a warning.

257 Mr. Ansari was asked about the definition of “harassment” in the Harassment Policy. He agreed that the words “threatening” were not included in the definition.

258 Mr. Ansari was asked about the June 3, 2009 incident at the Old Bavaria Haus Restaurant. He could not recall the number of patrons who could have observed everything. He saw a recording device about the size of a cell phone, and he thought that it was probably black in colour. He said that Ms. Bremsak’s representative left documents on a table that Mr. Ansari did not pick up and Mr. Ansari did not know what those documents were.

259 Mr. Ansari was referred to paragraph 5 of Ms. Ralston’s April 18, 2008 email (Exhibits G-1, Tab J, and R-2, Tab 43, page 514-34), which reads as follows: “5. Other: Should you or any of your members be faced with a situation of intimidation/threat, would you please document incident [sic] immediately and send into [sic] the Office of the President.”

260 Mr. Ansari confirmed that the Institute’s Board of Directors had no role in filing the April 2009 harassment complaints and joining in the June 2009 harassment complaint.

9. Ms. Kerr’s testimony

a. Examination-in-chief

261 At the relevant time, Ms. Kerr was Vice-President of the Vancouver Branch Executive and was involved in other local Institute components.

262 Ms. Kerr testified that the Vancouver Branch Executive had no role in the decisions of the Institute’s Board of Directors to suspend Ms. Bremsak from elected offices on April 9, 2008 (Exhibit R-1, Tab 19, page 126). Ms. Kerr testified that the Vancouver Branch Executive had no authority to reverse Ms. Bremsak’s suspension or to reinstate her in her position with the Vancouver Branch Executive.

263 Ms. Kerr communicated with Ms. Bremsak on April 11, 2008. By then, Ms. Bremsak had left several messages for Ms. Kerr to call her back. Ms. Kerr emailed Ms. Ralston, then the executive assistant to the Institute’s president, on April 11, 2008 (Exhibit R-2, Tab 43, page 514-33). Ms. Ralston was the contact person in the Institute’s national office. Ms. Kerr sent the email for advice on Ms. Bremsak’s following three questions:

• could Ms. Bremsak be a delegate to the 2008 Regional Council meetings?;
• could Ms. Bremsak be copied on all Vancouver Branch correspondence?; and
• could Ms. Bremsak continue to attend the Vancouver Branch Executive meeting and sub-group meetings?

Ms. Ralston replied on April 18, 2008 (Exhibits G-1, Tab J, and R-2, Tab 43, page 514-34). However, Ms. Kerr believes having been on an earned day off and having received Ms. Ralston reply only sometime before the Vancouver Branch Executive meeting of April 23, 2008. Ms. Kerr provided a copy of Ms. Ralston’s reply to Mr. Kendell, but she did not provide it to Ms. Bremsak. She said that she did not want to have any more contact with Ms. Bremsak after the April 14, 2008 call and that she did not want to risk receiving more threats. Ms. Kerr did not provide the email to other Vancouver Branch Executive members before the April 23, 2008 meeting as she knew that she would see them at the meeting.

264 Ms. Kerr attended the Vancouver Branch Executive meeting on April 23, 2008 with trepidation. She was extremely upset because of the April 14, 2008 call she had received from Ms. Bremsak. Ms. Kerr said that she was the last person to arrive at the meeting and that her hands shook as she poured herself a glass of water. Other than the other members of the Vancouver Branch Executive, Ms. Bremsak attended, as did Mr. Gray. Ms. Kerr stated that she believed that she must have invited Mr. Gray to the meeting. The Vancouver Branch Executive meeting went into closed session to consider Ms. Bremsak’s request to be a delegate to the 2008 Regional Council meetings. Mr. Gray stayed in the room for a short time after Ms. Bremsak left, and he repeated Ms. Ralston’s reply (Exhibits G-1, Tab J, and R-2, Tab 43, page 514-34) to Ms. Kerr’s April 11 email on the three questions that she had posed. During the closed session, Ms. Kerr related her April 14 phone call with Ms. Bremsak to the members of the Vancouver Branch Executive. In that call, Ms. Bremsak told Ms. Kerr that, to avoid being named in a complaint with the PSLRB, Ms. Kerr was to (1) keep Ms. Bremsak in the loop on everything, (2) not refer to Ms. Kerr as the president of the Vancouver Branch, and (3) ensure that the exact wording of a motion passed that Ms. Bremsak dictated to Ms. Kerr. Ms. Bremsak told Ms. Kerr that she had spoken with a lawyer that morning, who had advised her that the Policy Related to Members and Complaints to Outside Bodies was illegal. Ms. Kerr said that Ms. Bremsak told her that the lawyer had informed Ms. Bremsak that the person who had drafted the Policy Related to Members and Complaints to Outside Bodies had committed professional misconduct and that anyone who acted on the Policy Related to Members and Complaints to Outside Bodies would be named in a writ. Ms. Kerr said that there was no further discussion of Ms. Bremsak being a delegate to the Institute’s annual general meeting as the Institute had advised the Vancouver Branch Executive that Ms. Bremsak could not be considered as a delegate. Ms. Kerr did not recall whether she asked for all copies of Ms. Ralston’s reply to be returned to her but recalled that she received one and that she left with it.

265 Ms. Bremsak requested a copy of Ms. Ralston reply email of April 18, 2008 (Exhibits G-1, Tab J, and R-2, Tab 43, page 514-34), which she characterized as a legal opinion in an email that Ms Bremsak sent to Ms. Kerr on April 24, 2008 (Exhibit R-2, Tab 43, page 514-48). Ms. Kerr replied as follows (Exhibit R-1, Tab 18, page 117): “I am, by copy of this email, forwarding your below-noted email to the Institute’s Executive Committee for their response, as this is a matter between you and the Board of Directors.”

266 Ms. Kerr indicated that she never referred to Ms. Ralston reply email of April 18, 2008 (Exhibits G-1, Tab J, and R-2, Tab 43, page 514-34) as a legal opinion and that she wanted Ms. Bremsak to obtain that email directly from the Institute’s Board of Directors as it was a matter between it and Ms. Bremsak with which Ms. Kerr did not wish to be involved.

267 Ms. Kerr indicated that she was upset by Ms. Bremsak’s April 24, 2008 (16:12) email entitled “SHAME ON YOU!” (Exhibits R-1, Tab 18, page 116, R-2, Tab 40, page 371, and R-2, Tab 43, page 514-47). Ms. Kerr said that it was false for Ms. Bremsak to allege that Ms. Kerr was breaking the law, that Ms. Kerr felt insulted by that slur against her character as that she does not intentionally break the law. She felt threatened by the following words in the email: “May you get what you deserve.” She said that the dispute was between Ms. Bremsak and the Institute’s Board of Directors. Ms. Kerr said that she did not make the decision to suspend Ms. Bremsak from elected offices. Ms. Kerr said that the Institute and Ms. Bremsak have made their respective positions known to the PSLRB and that at no time did Ms. Kerr take any steps to prevent Ms. Bremsak from bringing her case forward to the PSLRB. Ms. Kerr felt extremely threatened and upset because Ms. Bremsak’s dispute was with the Board of Directors and not with Mr. Kerr, the SP Vancouver Sub-Group or the Vancouver Branch. Ms. Kerr felt upset and extremely shaken because Ms. Bremsak was trying to coerce and pressure her to take a position against the Board of Directors, which could have resulted in discipline for Ms. Kerr. Ms. Kerr felt embarrassed and humiliated because Ms. Bremsak’s email was copied to other members of the Vancouver Branch Executive and was a slur on Ms. Kerr’s character in that it insinuated that Ms. Kerr was incapable of understanding the law, that she had stabbed Ms. Bremsak in the back, that Ms. Kerr tried to hide information from Ms. Bremsak and that Ms. Kerr knowingly broke the law.

268 Ms. Kerr said that she obtained a law degree about 25 years ago, was called to the bar and practiced for one year, primarily in immigration law.

269 Ms. Kerr confirmed that she was part of a group that filed the April 2009 harassment complaints (Exhibit R-1, Tab 18, pages 115). Mr. Jansen composed the cover letter. Ms. Kerr said that the breaking point for her was Ms. Bremsak’s March 22, 2009 email requesting the Vancouver Branch Executive to appoint her a delegate to the 2009 Regional Council meeting (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30). Ms. Kerr was aware that other members of the Vancouver Branch Executive had experienced harassment and had felt upset with Ms. Bremsak’s behaviour. Ms. Kerr confirmed the following allegations of harassment (Exhibit R-1, Tab 18, page 124):

1. I allege harassment by Irene Bremsak on Monday April 14, 2008 when she threatened me with litigation if I did not comply with the actions she specified.
2. I allege harassment by Irene Bremsak on Thursday April 24, 2008, when she sent me what I considered to be a threatening EMail.
3. I allege harassment by Irene Bremsak on Sunday March 22, 2009 when she sent me what I considered to be a threatening EMail.

In his investigation analysis report on the April 2009 harassment complaints, Mr. Mattern considered the allegations founded and that they amounted to harassment (Exhibit R-1, Tab 14, pages 53 to 55).

270 Ms. Kerr felt that her allegations of harassment met the definition of harassment in the Harassment Policy. Ms. Kerr said that, with respect to her first allegation of harassment, Ms. Bremsak knew that Ms. Kerr had no authority to remove her suspension from elected offices or to appoint her as a delegate to the 2008 Regional Council meetings. Ms. Kerr said having felt harassed because Ms. Bremsak had specified a course of action that Ms. Kerr had no authority to take and that Ms. Kerr risked discipline from the Institute had she chosen that course of action. Ms. Kerr felt insulted and demeaned. Ms. Bremsak also knew that a panel of the PSLRB had not yet ruled on the second original complaint. Ms. Kerr said that the April 14, 2008 call was extremely upsetting.

271 With respect to her second allegation of harassment, Ms. Kerr stated that Ms. Bremsak’s April 24, 2008 (16:12) email entitled “SHAME ON YOU!” (Exhibits R-1, Tab 18, page 116, R-2, Tab 40, page 371, and R-2, Tab 43, page 514-47) was insulting, humiliating and embarrassing.

272 With respect to her third allegation of harassment, Ms. Kerr said that she wanted the written and verbal abuse to stop as she felt that Ms. Bremsak’s dispute was with the decision of the Institute’s Board of Directors to suspend her from elected offices and that each side could present its case to a panel PSLRB for consideration. Ms. Kerr reiterated that she did not make the decision to suspend Ms. Bremsak.

273 Ms. Kerr filed the June 2009 harassment complaint because she wanted Ms. Bremsak’s harassing behaviour to stop. She was concerned that the June 3, 2009 incident at the Old Bavaria Haus Restaurant took place in a public place and that it would happen again. She felt that the incident was an escalation of the situation during a period when a panel of the PSLRB had not yet made a ruling on Ms. Bremsak’s suspension from elected offices. Ms. Kerr was present at the June 3, 2009 incident. As a result of the behaviour of Ms. Bremsak’s representative, Ms. Kerr and Paul Skinner, President, Vancouver – CRA Branch, decided to not call the meeting to order. The joint meeting of the Vancouver Branch Executive and Vancouver – CRA Branch Executive did not take place. Ms. Kerr said she was terrified and extremely upset. She emailed Mr. Grenville-Wood (Exhibit R-1, Tab 9, page 31), asking the PIPSC to take steps to “… prevent future harassment by Ms. Bremsak and her husband.”Ms. Kerr emailed Mr. Grenville-Wood again on June 16, 2009 (Exhibit R-1, Tab 9, page 32), indicating that she, Mr. Kendell and Mr. Ansari wished to jointly file the June 2009 harassment complaint about the June 3, 2009 incident. Ms. Kerr found the conduct of Ms. Bremsak’s representative humiliating and embarrassing.

274 Ms. Kerr said that the Institute’s Board of Directors had no role in her decision to file the April 2009 harassment complaints and to join in the June 2009 harassment complaint.

275 Ms. Kerr said that, as an Institute member, she is entitled to a harassment-free environment at Institute meetings and gatherings. Ms. Kerr felt that Ms. Bremsak’s retaliation complaint was more evidence of harassment. Ms. Kerr said having done nothing to prevent Ms. Bremsak or her representative from presenting Ms. Bremsak’s position to the PSLRB in Ms. Bremsak’s various complaints before the PSLRB.

b. Cross-examination

276 In cross-examination, Ms. Kerr admitted that she was named as a respondent in one of the original complaints.

277 Ms. Kerr was aware that Ms. Bremsak had been suspended from elected offices as the Institute had informed her. Ms. Kerr read the April 9, 2008 letter of the Institute’s Board of Directors (Exhibit R-1, Tab 19, page 126) and the Policy Related to Members and Complaints to Outside Bodies under which Ms. Bremsak was suspended. Ms. Kerr said that the letter was very clear that Ms. Bremsak was suspended. Ms. Kerr said that she did not take any steps after receiving the letter. Ms. Kerr did not author the letter and, if Ms. Bremsak had concerns with the letter, Ms. Bremsak should have directed her concerns to the Institute and not the SP Vancouver Sub-Group or the Vancouver Branch Executive. Ms. Kerr said that she never put her mind to the correctness of the decision of the Institute’s Board of Directors to suspend Ms. Bremsak. She said that Ms. Bremsak still continued to show up, to speak and to take part in meetings of the Vancouver Branch Executive. Ms. Kerr said not having informed Ms. Bremsak to not bring her complaint or present her case to the PSLRB and not having taken steps to hinder Ms. Bremsak.

278 Ms. Kerr said that Ms. Bremsak was aware that Mr. Kendell was on the call on April 11, 2008 and that Ms. Bremsak asked him questions. Ms. Kerr said that she emailed the Institute’s Board of Directors on April 11, 2008 (Exhibit R-2, Tab 43, page 514-33) with Ms. Bremsak’s questions as Ms. Kerr had never dealt with an Institute member that had been suspended from elected offices before. Ms. Kerr testified that Ms. Bremsak did not want Ms. Kerr to use the title of “acting president” and that, if Ms. Kerr did, Ms. Kerr’s name would be added to a writ, and Ms. Bremsak would consider Ms. Kerr as acting on the illegal policy. Ms. Kerr testified that she had been the president of the Vancouver Branch before Ms. Bremsak was elected into the role. Ms. Kerr said that Mr. Morin had nominated Ms. Bremsak. Ms. Kerr said not having run against Ms. Bremsak and that it was a relief no longer having to do all the volunteer work that went with the position. Ms. Kerr was not aware of whether Ms. Bremsak was up for re-election in her other Institute offices.

279 Ms. Kerr did not agree that the Vancouver Branch Executive enforced the decision of the Institute’s Board of Directors to suspend Ms. Bremsak from elected offices. The Board of Directors informed the Vancouver Branch Executive that Ms. Bremsak was suspended. Ms. Bremsak knew that, if the Vancouver Branch Executive disregarded the suspension, it would have faced discipline. Ms. Bremsak was suspended, and the Vancouver Branch Executive had no power to overturn the decision of the Board of Directors. It complied with the suspension.

280 Ms. Kerr denied withholding Ms. Ralston’s April 18, 2008 email (Exhibits G-1, Tab J, and R-2, Tab 43, page 514-34). She denied a suggestion from Ms. Bremsak’s representative that she retained the email to avoid a fruitful discussion at the April 23, 2008 meeting of the Vancouver Branch Executive. Ms. Kerr stated that Mr. Gray might have stayed 30 seconds longer than Ms. Bremsak before he left the meeting so that the Vancouver Branch Executive could discuss matters in private. Ms. Kerr said that nobody told Ms. Bremsak that Ms. Bremsak could not speak at the meeting. Ms. Kerr said that Mr. Gray was not given an opportunity to make a presentation; he stayed briefly and asked the Vancouver Branch Executive if they had any questions about the Institute’s decision that Ms. Bremsak could not be considered a delegate to the 2008 Regional Council meetings. Ms. Kerr testified that a B.C./Yukon Region meeting is held once a year. It is an annual general meeting. Ms. Kerr testified that Ms. Bremsak looked angry and not upset upon being informed that she could not be a delegate to the 2008 Regional Council meetings. Ms. Kerr said that Ms. Bremsak did not cry. Ms. Kerr recalls that the meeting ended when a waiter brought a bill. Ms. Kerr said that she would pay, but Ms. Bremsak said, “No, I will pay for it myself,” and Ms. Bremsak left. Ms. Kerr did not recall Ms. Bremsak ranting or raving at the meeting.

281 Ms. Kerr said that Vancouver Branch Executive meetings were casual. She said that the Vancouver Branch does not confine people to agenda items. Ms. Kerr said that Ms. Bremsak must have felt free to speak, as Ms. Bremsak emailed Ms. Kerr about the Institute’s decision after the April 23, 2008 Vancouver Branch Executive meeting. In the closed session, Ms. Kerr passed around Ms. Ralston’s April 18, 2008 email (Exhibits G-1, Tab J, and R-2, Tab 43, page 514-34) to anyone who wished to see it. Ms. Kerr did not pass out copies of the email and ask for them to be returned.

282 Ms. Kerr was questioned about the notes that Mr. Mattern made during the course of the harassment investigations (Exhibits G-10 and G-11). She agreed that the words “embarrassed” and “humiliated” do not appear in her statement, but she said that that does not mean that she did not feel that way at that time. Mr. Mattern did not ask her about her feelings.

283 Although Ms. Kerr was cross-examined vigorously, in my view, no significant departures appeared between her oral testimony and Mr. Mattern’s notes and the findings in his investigation findings report for the April 2009 harassment complaints. Ms. Kerr admitted that she emailed the Institute about Ms. Bremsak’s conduct, including the following emails:

• an email on April 24, 2008 (Exhibit R-2, Tab 43, page 514-50) about Ms. Bremsak’s April 24, 2008 (16:12) email entitled “SHAME ON YOU!” (Exhibits R-1, Tab 18, page 116, R-2, Tab 40, page 371, and R-2, Tab 43, page 514-47); and
• an email on April 28, 2008 about Ms. Bremsak’s April 14, 2008 phone call (Exhibit R-2, Tab 43, page 514-37); Ms. Kerr noted the last sentence of her email, which reads as follows: “(April 28, 2008) Postscript Note: I did not sent [sic] this earlier, as per your April 18, 2008 email request, as I had hoped to avoid escalating this matter. Thanks.”

284 Ms. Kerr was questioned about her evidence-in-chief that the Institute had no influence over the filing of the April 2009 harassment complaints and the joining in the June 2009 harassment complaint. She was referred to the following part of Ms. Ralston’s April 18, 2008 email (Exhibits G-1, Tab J, and R-2, Tab 43, page 514-34):“5. Other: Should you or any of your members be faced with a situation of intimidation / threat, would you please document incident [sic] immediately and send into [sic] the Office of the President.” Ms. Kerr testified that she filed the harassment complaints because in her view Ms. Bremsak’s conduct was harassment and Ms. Kerr was unable to take any more of it, which is why she raised her allegations of harassment on April 2, 2009 (Exhibit R-1, Tab 18, pages 115 and 124). Ms. Kerr was questioned about the steps she took to tell Ms. Bremsak that her conduct was unwanted and unwelcome. Ms. Kerr testified having tried to avoid Ms. Bremsak and having used body language, but Ms. Kerr said that she could not think of an explicit verbal exchange.

285 Ms. Kerr was asked about Ms. Bremsak’s March 22, 2009 email requesting the Vancouver Branch Executive to appoint her a delegate to the 2009 Regional Council meeting (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30). In particular, Ms. Kerr was questioned about the third paragraph, which reads as follows:

…

As such if I am not included in the Vancouver Branch’s list to the BC/Yukon Regional Executive for the 2009 regional Council, I will have no choice, but to submit a new complaint to the PSLRB, with the name of each and every executive member of the Vancouver Branch who voted against my attendance, unless able to prove that they voted for my attendance. N.B. Both Kathy Kerr and Geoff Kendell were already named in my current complaint to the PSLRB for violating my rights. By not putting my name forward as a delegate, you would be violating my rights as a member of PIPSC and such actions are against sec 188 of the PSLRA, please review if in doubt.

…

It was suggested to Ms. Kerr that that paragraph was a warning. Ms. Kerr said that she interpreted the email as a threat and that it never occurred to her that it was a warning. It was also suggested to Ms. Kerr that Ms. Bremsak offered an alternative to dealing with the situation in the second paragraph, as follows:

…

If you have any concerns, forward the list of delegates to the BC/Yukon Regional Executive, who will in turn forward it to the Board of Directors (I have already spoken to Dan Jones, who agrees that the issue of my eligibility lies only with the BoD). Let the BOD make the final decision regarding my eligibility, asking for outside independent legal opinion to substantiate their position.

…

Ms. Kerr stated that she saw that invitation as an attempt to coerce her into taking a position against the Institute’s Board of Directors. Ms. Kerr said that she had an email from the Board of Directors that stated that Ms. Bremsak was suspended from elected offices, that the suspension was an issue between Ms. Bremsak and the Board of Directors and that the suspension was a matter pending before a panel of the PSLRB.

286 Ms. Kerr was asked about the June 3, 2009 incident at the Old Bavaria Haus Restaurant. She said that she has relived it many times and that it was one of the most terrible things that have happened in her life. Ms. Kerr recalls that Ms. Bremsak was present and holding her child while Ms. Bremsak’s representative waved what he called “the Veillette decision,” and Ms. Kerr believes that Ms. Bremsak’s representative left a copy on the table. Ms. Kerr did not read Veillette 2 (indefinite administrative suspension from elected office).

10. Mr. Jansen’s testimony

a. Examination-in-chief

287 At the relevant time, Mr. Jansen was a member-at-large of the Vancouver Branch Executive, and he held other positions with Institute components in Vancouver. He confirmed that the Vancouver Branch Executive had no role in the decision to suspend Ms. Bremsak from elected offices and that it had no authority to revoke her suspension or to reinstate her to her elected position as Vancouver Branch president.

288 Mr. Jansen was present at the April 23, 2008 meeting of the Vancouver Branch Executive. He felt that it was appropriate to go into closed session to discuss in private Ms. Bremsak’s request to be a delegate to the 2008 Regional Council meetings. After Ms. Bremsak left the room, Mr. Gray pointed out the views of the Institute’s Board of Directors that the Vancouver Branch Executive was expected to follow. The discussion included the fact that Ms. Bremsak could not be a delegate because she was suspended from elected offices. Other cases were discussed in which the Policy Related to Members and Complaints to Outside Bodies had been applied. The Vancouver Branch Executive decided that Ms. Bremsak could not be a delegate as it had to follow the decision of the Institute’s Board of Directors. Mr. Jansen made notes after the meeting, and on May 21, 2008, he emailed them to Mr. Morin (Exhibit G-1, Tab 25). Ms. Bremsak requested that the notes be made, as the Vancouver Branch Executive could have been asked about what transpired in the session as the matter could have eventually reached a hearing before a panel of the PSLRB in the autumn of 2008. The salient part of Mr. Jansen’s notes reads as follows:

…

There was an email giving direction from PIPSC on how to handle a suspension. It was not a legal opinion. In it, it said no appointed position, therefore no delegate status for the regional council.

…

We also agreed it was inappropriate for the Vancouver Branch to give Irene a copy of the letter. She was to obtain a copy from the board of directors.

Other discussions were around the fact that we were bound by the policy, and could not work around it, even if we disagreed with it. As a process was under way challenging the policy, it was felt we should wait for the process to complete.

…

Mr. Jansen felt that his recollection of the meeting differed from that of Mr. Morin, which is why Mr. Jansen wrote the email. Mr. Jansen did not recall seeing Ms. Ralston’s April 18, 2008 email (Exhibits G-1, Tab J, and R-2, Tab 43, page 514-34) at the April 23, 2008 meeting, but its content was discussed. Mr. Jansen did not consider it a legal opinion because it was sent by an assistant to the Board of Directors, not from legal counsel. Ms. Jansen believed that Ms. Ralston was expressing the views of the Institute’s Executive Committee. Mr. Jansen testified that the Vancouver Branch Executive did not want to become involved in the dispute between Ms. Bremsak and the Board of Directors, which is why he wrote in his notes about Ms. Bremsak obtaining the email from the Board of Directors. He said that the Vancouver Branch Executive is expected to follow the Board of Directors’ directions and that, if it fails to comply with the Institute’s policies, the Vancouver Branch Executive would be in breach of those policies and directions given by the Board of Directors and could be subject to disciplinary action from the Institute.

289 Mr. Jansen confirmed that he was part of the group who filed the April 2009 harassment complaints (Exhibit R-1, Tab 18, pages 115 and 124). After discussing with other members of the Vancouver Branch Executive, he said that they felt that the continued harassment by Ms. Bremsak was unwanted and unwelcome and that it had to stop. The only way to make that happen was to raise allegations of harassment under the Harassment Policy. Mr. Jansen’s allegations of harassment were the following:

1. I allege harassment by Irene Bremsak on April 24, 2008 when she verbally abused me during a telephone conversation regarding the Vancouver Branch Executive’s decision not to submit her name as a delegate to the 2008 Regional Council and my decision not to support her complaint against the Institute.
2. I allege harassment by Irene Bremsak on November 19, 2008, when she verbally abused me and other members of the Vancouver Branch Executive regarding her complaint against the Institute and her suspension from office.
3. I allege harassment by Irene Bremsak on March 22, 2009, when she threatened me and other members of the Vancouver Branch Executive with legal action by EMail.

In his investigation analysis report for the April 2009 harassment complaints (Exhibit R-1, Tab 14, pages 46 to 48), Mr. Mattern determined that the first and second allegations did not meet the definition of harassment in the Harassment Policy, and determined that the third allegation was founded and that it amounted to harassment.

290 As for the third allegation of harassment, about Ms. Bremsak’s March 22, 2009 email requesting the Vancouver Branch Executive to appoint her a delegate to the 2009 Regional Council meeting (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30), Mr. Jansen said that it threatened legal action. He said that Mr. Mattern accepted the allegation. Mr. Jansen said that the email was humiliating and insulting because Ms. Bremsak knew that the Vancouver Branch Executive could do absolutely nothing about her suspension from elected offices. The email was an embarrassment. Mr. Jansen attempted to achieve peace and quiet by filing the April 2009 harassment complaints. He felt embarrassed to have to defend his action to other members.

291 Mr. Jansen attended the June 3, 2009 meeting at the Old Bavaria Haus Restaurant but arrived after Ms. Bremsak’s representative had made his comments about Veillette 2 (indefinite administrative suspension from elected office). Mr. Jansen said that the mood was sombre when he arrived. It was one of the most miserable dinners he has ever had. He understood that an altercation had occurred before he arrived. The consensus was that there was no point holding the business portion of the meeting, given the incident.

292 Mr. Jansen testified that he joined in the June 2009 harassment complaint as an individual Institute member. He said that the Institute’s Board of Directors had no role in his decision to join in the complaint. He said that he felt that it was continued harassment for Ms. Bremsak to name him in the retaliation complaint because of his decision to join in the June 2009 harassment complaint.

b. Cross-examination

293 Mr. Jansen confirmed that he was aware at the April 23, 2008 meeting that Ms. Bremsak had been suspended from elected offices. He believes that she was suspended under the Policy Related to Members and Complaints to Outside Bodies, although he was not aware of the details. However, he understood that Ms. Bremsak was suspended for filing a complaint with an outside body. I did not permit Ms. Bremsak’s representative to pursue questions about whether Ms. Bremsak had the right to file a complaint with an outside body, as it was not germane to the harassment issue; Bremsak 2 (original complaints) dealt with that issue. Mr. Jansen said that, at the meeting, the participants decided to follow the direction given by the Institute’s Board of Directors. He was not aware of the suspension details. To him, they were immaterial, as the Board of Directors had made the decision. Mr. Jansen confirmed that Ms. Bremsak was not present when Mr. Gray provided information on the extent of the suspension. Ms. Bremsak was asked to leave, as the Vancouver Branch Executive wanted to hear Mr. Gray’s input in private. Mr. Jansen did not recall whether Ms. Bremsak was willing to allow Mr. Gray to remain in the room. He recalled Mr. Gray’s explanation that a suspended member cannot hold appointed positions with the Institute. Mr. Jansen confirmed that Ms. Bremsak was not given a copy of Ms. Ralston’s April 18, 2008 email (Exhibits G-1, Tab J, and R-2, Tab 43, page 514-34) because it was felt that her dispute was with the Board of Directors and that it was appropriate for her to obtain her information from the Board of Directors and not from the individual members of the Vancouver Branch Executive. Mr. Jansen did not recall any motion put forward at the meeting to collect Ms. Ralston’s email.

294 Mr. Jansen said that an Institute member might come to the Vancouver Branch Executive for help on issues or policies but that the Branch could do nothing about the Institute’s policies. The assistance provided to Ms. Bremsak about her suspension from elected offices was that she was told to take the matter up with the Institute’s Board of Directors.

295 Mr. Jansen was challenged about why he waited until May 4, 2009 to raise an allegation of harassment about his April 24, 2008 telephone conversation with Ms. Bremsak. He stood by his allegation that Ms. Bremsak verbally abused him over the phone that day. He emailed Mr. Gray on April 24, 2008 (Exhibit R-1, Tab 22, page 139) because he knew of Ms. Ralston’s April 18, 2008 email (Exhibits G-1, Tab J, and R-2, Tab 43, page 514-34) that had asked to document incidents. In his email, Mr. Jansen wrote in part the following:

…

She is looking for a copy of the “legal opinion” which directed us to stop sending her information. I explained there was not legal paper per say, but rather the email (which she already knew about) from the executive as a whole. As we discussed last night, I suggested she ask for the information through disclosure or another means other than the branch as it is not for us to provide it.

Apparently the board has not been too cooperative in responding to her requests for information.
Her opinion is that as the branch exec does not want to provide the documents requested, we’re breaking the PSLRB discriminating/penalizing her. She’s also has the opinion that the board of directors have told us not to speak to her. The information she is looking for was discussed in closed session (which she was not too happy about), and therefore should not be disclosed to members not on the exec or in the meeting. It was a group discussion to ask her to obtain the information through other means.

She is also of the opinion that as she’s not allowed to be a delegate to the regional council, that we’re prevent her from attending the national AGM. She will apparently be sending me information about this policy (which I’ve never heard of before, and have not seen in practice).

I explained, as I have before to her, and mentioned last night, I’m sitting in the middle, with the opinion that both sides could have done something differently, and am waiting for the end of the process.

This resulted in a few words about needing to stand up to the corrupt upper echelons within PIPSC, and how the board of directions has muzzled dissenting views and positions.

I don’t think there were any direct threats against me, but my understanding of a threat is vastly different compared to others. As I’ve said she is not happy with the branch apparently breaking the PSLRB. It is possible that there was a threat there.

As requested, sending the information along.

…

[Sic throughout]

[Emphasis added]

Mr. Jansen said that the conversation was uncomfortable but that no direct threats were made against him. He characterized the incident as verbal abuse. He informed Mr. Gray because he saw a potential threat. Mr. Jansen denied that he was keeping an eye on Ms. Bremsak for the Institute’s Board of Directors. Mr. Jansen did not inform Ms. Bremsak of any alleged wrongdoing. It is clear from Mr. Jansen’s email that he explained that he was waiting for a panel of the PSLRB to render its decisions on the second original complaints, that Ms. Bremsak had a dispute with the Board of Directors and that she should deal with the Institute.

296 Mr. Jansen was cross-examined about his third allegation of harassment, which was about Ms. Bremsak’s March 22, 2009 email requesting the Vancouver Branch Executive to appoint her a delegate to the 2009 Regional Council meeting (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30). Mr. Jansen did not view Ms. Bremsak’s email as a warning. He saw the email as a threat by Ms. Bremsak because of her earlier actions. Mr. Jansen testified that he believed a threat from Ms. Bremsak could fall within the definition of harassment. Mr. Jansen stated that, every time a member of the Vancouver Branch Executive failed to follow Ms. Bremsak’s directions, a complaint was made with the PSLRB against that member. Mr. Jansen was aware of multiple complaints that Ms. Bremsak had made with the PSLRB. Mr. Jansen testified that he was not aware of the dates of all Ms. Bremsak’s filings with the PSLRB. Mr. Jansen knew that Ms. Bremsak had filed actions in the past, which is why he felt threatened.

297 Mr. Jansen testified that he did not believe that Ms. Ralston’s April 18, 2008 email (Exhibits G-1, Tab J, and R-2, Tab 43, page 514-34) had any influence on the decisions of members of the Vancouver Branch Executive to file the April 2009 harassment complaints and the June 2009 harassment complaint.

c. Re-examination

298 In re-examination, Mr. Jansen testified that, at the April 23, 2008 meeting of the Vancouver Branch Executive, Ms. Bremsak did not ask that the Vancouver Branch Executive make submissions to the Institute’s Board of Directors in support of her request to be a delegate to the 2008 Regional Council meetings.

299 Mr. Jansen stated that he has no knowledge of whether Ms. Bremsak named Vancouver Branch Executive members in the original complaints.

300 Mr. Jansen stated that he was aware that the Harassment Policy contains as follows an obligation to report all harassment incidents:

…

Every individual employee and member has the responsibility to adhere to this policy and to conduct him/her self accordingly. Any employee or member who witnesses harassment taking place in any form at Institute activities must take appropriate steps to end the harassment. The Institute encourages reporting of all incidents of harassment, regardless of who the offender might be.

…

C. Summary of the arguments

301 The parties presented lengthy arguments. Ms. Bremsak’s representative in particular made arguments on April 18 and 19, 2012 that lasted more than 1.5 days. The Institute’s closing arguments were somewhat more concise, but still took more than 1 but less than 1.5 days. The Institute provided cogent written arguments comprising 92 pages and supported by three volumes of case law. Ms. Bremsak provided written arguments in rebuttal comprised of 26 pages and supported by additional authorities. As a panel of the PSLRB, my task is not to reproduce all the arguments made. Instead, I have set out my summary of the parties’ main arguments relevant to my decision.

1. For Ms. Bremsak

302 Ms. Bremsak argued that she had to file new complaints with every breach of the Act, as a first complaint covers only a first violation. In her argument, she referred many times to the Policy Related to Members and Complaints to Outside Bodies being illegal and stated that the Institute did not reinstate her following Veillette 2 (indefinite administrative suspension from elected office) and that the Institute was in contempt of the order in Bremsak 2 (original complaints).

a. Non-reinstatement complaint

303 Ms. Bremsak’s main argument was that she was unlawfully suspended from elected offices. The Institute should never have suspended her under the Policy Related to Members and Complaints to Outside Bodies, an illegal policy, and should have revoked her suspension once Veillette 2 (indefinite administrative suspension from elected office) was rendered. The fact that the Institute did not revoke the suspension immediately on the issuance of Veillette 2 (indefinite administrative suspension from elected office) is contempt of an order of a panel of the PSLRB, as Veillette 2 (indefinite administrative suspension from elected office) was enforceable immediately: see Bremsak 13 (appeal of Bremsak 11 (civil contempt charges)). The Institute’s failure to revoke Ms. Bremsak’s suspension from elected offices was grounds for the non-reinstatement complaint. It was a violation of section 188 of the Act.

304 Ms. Bremsak’s emailed the Vancouver Branch Executive on March 22, 2009 to request being appointed a delegate to the 2009 Regional Council meeting (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30). Ms. Bremsak was not appointed because she was suspended under the Policy Related to Members and Complaints to Outside Bodies. Ms. Bremsak maintains that by failing to appoint Ms. Bremsak as a delegate of the Vancouver Branch to the 2009 Regional Council meeting, individual members of the Vancouver Branch Executive facilitated the Institute’s unlawful actions. Therefore the individual members of the Institute breached section 188 of the Act. Ms. Bremsak stated that the fact that the members of the Vancouver Branch Executive were following orders from the Institute’s Board of Directors did not excuse them of their actions in executing or carrying out her suspension from elected offices, which could not have continued without the actions of the Vancouver Branch Executive.

b. Retaliation complaint

305 Ms. Bremsak relied on paragraph 13 of the reply given by the respondents’ counsel to the retaliation complaint (Exhibit R-1, Tab 15, page 61). Paragraph 13 reads as follows: “[a]t all relevant times, the Respondents were acting in accordance with the directions and instructions of the Institute’s Board of Directors.” The harassment of Ms. Bremsak was dictated by the Institute’s Board of Directors. Ms. Ralston’s April 18, 2008 email (Exhibits G-1, Tab J, and R-2, Tab 43, page 514-34) planted a seed of a disruptive nature and instructed the Vancouver Branch Executive on how to isolate Ms. Bremsak to prevent her from participating in the 2008 Regional Council meetings.

306 Ms. Bremsak had never disrupted a meeting in the past. Ms. Bremsak alleges that she and her representative simply informed the Vancouver Branch Executive of Veillette 2 (indefinite administrative suspension from elected office). Before filing a complaint under section 188 of the Act, a party is required to take steps to resolve the issue. The conduct of Ms. Bremsak and her representative was a warning and not a threat. Ms. Bremsak referred to the definitions of warnings and threats in Black’s Law Dictionary (Exhibit R-2, Tab 43, page 514-22). Ms. Bremsak’s communication was a warning, per Black’s Law Dictionary: “… [t]he pointing out of a danger, esp. to one who would not otherwise be aware of it…”

307 The filing of the April 2009 harassment complaints and the June 2009 harassment complaint violated paragraph 188(c) of the Act; as the members of the Vancouver Branch Executive enforced Ms. Bremsak’s suspension from elected offices in a discriminatory manner by failing to determine the facts. Ms. Bremsak stated that the Vancouver Branch Executive members did not inform her that her conduct was unwelcome or unwanted. They violated paragraph 188(e) by discriminating against Ms. Bremsak with respect to her membership in the Institute and by coercing and intimidating her because she had a complaint underway with the PSLRB. In the bigger picture, the Institute intended to find a way to suspend Ms. Bremsak. The fact that Vancouver Branch Executive members might have felt threatened by her conduct does not mean that she should not have had the right to file another complaint under the Act.

308 The April 2009 harassment complaints and the June 2009 harassment complaint were entirely about Ms. Bremsak’s exercise of her membership rights, which were illegally removed by the Institute and by the Vancouver Branch Executive members by her suspension from elected offices. The April 2009 harassment complaints and the June 2009 harassment complaint were filed to prevent Ms. Bremsak from complaining under section 188. The panel of the PSLRB has no choice but to uphold Ms. Bremsak’s complaint because she has a right to make complaints under the Act and because all her complaints revolve around her right to file a complaint under the Act. Mr. Jansen violated paragraph 188(e) of the Act as the filing of his allegations of harassment were clearly intended to intimidate and prevent Ms. Bremsak from filing complaints under the Act. Irrespective of whether the retaliation complaint had any merit, she had the right to file it.

309 Ms. Bremsak’s suspension from elected offices has continued, even after Bremsak 2 (original complaints) was issued. The Institute should have complied immediately with the orders in Veillette 2 (indefinite administrative suspension from elected office) and Bremsak 2 (original complaints).

c. Five-year suspension complaint

310 Ms. Bremsak stated that Mr. Mattern asked her to comment about the statements of others involved in the investigations. She could not comment as she was not given an opportunity to question or challenge anything and could confirm only the truth of her own statements. Mr. Mattern was provided with documents, including Bremsak 2 (original complaints) and paragraph 13 of the Institute’s response to the retaliation complaint and Veillette 2 (indefinite administrative suspension from elected office) confirming the invalidity of the Policy Related to Members and Complaints to Outside Bodies.

311 Mr. Mattern was not an independent investigator; otherwise, he would not have talked with Mr. Gillis about an incident that occurred in the course of the investigations, as evidenced by emails exchanged between them on August 27 and 28, 2009 (Exhibit G-1, Tab G). Mr. Gillis’ email and telephone call with Mr. Mattern call puts Mr. Mattern’s independence in doubt. One has to consider whether their conversation was proper. Further, the fact that Mr. Mattern ignored Bremsak 2 (original complaints) goes to his bias.

312 Mr. Mattern’s investigation reports (Exhibits R-2, Tab 43, pages 464 to 514-52, R-1, Tab 14, pages 42 to 58, R-2, Tab 44, pages 515 to 530-26, and R-2, Tab 45, pages 531 to 534) did not include acts other than those that humiliated, demeaned, embarrassed or degraded the respective Vancouver Branch Executive members. He used the definition of “unwanted or unwelcome” in the Harassment Policy and not the definition of “harassment.” Unwanted or unwelcome behaviour opens up the scope of what can be considered harassment but is not the definition of “harassment” in the Harassment Policy. Although Mr. Mattern was meticulous in his recitation of the information that he collected, the definition he used is not the same as the definition of “harassment” in the Harassment Policy. According to Ms. Bremsak, the proper definition of “harassment” is set out in Black’s Law Dictionary (Exhibit R-2, Tab 43, at page 514-23) as follows: “… [w]ords, conduct, or action (usu. repeated or persistent) that, being directed at a specific person, annoys, alarms, or causes substantial emotional distress in that person and serves no legitimate purpose … [emphasis in the original]”.

313 Ms. Bremsak stated that the context of her communication has to be considered, which is that she was simply attempting to exercise her rights as a member of the Institute after she was illegally suspended from elected offices. A panel of the PSLRB vindicated her in Bremsak 2 (original complaints). Mr. Mattern’s lack of comment on the legitimate purpose of Ms. Bremsak’s communications, which were warnings and attempts to exercise her rights when she was illegally suspended, offends natural justice. The flaw in Mr. Mattern’s investigation reports and analysis reports is that he refused to consider the unlawful nature of the Institute’s actions. Furthermore, Mr. Mattern failed to consider that the Institute had given instructions on how to isolate Ms. Bremsak and that the Vancouver Branch Executive members acted under the instructions of the Institute’s Board of Directors. No legitimate purpose was at the basis of the Vancouver Branch Executive members’ actions. Also, Mr. Mattern did not deal with the issue of the members of the Vancouver Branch Executive concocting complaints.

314 Ms. Bremsak states that the entire process in the 2009 Dispute Resolution Policy violates the principle of natural justice as follows:

• she did not receive adequate notice of her suspension from membership in the Institute;
• the Institute’s Executive Committee had a vested interest in the outcome of the April 2009 harassment complaints and the June 2009 harassment complaint given the charge for civil contempt proceeding in the Federal Court;
• the dispute resolution process was not fair as Ms. Bremsak was not allowed to ask questions, call evidence or be heard; and
• the Institute’s Executive Committee did not take into account all relevant and extenuating circumstances and did not ignore irrelevant considerations.

315 Ms. Bremsak said that she did not receive the investigation findings report for the April 2009 harassment complaints (Exhibit R-2, Tab 43, pages 464 to 514-52) until after the Institute’s Executive Committee had decided to suspend her from membership in the Institute. According to the 2007 Dispute Resolution Policy that was published on the Institute’s website, the Institute’s Executive Committee did not have the legal authority to discipline Ms. Bremsak as no hearing was held to determine her guilt. Mr. Mattern was like a police officer who raised a cause sufficient for the Institute to conduct a hearing into Ms. Bremsak’s conduct. Further, the Executive Committee was in a conflict of interest because its members were named individually in complaints before the PSLRB and each member was in contempt of Bremsak 2 (original complaints) as the Executive Committee had not reinstated Ms. Bremsak into her elected offices. The Institute’s Conflict of Interest Policy (Exhibit G-1, Tab 44, “the Conflict of Interest Policy”) required that, if an elected or appointed representative has “… any personal or pecuniary interest …”, that person must do the following:

• declare the conflict of interest before a matter is considered at a meeting;
• not take part in the discussion of or vote on the matter; and
• not attempt to influence the voting.

The Conflict of Interest Policy further provides the following:

…

The failure of any elected or appointed representative to comply with this policy shall not, of itself, invalidate the decision and subsequent actions in respect of such matter.

…

Failure to comply with this policy may result in the invocation of the Discipline By-Law.

…

316 Ms. Bremsak argued that the Institute should have complied immediately with Bremsak 2 (original complaints). Suspending her from membership in the Institute once the harassment investigations completed was a collateral attack on Bremsak 2 (original complaints), especially if the following are considered: the context of the illegal suspension from elected offices, the failure to reinstate her into her elected offices after Veillette 2 (indefinite administrative suspension from elected office) was issued, the filing of stay applications and appeals about Veillette 2 (indefinite administrative suspension from elected office) and Bremsak 2 (original complaints), and the Federal Court’s finding about the Institute’s contempt of Bremsak 2 (original complaints).

317 Ms. Bremsak did not concede that harassment was proven. The members who filed the April 2009 harassment complaints and the June 2009 harassment complaint did not inform her that her conduct was unwelcome or unwanted, which is an essential part of harassment.

318 Ms. Bremsak argued that her conduct was not unreasonable. There was no need to await the outcome of the decision of a panel of the PSLRB on the original complaints before dealing with the Vancouver Branch Executive. The suspension from elected offices blindsided Ms. Bremsak. The Policy Related to Members and Complaints to Outside Bodies was applied to her retroactively. The terms of her suspension were not made clear to her; she was told that she could run for office but that the term would not be effective until the suspension ceased. She had the right to be a delegate to Institute events because she was an Institute member in good standing. She felt that she had the right to participate to Institute events as a delegate because she was in the process of seeking re-election. She was re-elected, but she could not vote for herself. I note that no evidence was adduced to support this submission. Ms. Bremsak did not agree that she disrupted meetings; she was simply exercising her rights as entitled, as she was suspended under an illegal policy.

319 Ms. Bremsak challenged the individual findings of harassment in Mr. Mattern’s investigation reports (Exhibits R-2, Tab 43, pages 464 to 514-52, R-1, Tab 14, pages 42 to 58, R-2, Tab 44, pages 515 to 530-26, and R-2, Tab 45, pages 531 to 534). As for the April 2009 harassment complaints, a difference arose between the original allegations of harassment and the information communicated to Mr. Mattern. Mr. Mattern found that Vancouver Branch Executive members such as Mr. Kendell were put in unwanted positions. Mr. Kendell felt bullied and intimidated, but that is not part of the definition of “harassment” in the Harassment Policy.

320 Ms. Bremsak stated that Mr. Kendell’s third allegation of harassment was a deliberate continuation of the Institute’s intimidation tactics by Vancouver Branch Executive members, who chose to abide by the Institute’s decision to suspend Ms. Bremsak from elected offices. It was a direct violation of the Act to strip Ms. Bremsak of her legal right to file a complaint under section 188 of the Act.

321 Mr. Kendell’s fourth allegations of harassment was about Ms. Bremsak’s March 22, 2009 email requesting the Vancouver Branch Executive to appoint her a delegate to the 2009 Regional Council meeting (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30). Ms. Bremsak was simply attempting to exercise her rights to become a delegate. Her rights are guaranteed under the Act, and she expressed a warning. The lack of validity of her suspension from elected offices made it a warning.

322 Ms. Bremsak argued that Mr. Kendell’s allegations of harassment did not meet the definition of “harassment” in the Harassment Policy as they did not document a pattern of repetitive unwanted behaviour.

323 Ms. Bremsak argued in response to Mr. Peters’ first allegation of harassment about her April 11, 2008 email (Exhibits R-2, Tab 43, page 505, and R-2, Tab 43, page 514-36) that her email was simply a call to arms and a notification to her Institute colleagues about an illegal policy. Mr. Peters found the email offensive because he did not agree with it. He was offended by Ms. Bremsak’s tone, and he assumed that he was implicated as part of a group that was committing a wrong. Mr. Peters did not refer to it as a threat. If it was harassment, then every action that an individual could take could be considered harassment. Ms. Bremsak was a victim of an illegal act, which she wished to discuss. Real harm was done to her, as found in Bremsak 2 (original complaints). Mr. Mattern found the allegation founded because Ms. Bremsak spoke to the membership about how she had been wronged.

324 In terms of Mr. Peters’ second allegation of harassment, about Ms. Bremsak’s April 24, 2008 (16:12) email entitled “SHAME ON YOU!” (Exhibits R-1, Tab 18, page 116, R-2, Tab 40, page 371, and R-2, Tab 43, page 514-47), the email was sent after an incident in which Ms. Bremsak thought that she would appear in front of friends, to rally them. She was anxious and under stress and felt betrayed. She denied that this was a threat. It should be viewed as a direct human emotional reaction when she was wronged by the Institute’s Board of Directors, her colleagues and her friends. In hindsight, it is clear how wrong they all were because the Federal Court found the Institute in contempt of Bremsak 2 (original complaints). The email was not an attack on Mr. Peters. Nothing in the email refers to him. There is no direct evidence of her threatening Mr. Peters.

325 With respect to Mr. Ansari’s allegations of harassment, there was no threat in Ms. Bremsak asking him to nominate her to be a delegate to the 2009 Regional Council meeting. Mr. Mattern made an insinuation when he suggested that Ms. Bremsak’s request was a threat, in that Mr. Ansari had to nominate her, or Mr. Ansari would be named in a complaint. At that point, Mr. Ansari had not been named in any complaints made with the PSLRB. A telephone call that Mr. Ansari had with Ms. Bremsak that he felt was unwelcome did not constitute harassment; otherwise, any unwelcome call would constitute harassment.

326 As for Ms. Kerr’s first allegation of harassment, Ms. Bremsak wanted Ms. Kerr to do the right thing and did not want to name Ms. Kerr in a complaint with the PSLRB. It was a warning; there were no witnesses. Mr. Mattern found that it was harassment because Ms. Kerr was put in an unwanted or unwelcome position. However, that is not harassment.

327 Ms. Kerr’s email of April 24, 2008 to the Institute’s Board of Directors (Exhibit R-2, Tab 43, page 514-50) about Ms. Bremsak’s April 24, 2008 (16:12) email entitled “SHAME ON YOU!” (Exhibits R-1, Tab 18, page 116, R-2, Tab 40, page 371, and R-2, Tab 43, page 514-47) was hidden from Ms. Bremsak. Ms. Bremsak’s comments were made democratically. Because it was a one-off email, written with the justification that Ms. Bremsak was upset about her illegal suspension from elected offices, Mr. Mattern should not have considered it harassment.

328 Ms. Bremsak’s arguments with respect to the allegations of harassment made about Ms. Bremsak’s March 22, 2009 email requesting the Vancouver Branch Executive to appoint her a delegate to the 2009 Regional Council meeting (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30) are similar to the arguments made about Ms. Bremsak’s April 24, 2008 (16:12) email entitled “SHAME ON YOU!” (Exhibits R-1, Tab 18, page 116, R-2, Tab 40, page 371, and R-2, Tab 43, page 514-47). Ms. Bremsak’s greatest concern was to attend the 2009 Regional Council meeting because the validity of the Policy Related to Members and Complaints to Outside Bodies, under which she was suspended from elected offices, was to be discussed at that meeting. The Policy Related to Members and Complaints to Outside Bodies directly affected her, and she wanted to speak to it as it was against the law. In her mind, it was a fundamental right of membership to participate, and she was within her rights to convey her message that the Policy Related to Members and Complaints to Outside Bodies was unlawful to the membership. That email enforced her rights as a member. The other information, about a complaint, was in the email because, in the PSLRB’s complaint form, Ms. Bremsak must set out the steps taken to resolve a dispute. The respondents violated the Act, by not putting her name forward as a delegate.

329 Mr. Jansen said that all he wanted was Ms. Bremsak’s silence. So, were her actions harassment, or was calling her actions thus simply a way of silencing the victim of the Institute’s unlawful acts?

330 With respect to the June 3, 2009 incident at the Old Bavaria Haus Restaurant, Ms. Bremsak and her representative did not disrupta meeting as their intervention occurred before any meeting took place. Ms. Bremsak did nothing. A panel of the PSLRB found the Policy Related to Members and Complaints to Outside Bodies illegal in Veillette 2 (indefinite administrative suspension from elected office), and Ms. Bremsak wished to communicate that to the Vancouver Branch Executive so that they could not claim ignorance of that finding. Veillette 2 (indefinite administrative suspension from elected office) was presented to the Vancouver Branch Executive, and Ms. Bremsak’s representative left the restaurant. The recording and transcript (Exhibit R-2, Tab 33) show that nothing untoward happened during his presentation.

331 Ms. Bremsak stated that, were harassment proved (which she did not concede but denied), the five-year suspension from membership in the Institute was not proportional to her conduct. If the punishment is not proportional to the conduct, then the Institute acted in a discriminatory manner when applying the Harassment Policy and the Institute’s Discipline Policy. The suspension was imposed because she was prepared to exercise her legitimate membership rights. There were not 16 or 19 incidents, contrary to the April 2009 harassment complaints, but only 3 or 4 incidents involving 5 people.

332 To determine whether the five-year suspension from membership in the Institute was proportional to Ms. Bremsak’s conduct, I must examine the history of her conduct or the By-Laws. In the 2007 By-Laws, the available punishment ranges from a suspension of less than 180 days or of more than 180 days or expulsion. Under that scheme, Ms. Bremsak received the second highest form of punishment. It is important to consider her actions, which included the following:

• she filed the second original complaint with the PSLRB, which she won;
• the Institute failed to comply with Bremsak 2 (original complaints), and the Federal Court found it in contempt; and
• the Institute misled members of the Vancouver Branch Executive with respect to the need to comply with Veillette 2 (indefinite administrative suspension from elected office).

333 Ms. Bremsak attempted to explain why she did not appeal to the Institute’s Board of Directors the decision of the Institute’s Executive Committee to suspend her from membership in the Institute. Her representative stated that Bremsak 3 (denial of stay of Bremsak 2 (original complaints) pending judicial review of both Veillette 2 (indefinite administrative suspension from elected office) and Bremsak 2 (original complaints)) dismissed the Institute’s stay applications on October 28, 2009. The Executive Committee’s decision on the April 2009 harassment complaints and the June 2009 harassment complaint was sent to Ms. Bremsak’s personal email account, but she did not access it as she had a work account. Her representative stated that he was trying to locate the information to put together an appeal to the Board of Directors. Ms. Bremsak’s representative found on the Institute website that the Executive Committee did not have the authority to suspend Ms. Bremsak from membership in the Institute; only the Board of Directors had that authority. Ms. Bremsak’s representative had sent a letter with 10 issues to Mr. Grenville-Wood. In it, Ms. Bremsak’s representative raised issues about how an appeal of the decision of the Executive Committee would put members of the Board of Directors in a conflict of interest since a finding of civil contempt was being sought in the Federal Court against members of the Board of Directors who would be making the decision on appeal about the April 2009 harassment complaints and the June 2009 harassment complaint. Ms. Bremsak’s representative stated that Mr. Grenville-Wood did not reply before the last day of the appeal period, which made the appeal impossible. The wrong dispute resolution policy was posted on the Institute’s website, which made filing an appeal impossible. Ms. Bremsak did not ask for an extension of time to file an appeal, but the Institute was not replying to correspondence. Ms. Bremsak’s representative stated that appealing is pointless if the process is unknown. Again, I note that Ms. Bremsak’s representative was not a witness in these matters. His statements concerning his reasons or Ms. Bremsak’s for not filing an appeal is an argument made during closing submissions and is not evidence before me.

334 Ms. Bremsak’s representative stated that the entire Institute’s Board of Directors was in contempt of Bremsak 2 (original complaints) and therefore in a conflict of interest. Ms. Bremsak’s representative said that members the Institute’s Executive Committee made no attempt to declare any conflict of a pecuniary or personal interest before suspending her from membership in the Institute. Ms. Bremsak’s representative stated that Ms. Bremsak should have had access to an appeal hearing before a group of her peers with questioning and cross-examination because of the conflict of interest of the Board of Directors. Ms. Bremsak’s point is that a special appeal process should have been put together given that the Board of Directors was in a conflict of interest situation.

335 Ms. Bremsak relied on an Internet definition of natural justice. She also relied on Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, at page 661, which is about the notion that the denial of a right to a fair hearing renders a decision invalid. Without a hearing before the Institute’s Executive Committee, a number of questions were not addressed, such as the proportionality of the punishment. There was no opportunity to cross-examine witnesses. Issues arose about Ms. Bremsak’s right to file a complaint under section 188 of the Act, which were not considered. Mr. Mattern’s investigation reports (Exhibits R-2, Tab 43, pages 464 to 514-52, R-1, Tab 14, pages 42 to 58, R-2, Tab 44, page 515 to 530-26, and R-2, Tab 45, pages 531 to 534) could not be challenged. The Institute engaged in an illegal act, which led to the harassment. Serious questions could have been addressed by a hearing.

336 The five-year suspension complaint must be viewed within the scope of the following:

• the Institute’s Board of Directors retroactively imposed an illegal policy against Ms. Bremsak to suspend her from elected offices, causing her real harm;
• even when the Institute was provided with information about its wrongdoing, it did not attempt to correct the situation and continued to enforce the Policy Related to Members and Complaints to Outside Bodies; and
• by removing Ms. Bremsak from delegate status and not allowing her to speak to the issue of the Policy Related to Members and Complaints to Outside Bodies at the 2009 Regional Council meeting, she was deprived of her right as an Institute member.

A good summary of Mr. Bremsak’s concerns about the five-year suspension is provided as follows inBremsak 11 (civil contempt charges), at para 82:

…

1. the fact the suspension from membership was to take place immediately;
2. the fact that no hearing or submissions were received by the Executive Committee before the sanction was imposed;
3. the question whether the Executive Committee had the authority to suspend the membership of a member rather than the Board of Director’s has been raised;
4. the substantive question as to the scope of the concept of harassment in the particular context of the facts alleged is in issue;
5. the proportionality of the sanction when it is considered that the allegations which were well founded, were similar and made by five members of the Vancouver Branch is a question mark;
6. the fact the applicant was not able to comment on the final investigation reports before decision was made is an issue.

…

[Sic throughout]

[Emphasis in the original]

337 Section 188 of the Act is designed to ensure that an individual can come forward when his or her rights are violated, without fear of persecution. Filing the April 2009 harassment complaints and the June 2009 harassment complaint was a well-thought-out strategy by the respondents. The decision of the Institute’s Executive Committee that harassment occurred was a collateral attack on Bremsak 2 (original complaints) so that the Institute would not have to reinstate Ms. Bremsak. The Institute did not follow the proper course of action, which was to ask the Federal Court to stay Ms. Bremsak’s reinstatement if a conflict erupted between the ordinary operation of the By-Laws and Bremsak 2 (original complaints): see Bremsak 11 (civil contempt charges), at para 81. The Institute failed to establish a lawful excuse for failing to reinstate Ms. Bremsak into her elected offices.

d. Applications for consent to prosecute

338 Ms. Bremsak relied on United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union (United Steelworkers), Local 1-1000 v. 1229026 Ontario Inc., [2006] OLRB Rep. May/June 307, and International Union, United Automobile, Aerospace and Agriculture Implement Workers of America v. Fleck Manufacturing Company, [1978] OLRB Rep. July 615.

339 Panels of the PSLRB have seldom granted applications for consent to prosecute. To grant a consent to prosecute, the following two conditions have to be met:

• a flagrant violation of the Act must be made out prima facie such that a panel of the PSLRB has no other choice but to take action; and
• the panel of the PSLRB must then consider whether a legitimate labour-relations purpose justify consenting to prosecution; one does in this case, as PSRLB orders ought to be obeyed.

By consenting to prosecution, a panel of the PSLRB does not make any findings against the person against whom prosecution is intended; that is the exclusive function of the courts.

340 In this case, the prima facie requirement is met by the charge of civil contempt in the Federal Court, as Ms. Bremsak established that the respondents contemptuously failed to follow Bremsak 2 (original complaints). Bremsak 2 (original complaints) has been blatantly disregarded for more than two-and-a-half years. This is a case of a big employee organization, with superior resources, standing against an individual, and the case has been dragged out to try to wear Ms. Bremsak down. The purpose of prosecuting the respondents is to prevent this situation from happening again so that an individual cannot be “snowed under” by a party with superior resources. It is important to penalize the respondents and to deter others from repeating their actions.

341 The non-reinstatement complaint deals with the suspension from elected offices disentitling Ms. Bremsak from being a delegate at Institute events. The retaliation and five-year suspension complaints deal with harassment. Each complaint has been made on a prima facie case.

2. For the Institute

342 I note that the individually named respondents were not represented by separate counsel and that they did not make separate submissions.

a. Non-reinstatement complaint

343 The Institute denied that the complaint had any basis and submitted that it should be dismissed. It was not obliged to reinstate Ms. Bremsak into her elected offices after Veillette 2 (indefinite administrative suspension from elected office) was issued. The concept of issue estoppel does not apply as Ms. Bremsak was not a party to Veillette 2 (indefinite administrative suspension from elected office), and the issues were different: see Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, at para 25. Further, the doctrine of stare decisis (letting a decision stand) does not mandate that a panel of the PSRLB is bound by the decision of another panel: see Wry et al. v. Treasury Board (Correctional Service of Canada), 2006 PSLRB 127; United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local Union No. 488 v. Firestone Energy Corporation (2009), 165 C.L.R.B.R. (2d) 1 (Alta. L.R.B) (confirmed in Firestone Energy Corporation and Construction Workers Union CLAC), Local No. 63 v. International Brotherhood of Electrical Workers, Local Union 2 (2011), 191 C.L.R.B.R. (2d) 87 (Alta. L.R.B)); and Labourers’ International Union of North America v. United Brotherhood of Carpenters and Joiners of America, Local 18, [1995] O.J. No. 706 (QL) (Div. Ct.). In fact, Ms. Bremsak did not consider herself bound by Veillette 2 (indefinite administrative suspension from elected office) as she argued that she could be reinstated despite the result in Veillette 2 (indefinite administrative suspension from elected office). The Institute also wished to argue the impact of Veillette 2 (indefinite administrative suspension from elected office). The evidence shows that the Institute sought a stay of the PSLRB proceedings in Veillette 2 (indefinite administrative suspension from elected office) pending judicial review of Veillette 1 (2-year disciplinary suspension from elected office) and a judicial review of Veillette 2 (indefinite administrative suspension from elected office): see Veillette 3 (denial of stay of execution of Veillette 1 (2-year disciplinary suspension from elected office) pending judicial review).

344 The Institute did not penalize or discipline Ms. Bremsak following Veillette 2 (indefinite administrative suspension from elected office). A decision to maintain a suspension from elected offices cannot be considered a penalty, as a penalty is “… a sanction established or imposed by statute or authority to suppress a prohibited act”: see Veillette 2 (indefinite administrative suspension from elected office), at para 32.

345 In reply to Ms. Bremsak’s argument that the failure to immediately reinstate her into her elected offices following Veillette 2 (indefinite administrative suspension from elected office) violated paragraphs 188(b) and (e) of the Act, the facts clearly show that she was suspended from her elected and appointed positions and not from membership in the Institute. Paragraph 188(b) applies only when a person is expelled or suspended from membership in an employee organization. A panel of the PSLRB confirmed as much at paragraph 103 of Bremsak 2 (original complaints), as follows:

[103] In this case, the complainant’s membership in the bargaining agent has not been affected by the operation of the policy about applications to outside bodies. Indeed, the policy itself and the subsequent statements of the bargaining agent confirmed that the membership of the complainant was not affected by the operation of the policy. For example, she was and is still able to attend and speak at membership meetings. Therefore, paragraph 188(b) of the Act, the provision that prohibits the expelling or suspending of unemployed membership in an employee organisation in a discriminatory manner, has no application here.

b. Retaliation complaint

346 The decision to appoint to Institute events delegates other than Ms. Bremsak did not amount to a penalty or discriminatory treatment. There is no merit to any of Ms. Bremsak’s allegations that the Vancouver Branch Executive enforced her suspension from elected offices. The evidence shows that its members complied with the Institute’s direction. Ms. Roy, one of the lawyers who drafted the Institute’s reply, testified that the Institute advised the Vancouver Branch Executive that Ms. Bremsak was suspended from elected offices and that she could not be a delegate at the 2008 Regional Council meetings. Had members of the Vancouver Branch Executive not complied, they could have been subject to discipline under the Policy Related to Members and Complaints to Outside Bodies.

347 After Ms. Bremsak’s March 22, 2009 email requesting the Vancouver Branch Executive to appoint her a delegate to the 2009 Regional Council meeting (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30), the Vancouver Branch Executive members met and decided to file the April 2009 harassment complaints to stop Ms. Bremsak’s harassing conduct. After the June 3, 2009 incident at the Old Bavaria Haus Restaurant, members of the Vancouver Branch Executive filed the June 2009 harassment complaint. Each member of the Vancouver Branch Executive made allegations of harassment based on Ms. Bremsak’s conduct. The April 2009 harassment complaints and June 2009 harassment complaint were not motivated by Ms. Bremsak’s earlier complaints with the PSLRB. All the members testified that they genuinely believed that Ms. Bremsak had harassed them. The April 2009 harassment complaints and the June 2009 harassment complaint were not frivolous. Mr. Mattern found that most allegations of harassment were substantiated.

348 The April 2009 harassment complaints and June 2009 harassment complaint were not a penalty as they simply triggered investigations, in which Ms. Bremsak as a party named in the complaint had a right to participate: see Dumont v. Canada Employment and Immigration Union, 2010 PSLRB 37, at para 16; Veillette 2 (indefinite administrative suspension from elected office),at para 32; Linke v. Island Tug & Barge Limited (1997), 104 di 1 (C.L.R.B.), and Gordon v. Health Sciences Association of British Columbia, [2002] B.C.L.R.B.D. No. 89 (QL).

349 When the April 2009 harassment complaints and the June 2009 harassment complaint were filed, the members of the Vancouver Branch Executive were acting in their own personal capacities and not as official Institute representatives. Ms. Bremsak did not prove an essential element of liability under paragraphs 188(b) and (c) of the Act as the members were not officers or representatives or acting on behalf of the Institute.

350 The Institute did not encourage any of the Vancouver Branch Executive members to file the April 2009 harassment complaints or the June 2009 harassment complaint against Ms. Bremsak. Although Ms. Bremsak alleged that the Institute orchestrated the April 2009 harassment complaints and the June 2009 harassment complaint, the evidence shows otherwise. Everyone who testified stated that they made their own decisions to raise allegations of harassment based on Ms. Bremsak’s conduct. Both Mr. Gillis and Ms. Roy testified that they did not instruct or direct the Vancouver Branch Executive members to file the April 2009 harassment complaints or the June 2009 harassment complaint. The Institute did not “trump up fake charges of harassment,” as Ms. Bremsak alleged.

351 Under the 2009 Dispute Resolution Policy, the Institute’s Executive Committee has the responsibility to determine whether allegations of harassment made against its members under the Harassment Policy were founded and to impose discipline. It appointed Mr. Mattern to investigate the April 2009 harassment complaints. Later, it appointed Mr. Mattern to investigate the June 2009 harassment complaint. Ms. Bremsak failed to participate fully in Mr. Mattern’s investigations. She was given an opportunity to comment on the facts in the investigation reports. She was made aware of an opportunity to appeal her suspension from membership in the Institute; she did not.

352 The individual respondents did not expel or suspend Ms. Bremsak from membership or deny her membership in the Institute. They did not engage in discriminatory action by filing the April 2009 harassment complaints and the June 2009 harassment complaint. Ms. Bremsak has been suspended from membership in the Institute by the Institute. Only the Institute can impose a penalty following a finding of harassment. The Vancouver Branch Executive members had no power to expel or suspend Ms. Bremsak from membership or to deny her membership in the Institute. Nor did they have the power to impose disciplinary action or a penalty. Therefore, the complaint must be dismissed: see Bremsak 8 (complaint against Mr. Mattern and application for consent to prosecute), at para 51 to 54.

c. Five-year suspension complaint

353 The Institute submitted that the evidence clearly shows that Ms. Bremsak engaged in a pattern of harassing conduct between the date of her suspension from elected offices on April 9, 2008 (Exhibit R-1, Tab 19, page 126) and the June 3, 2009 meeting at the Old Bavaria Haus Restaurant. She largely uncontested that pattern, which includes the following incidents:

• a telephone conversation on April 11, 2008 between Ms. Bremsak, Ms. Kerr and Mr. Kendell in which Ms. Bremsak stated that Ms. Kerr and Mr. Kendell would become accomplices of the Institute’s Board of Directors, that they would have an imminent problem if the Policy Related to Members and Complaints to Outside Bodies were followed and that they should disregard the Board of Directors’ decision to suspend her from elected offices;
• Ms. Bremsak’s April 24, 2008 (16:12) email entitled “SHAME ON YOU!” (Exhibits R-1, Tab 18, page 116, R-2, Tab 40, page 371, and R-2, Tab 43, page 514-47);
• Ms. Bremsak’s March 22, 2009 email requesting the Vancouver Branch Executive to appoint her a delegate to the 2009 Regional Council meeting (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30), indicating that, were Ms. Bremsak not appointed as a delegate, she would have no choice but to file a new complaint with the PSLRB in which she would name individual Vancouver Branch Executive members who could not prove that they supported her or who voted against her delegate status; and
• a March 2009 conversation initiated by Ms. Bremsak to Mr. Ansari (Exhibit R-1, Tab 28, page 152) in which she threatened to name him in a complaint with the PSLRB if he did not nominate her as a delegate to the 2009 Regional Council meeting.

354 Ms. Bremsak acknowledged in cross-examination that she knew that the decision to suspend her from elected offices and to deny her delegate status came from the Institute’s Board of Directors and that the Vancouver Branch Executive had no authority to reverse her suspension. That was confirmed by the evidence of all the Vancouver Branch Executive respondents, as well as Mr. Gillis and Ms. Roy.

355 According to Mr. Gillis, the Vancouver Branch is one of 350 constituent and subordinate bodies of the Institute.

356 The April 2009 harassment complaints and the June 2009 harassment complaint were investigated by an independent investigator. Mr. Mattern’s mandate was confined to investigating the facts; he was to not provide any penalty recommendations. Mr. Mattern conducted thorough investigations and met with Ms. Bremsak for more than 14 hours on June 16 and 17, 2009 about the April 2009 harassment complaints. She received her salary for the interview time. Her representative was present, and she signed four interview statements.

357 Ms. Bremsak did not participate in any interviews for the June 2009 harassment complaint — the details of the June 3, 2009 meeting at the Old Bavaria Haus Restaurant were set out earlier in this decision and were also recorded and transcribed (Exhibit R-2, Tab 33). It is clear that Ms. Bremsak’s representative spoke on behalf of both of him and Ms. Bremsak and that everything occurred in her presence. Her representative was asked to leave the restaurant and was informed that his conduct constituted blackmail. In essence, he threatened a quasi-criminal prosecution under the Act. The emails between the parties show that Ms. Bremsak’s representative cancelled the scheduled meeting between Mr. Mattern and Ms. Bremsak about the June 2009 harassment complaint after Mr. Mattern advised her that he would complete his investigation report if she did not participate.

358 Mr. Mattern prepared draft investigation reports about the April 2009 harassment complaints (Exhibit R-2, Tab 40, pages 324 to 390) and the June 2009 harassment complaint, (Exhibit R-2, Tab 41, pages 391 to 461), and Ms. Bremsak was provided with an opportunity to comment on the facts. She took that opportunity.

359 Mr. Mattern finalized and submitted to the Institute his investigation finding report (Exhibit R-2, Tab 43, pages 464 to 514-52) and investigation analysis report (Exhibit R-1, Tab 14, pages 42 to 58) for the April 2009 harassment complaints. Mr. Mattern found that 12 out of the 15 allegations of harassment were founded and that Ms. Bremsak’s conduct caused the Vancouver Branch Executive members to feel bullied, intimidated and threatened, which fell within the definition of “harassment” in the Harassment Policy. He noted that proceedings arising from the enforcement of Bremsak 2 (original complaints) are not relevant to the determination of the April 2009 harassment complaints.

360 Mr. Mattern finalized and submitted to the Institute his investigation finding report (Exhibit R-2, Tab 44, pages 515 to 530-26) and investigation analysis report (Exhibit R-2, Tab 45, pages 531 to 534) for the June 2009 harassment complaint. With respect to the June 3, 2009 incident at the Old Bavaria Haus Restaurant, Mr. Mattern determined that the conduct of Ms. Bremsak’s representative was completely inappropriate, threatening and offensive, and therefore, harassment. Mr. Mattern determined that Ms. Bremsak was present and that the meeting disruption was planned and orchestrated. Mr. Mattern left it to the Institute to determine whether the Harassment Policy and the 2009 Dispute Resolution Policy applied to Ms. Bremsak’s representative as her representative was not a member or an employee of the Institute.

361 Ms. Bremsak behaved unreasonably. She advocated a form of anarchy in which Vancouver Branch Executive members had to subject themselves to the potential for discipline from the Institute to avoid being named in a complaint with the PSLRB. She did so while knowing that it was possible that her position on the Policy Related to Members and Complaints to Outside Bodies could have been wrong, as a panel of the PSLRB had not yet ruled on her second original complaint and had already denied her application for interim relief in Bremsak 1 (denial of interim relief pending a decision on the first original complaint).

362 The Institute stated as following at paragraph 113 of its written argument:

Ms. Bremsak had been a union steward for some time and testified on cross-examination that she was well aware of the obey now, grieve later concept in the context of labour relations. She agreed that this concept applied unless irreparable harm could be established, and could not on cross-examination describe any irreparable harm that may have resulted had she simply “obeyed” the Institute’s decision temporarily suspending her, and “grieved” that decision by filing a complaint with the Board. For Ms. Bremsak to expect the Vancouver Branch Executive to ignore binding Institute decisions and directions on her say so, and by doing so subject themselves to potential discipline, was both irresponsible and abusive. Ms. Bremsak’s insulting, demeaning and degrading behaviour in threatening to name Vancouver Branch Executive members as respondents to a labour board complaint challenging her suspension or ignore the Institute’s direction not to appoint her as a delegate, falls squarely within the Institute’s definition of harassment, as did the unfounded insults helped [sic] on Ms. Kerr by Ms. Bremsak in her SHAME ON YOU email.

363 As Mr. Gillis testified, it would be ridiculous to think that findings of bullying, threats and intimidation were not harassment, as Ms. Bremsak argued, simply because those specific words are not used in the Harassment Policy. Furthermore, that policy is based on an objective test of what a reasonable person would consider harassment. The Institute could have reasonably concluded that Ms. Bremsak engaged in bullying, intimidation and threats and that a reasonable person could have viewed her conduct as humiliating, insulting, demeaning, embarrassing or degrading the respondents. In the alternative, the Institute argued that, even though Mr. Mattern did not consider whether the Vancouver Branch Executive members were humiliated, insulted or degraded by Ms. Bremsak’s conduct, they testified to as much at the hearing of these matters, and it was up to the Institute’s Executive Committee to determine whether they had been treated that way.

364 The Institute considered that Ms. Bremsak was suspended from elected offices under the Policy Related to Members and Complaints to Outside Bodies and that she was prohibited from being a delegate to Institute events. She had no opportunity to influence the Institute’s decision making while her disputes with the Institute remained unresolved.

365 If members of the Institute ignore the decisions of the majority, anarchy results: see Latrémouille v. Union des Artistes (1983), 50 di 197 (C.L.R.B.).

366 Mr. Gillis testified about how the Institute’s Executive Committee decided to suspend Ms. Bremsak from membership in the Institute. It thought that suspending Ms. Bremsak from Institute membership for five years was appropriate in light of the April 2009 harassment complaints. No additional suspension was imposed to Ms. Bremsak in light of the June 2009 harassment complaint.

367 The Institute properly followed the policy in effect at the relevant time, the 2009 Dispute Resolution Policy. At the time of Ms. Bremsak’s suspension, By-Law 24.1 stated the following:

BY-LAW 24 DISCIPLINE

24.1 Except as provided in By-Law 24.1.1, any member may be suspended or expelled from membership in the Institute, removed from office where applicable or otherwise disciplined in accordance with the Institute’s Dispute Resolution and Discipline Policy, for conduct which in any way adversely affects the interests or reputation, or restricts the activities of the Institute. AGM 2008 (e)

[Emphasis in the original]

I note that Ms. Bremsak provided an older version of By-Law 24 Discipline (Exhibit G-1, Tab 3) and older versions of the dispute resolution policy (Exhibit G-1, Tabs 7 to 9). However, those policies were not in effect at the relevant time. They had been modernized, streamlined and the 2009 Dispute Resolution Policy had been approved by the Institute’s Board of Directors.

368 On April 9, 2009 (Exhibit R-3, Tab 49, page 540) and June 11, 2009, Ms. Bremsak received a copy of the 2009 Dispute Resolution Policy during the course of the harassment investigations. She testified that she read it at some point. Her representative did not testify. Mr. Grenville-Wood also referred to that policy in letters to Ms. Bremsak on June 29 (Exhibit R-3, Tab 52, page 561) and July 15, 2009 (Exhibit R-3, Tab 52, page 562) and indicated that copies had been provided to her and that more could be provided at her request.

369 Ms. Bremsak argued that she relied on the 2007 Dispute Resolution Policy, which indicates that the Institute’s Board of Directors was empowered to make suspension decisions, rather than the Institute’s Executive Committee. When Ms. Roy became aware on or about November 3, 2009 that the old policy was still posted on the Institute’s website, Ms. Roy took steps to have it removed (Exhibit R-3, Tab 69, page 672). In any event, the Institute’s policies in force, not those on its website, are in effect.

370 The Institute’s Executive Committee took into account all relevant considerations when it considered whether the allegations of harassment against Ms. Bremsak were founded and determined the appropriate penalty. The Executive Committee did not consider the fact that she had filed complaints under section 188 of the Act against the Institute and its members or Bremsak 2 (original complaints), as they were not relevant.

371 Ms. Bremsak was informed of her right to appeal the decision of the Institute’s Executive Committee to the Institute’s Board of Directors on October 20, 2009 in the suspension letter. Rather than exercising that right, she filed the five-year suspension complaint.

372 In the five-year suspension complaint Ms. Bremsak alleged that the five-year suspension from membership in the Institute issued on October 15, 2009, violated paragraphs 188(b), (c), (d) and (e) of the Act. She alleged the following:

• the Institute cannot rely on the 2009 Dispute Resolution Policy;
• the Institute’s Executive Committee had no authority to suspend her from membership in the Institute;
• the Institute’s Executive Committee was in a conflict of interest;
• Ms. Bremsak was denied natural justice, as no hearing was held;
• Ms. Bremsak did not harass the respondents; and
• the Institute “… trumped up fake charges of harassment that do not meet the definition of harassment according to the PIPSC Harassment Policy.”

373 The Institute relied on Bremsak 2 (original complaints), at paragraphs 85 to 87. The principles to be drawn from that decision are the following:

• not every disciplinary action or imposition of a penalty is prohibited;
• no action or penalty must be taken or applied in a discriminatory manner;
• the essence of discrimination is the arbitrariness of its negative impact;
• a panel of the PSLRB must consider the application of the penalty, its manner and its result;
• the essence of the protection under the Act is to prevent illegal, arbitrary or unreasonable barriers;
• Ms. Bremsak has the burden of proof; and
• from paragraph 86, quoting McCarthy v. International Brotherhood of Electrical Workers, Local 625, [1978] 2 C.L.R.B.R. 105 (N.S.L.R.B.):

… the word ‘discriminatory’ in this context means the application of membership rules to distinguish between individuals or groups on grounds that are illegal, arbitrary or unreasonable. A distinction is most clearly illegal where it is based on considerations prohibited by [human rights legislation]; a distinction is arbitrary where it is not based on any general rule, policy or rationale; and a distinction may be said to be unreasonable where, although it is made in accordance with a general rule or policy, the rule or policy itself is one that there is no fair and rational relationship with the decision being made …

374 The fact that Ms. Bremsak disagreed with the result did not make Bremsak 2 (original complaints) discriminatory: see Strike v. Public Service Alliance of Canada, 2010 PSLRB 22, at para 32.

375 Provisions similar to section 188 of the Act exist under the Canada Labour Code, R.S.C. 1985, c. L-2, and the authority under those provisions confirms the very limited role of a panel of the PSLRB in reviewing internal bargaining agent discipline. In Horsley v. Canadian Union of Postal Workers (1991), 84 di 201 (C.L.R.B.) (upheld in Canadian Union of Postal Workers (CUPW) v. Horsley, [1992] F.C.J. No. 474 (QL) (C.A.)), the Canada Labour Relations Board made it clear as follows that its mandate was not to sit in appeal about a bargaining agent’s internal discipline decisions:

…

… Clearly the mischief sought to be caught by these sections is discriminatory abuse of internal disciplinary powers. The Board is not to sit in appeal from decisions made by trade union disciplinary bodies. This was made clear by the Board in Ronald Wheadon et al. (1983), 54 di 134; 5 CLRBR (NS) 192; and 84 CLLC 16,004 (CLRB no. 445) where the Board expressed its view of what its role is in this type of complaint and set out what it expected from trade unions that were responding to complaints under these sections of the Code from their members:

“It should be made very clear that this Board is not an appeal body from internal union discipline. The role of the Board under section 185(g) [now section 95(g)] of the Code is to ensure that discipline standards, which includes the basis for their application, the manner in which they have been applied and the results of their application, are free from discriminatory practices. In performing that task the Board, shall not, as stated previously, apply a standard that would negate the informality provided for in the constitutions of some trade unions. What the Board does expect though, are realistic, human and plausible explanations from trade unions for their conduct.”

…

[Emphasis in the original]

The Institute also relied on Abbott v. International Longshoremen’s Association, Local 1953 (1977), 26 di 543 (C.L.R.B.), Horsley, and Mangatal v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) (1997), 105 di 1 (C.L.R.B.), at para 19.

376 In Durham (Regional Municipality) v. Canadian Union of Public Employees, Local 1764, [1994] O.L.A.A. No. 304 (QL), an arbitrator considered whether a threat by one employee to sue another could be considered harassment. The arbitrator found that an attempt to coerce someone to withdraw a harassment complaint merited some discipline and stated as follows:

…

I view the letter from the grievor’s lawyer to Ms. Mlynek as an inappropriate attempt on the part of the grievor to force Ms. Mlynek, by way of a threat of being sued, to withdraw her complaint about his conduct. Employees are obviously entitled to use the civil courts to enforce their real or perceived legal rights. It was not appropriate, however, for the grievor to use the threat of a legal suit to attempt to coerce Ms. Mlynek into withdrawing a legitimate complaint relating to sexual harassment…

…

377 Mr. Mattern concluded that the Vancouver Branch Executive members had suffered harassment from Ms. Bremsak. The Institute’s Executive Committee reviewed his findings and found that Ms. Bremsak’s conduct met the definition of “harassment” in the Harassment Policy. That conclusion was not arbitrary or unreasonable, and the panel of the PSLRB should not interfere with it.

378 Ms. Bremsak’s representative threatened quasi-criminal convictions and fines during the June 3, 2009 incident at the Old Bavaria Haus Restaurant. Threatening quasi-criminal proceedings to secure a civil advantage violates public policy. It is tantamount to extortion: see R. v. Cox, [1992] A.J. No. 1303 (QL) (Q.B.), and Willets v. Colalillo, 2007 CanLII 51174 (Ont. Sup. Ct.).

379 The Institute also relied on Canadian Bar Association, Code of Professional Conduct, Chapter III (Advising Clients), Commentary 9 (Threatening Criminal or Disciplinary Proceedings), which reads as follows:

Threatening Criminal or Disciplinary Proceedings

9. Apart from the substantive law on the subject, it is improper for the lawyer to advise, threaten or bring a criminal, quasi-criminal or disciplinary proceeding in order to secure some civil advantage for the client, or to advise, seek or procure the withdrawal of such a proceeding in consideration of the payment of money, or transfer of property, to or for the benefit of the client.

[Footnote omitted]

I pause to highlight that Ms. Bremsak’s representative is not a lawyer and is not subject to the Code of Professional Conduct; however, the conduct is one which would probably have attracted professional consequences if he were a lawyer, as it was clearly improper.

380 The conduct at issue clearly falls within the definition of “harassment”. The Institute relied on Carbin v. International Association of Machinists and Aerospace Workers (1984), 59 di 109 (C.L.R.B.), and argued as follows at paragraph 161 of its written argument:

In summary, there was nothing “illegal, arbitrary or unreasonable”: about (i) the initiation of the disciplinary process following numerous complaints of harassment against Ms. Bremsak; (ii) the disciplinary process itself; and (ii) [sic] the result. The Institute has provided “realistic, human and plausible explanations” in support of its decision to suspend Ms. Bremsak for five years. Ms. Bremsak was not singled out for special treatment. Taking into account all of the circumstances, there is nothing before the PSLRB that should cause it to intervene in what is essentially an internal trade union matter.

381 Ms. Bremsak did not demonstrate any discriminatory conduct against her by the Institute. Demonstrating a breach of natural justice is not enough; natural justice breaches amounting to discriminatory conduct under the Act must be shown: see Ernst v. Federal Government Dockyard Trades and Labour Council (East), 2007 NSSC 82, at para 15; Mangatal; and Saunders v. Canadian Union of Postal Workers, Calgary Local (1988), 74 di 165 (C.L.R.B.).

382 In British Columbia, the Labour Relations Code, R.S.B.C. 1996, c. 244, s. 10, provides a right to natural justice in disputes about matters of the constitution of, membership in and discipline by a trade union. In Alberta, under the Labour Relations Code, R.S.A. 2000, c. L-1, s. 26, in expulsion, suspension and disciplinary cases, an express right is provided to a full and fair hearing, including the right to be represented by counsel. However, the Act has no express requirement that a bargaining agent’s disciplinary process be carried out in accordance with the principles of natural justice. That strongly suggests that its members retain their right to bring to court an allegation of a violation of the Institute’s constitution and By-Laws. The Institute relied on Sullivan on the Construction of Statutes, 5th ed. (2008), at page 419, for the principle that, “… when statutes that otherwise are similar use different words or adopt a different approach, this suggests that a different meaning or purpose was intended.” The Institute also relied on Berry v. Pulley, 2002 SCC 40, at para 48, 63 and 64.

383 Ms. Bremsak alleged six breaches of natural justice. However, they were unfounded. In any event, they were not evidence of discrimination and are outside the jurisdiction of a panel of the PSLRB. Ms. Bremsak’s allegations were as follows:

• the Institute failed to follow the 2007 Dispute Resolution Policy, which was posted on the Institute website on the day on which the suspension from membership in the Institute was imposed;
• the Institute failed to apply the 2007 Dispute Resolution Policy, which was applicable at the time of some of the incidents that gave rise to the April 2009 harassment complaints;
• the Institute failed to allow Ms. Bremsak to make representations to the Institute’s Board of Directors, the decision maker of her suspension from membership in the Institute;
• the Institute’s Executive Committee was in a conflict of interest;
• Mr. Mattern ignored relevant information; and
• Mr. Mattern was biased.

384 The Institute argued that the following points were not raised within the five-year suspension complaint and that the panel of the PSLRB ought not to consider them:

• the Institute failed to apply the 2007 Dispute Resolution Policy, which was applicable at the time of some of the incidents that gave rise to the April 2009 harassment complaints ;
• Mr. Mattern ignored relevant information; and
• Mr. Mattern was biased.

385 As for the dispute resolution policy that was applicable at the relevant time, the Institute argued that the investigation process was the same but that the decision maker was different — the Institute’s Board of Directors was mandated to made decisions under the 2007 Dispute Resolution Policy at the time that Ms. Bremsak was suspended from elected offices, while the Institute’s Executive Committee was mandated to made decisions under the 2009 Dispute Resolution Policy at the end of Mr. Mattern’s investigations. Ms. Bremsak was given explicit notice that the 2009 Dispute Resolution Policy applied to the April 2009 harassment complaints and the June 2009 harassment complaint, and there is no support in the evidence that she relied on the older version of the policy that was posted on the Institute’s website. The presence of an older policy on the website was not deliberate, did not prejudice Ms. Bremsak and was inadvertence, not discrimination: see Bremsak 2 (original complaints), at para 79.

386 The appropriate By-Laws were the ones in place at the time of Mr. Mattern’s investigations, which was consistent with the Institute’s practice, as described by Mr. Gillis. The definition of “harassment” has not changed; nor has the Institute’s harassment investigation process. Although before the 2008 repeal of the 2007 Dispute Resolution Policy the Institute’s Board of Directors decided harassment complaints — which were decided by the Institute’s Executive Committee after the 2009 Dispute Resolution Policy was adopted — a panel of the PSLRB ought not to second-guess internal bargaining agent policies and rules where there is no evidence of discrimination: see Bremsak 2 (original complaints), at para 62.

387 The conduct of the investigations did not breach the principles of natural justice as Ms. Bremsak had notice of the April 2009 harassment complaints and the June 2009 harassment complaint, received a copy of the 2009 Dispute Resolution Policy, and received and had the right to comment on the draft investigation reports about the April 2009 harassment complaints (Exhibit R-2, Tab 40, pages 324 to 390) and the June 2009 harassment complaint (Exhibit R-2, Tab 41, pages 391 to 461). The Institute argued that at no point did Ms. Bremsak claim that the investigation process violated the principles of natural justice.

388 Natural justice requires only that Ms. Bremsak know the case to be met and have an opportunity to respond. It does not require that Ms. Bremsak have the opportunity to address the Institute’s Executive Committee in person or in writing or that she have a hearing before the Executive Committee involving the examination and cross-examination of witnesses. She had an opportunity to respond to the allegations of fact in the investigation findings report, and she made comments. She did not have the right to examine or cross-examine witnesses, and that is not a requirement. She was afforded the required procedural protections.

389 Ms. Bremsak submitted that she did not have the opportunity to comment on Mr. Mattern’s draft investigation reports about the April 2009 harassment complaints and the June 2009 harassment complaint (Exhibits R-2, Tab 40, pages 324 to 390, and R-2, Tab 41, pages 391 to 461). It was up to the Institute’s Executive Committee to decide whether the facts met the definition of “harassment” in the Harassment Policy. Ms. Bremsak could have objected to the process but did nothing until the Executive Committee had made its decision to suspend her from membership in the Institute. Disclosing draft investigation reports does not deprive a party of a meaningful opportunity to be heard: see Oleinik v. Canada (Privacy Commissioner), 2011 FC 1266, at para 12.

390 Ms. Bremsak desired a hearing under the 2007 Dispute Resolution Policy. However, that process was repealed at the Institute’s annual general meeting, held on November 14 and 15, 2008 and was replaced with a By-Law that did not require a hearing before a final decision-making body. The By-Laws represent the wishes or desires of the Institute’s membership, which cannot be termed a breach of natural justice.

391 A full hearing is not required for a party to be given adequate notice and an opportunity to be heard: see Veillette 1 (2-year disciplinary suspension from elected office), and Tomko v. Nova Scotia (Labour Relations Board) (1974), 9 N.S.R. (2d) 277 (S.C. (A.D.)). When someone is removed from a steward position, natural justice requires only that that person be informed of the allegations and have an informal opportunity to tell his or her side of the story: see Wilson v. IBPAT Glaziers, Architectural Metal Mechanics and Glassworkers Union, Local 1527, [1997] B.C.L.R.B.D. No. 378 (QL). Not even a panel of the PSLRB has to hold a hearing to decide a case: see section 41 of the Act and Bremsak 8 (complaint against Mr. Mattern and application for consent to prosecute).

392 Ms. Bremsak was given an opportunity to participate in the investigation of the June 2009 harassment complaint but chose not to.

393 Ms. Bremsak suggested that the Institute’s Executive Committee had a conflict of interest, for which no evidence was adduced. Mr. Gillis testified that the Executive Committee was careful not to consider other matters in its decision about the April 2009 harassment complaints and the June 2009 harassment complaint, other than Mr. Mattern’s investigation and analysis reports (Exhibits R-2, Tab 43, pages 464 to 514-52, R-1, Tab 14, pages 42 to 58, R-2, Tab 44, pages 515 to 530-26, and R-2, Tab 45, pages 531 to 534) and the parties’ submissions.

394 The fact that Ms. Bremsak filed complaints before the PSLRB was not sufficient to remove the members of the Institute’s Executive Committee from their obligation to carry out their mandate under the 2009 Dispute Resolution Policy. It is not uncommon that a bargaining agent official on a discipline panel will have an indirect interest in the outcome of a disciplinary proceeding, will have knowledge of the factual context and perhaps will have preconceptions or prejudgements. The members of the Executive Committee must bring to the task a will to reach an honest conclusion: see Udvarhely v. Canadian Air Line Flight Attendants Association (1979), 35 di 87 (C.L.R.B.); and Abbott v. International Longshoremen’s Association, Local 1953 (1977), 26 di 543 (C.L.R.B.). Evidence of actual bias is required: see Tomko.

395 Under the Conflict of Interest Policy, a conflict of interest arises when a decision maker has a personal or pecuniary interest in the outcome of a decision. The Conflict of Interest Policy provides that, if an elected or appointed representative has “… any personal or pecuniary interest …”, that person must do the following:

• declare the conflict of interest before a matter is considered at a meeting;
• not take part in the discussion of or vote on the matter; and
• not attempt to influence the voting.

The Conflict of Interest Policy further provides the following:

…

The failure of any elected or appointed representative to comply with this policy shall not, of itself, invalidate the decision and subsequent actions in respect of such matter.

…

Failure to comply with this policy may result in the invocation of the Discipline By-Law.

…

The naming of members of the Institute’s Executive Committee in other unrelated matters before the PSLRB is not a personal or pecuniary interest. The Institute argued as follows at paragraph 199 of its written argument:

If Ms. Bremsak is correct, Ms. Bremsak could avoid the possibility that the Institute’s Executive committee and Board of Directors could decide a complaint against her simply by naming each and every member of the Executive Committee and the Board of Directors in a complaint (as she has done in this complaints [sic] before the Board.) This is not only an unreasonable result, but would leave no one in authority at the Institute to rule on a complaint against Ms. Bremsak.

396 No evidence was adduced that Mr. Mattern was biased. Ms. Bremsak could have called him as a witness. She argued that an email exchange between Mr. Mattern and Mr. Gillis on August 27, 2009 (Exhibit G-1, Tab G), the day following the release of Bremsak 2 (original complaints) reinstating her into her elected offices demonstrates a reasonable apprehension of bias. Mr. Gillis testified that he deals with investigators as part of his role of managing the investigation process. He did not recall the purpose of the call referred to in the email exchange. The Institute argued that Ms. Bremsak’s representative had already seen fit to update Mr. Mattern about the release of Bremsak 2 (original complaints) and that it was incumbent on the Institute to ensure that Mr. Mattern had access to all current and possibly relevant information.

397 Contrary to Ms. Bremsak’s arguments, Mr. Mattern did not ignore relevant information. Ms. Bremsak’s representative took the opportunity to comment on the draft investigation reports about the April 2009 harassment complaints and the June 2009 harassment complaint (Exhibits R-2, Tab 40, pages 324 to 390, and R-2, Tab 41, pages 391 to 461). He referred Mr. Mattern to complaints before the PSLRB against other Vancouver Branch Executive members. Ms. Bremsak’s representative referred Mr. Mattern to the Institute’s response to the retaliation complaint and argued that the Institute instructed the Vancouver Branch Executive members to file the April 2009 harassment complaints and the June 2009 harassment complaint. It is clear that Mr. Mattern received and considered the materials supplied by Ms. Bremsak. It is clear that, based on Mr. Mattern’s mandate to investigate the April 2009 harassment complaints and the June 2009 harassment complaint, it did not matter whether Ms. Bremsak was correct in her assertion that her suspension from elected offices breached the Act. What mattered was whether her conduct amounted to harassment under the Harassment Policy. Mr. Mattern addressed the relevance of that information in his investigation analysis report on the April 2009 harassment complaints (Exhibit R-1, Tab 14, page 42), which is reported elsewhere in this decision.

398 It did not matter whether Ms. Bremsak had filed other complaints with the PSLRB; what mattered was whether she engaged in conduct that violated the Harassment Policy.

399 The Institute argued that, in the alternative, if natural justice was breached, it would not warrant setting aside the five-year suspension from membership in the Institute if the result would have been inevitable: see Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202.

400 It was incumbent on Ms. Bremsak, if she thought that the decision of the Institute’s Executive Committee was incorrect, to have the Institute’s Board of Directors correct any errors by exercising her right of appeal. Her failure to appeal amounts to a waiver of any complaints about the process: see Bremsak 2 (original complaints), at para 79; and Veillette 1 (2-year disciplinary suspension from elected office), at para 43. By failing to file an appeal, in effect Ms. Bremsak declined her opportunity to be heard. Therefore, no breach of natural justice occurred: see Langston v. Dungeon Siege Productions Inc. (2007), 132 C.L.R.B.R. (2d) 189 (B.C.L.R.B.).

401 Ms. Bremsak did not avail herself of an appeal. There is no evidence of what the decision of the Institute’s Board of Directors might have been. Both Mr. Gillis and Ms. Roy explained that only 5 of the 15 members of the Institute’s Board of Directors were also members of the Institute’s Executive Committee. The Board of Directors’ role in an appeal is to determine whether the Executive Committee acted within its mandate. The Executive Committee’s presence is essential to obtain an explanation of its decision. Executive members can abstain from voting. It is premature for Ms. Bremsak to make her argument, given that she did not file an appeal.

402 Ms. Bremsak could not demonstrate bias on the part of the Institute’sExecutive Committee, which is the required test, as she did notexercise her right to appeal: see Tomko; Coleman v. Rentz, [1995] B.C.L.R.B.D. No. 272 (QL); and Heinrichs v. United Brotherhood of Carpenters and Joiners of America (2006), 126 C.L.R.B.R. (2d) 177 (Alta. L.R.B.).

403 Even if the panel of the PSLRB finds that the appeal available under the 2009 Dispute Resolution Policy does not meet the minimum standards for natural justice, Ms. Bremsak made full arguments before the panel. Any defect in the 2009 Dispute Resolution Policy appeal procedure should not result in setting aside an otherwise proper decision to suspend Ms. Bremsak from membership in the Institute.

404 If Ms. Bremsak is correct that the failure to offer reimbursement for her expenses breached the principles of natural justice, it is immaterial to the legitimacy of the five-year suspension from membership in the Institute. The panel of the PSLRB has the transcript (Exhibit R-2, Tab 33) and a recording of what occurred during the June 3, 2009 incident at the Old Bavaria Haus Restaurant. There is no dispute as to what occurred, and Ms. Bremsak was not prejudiced. Furthermore, the five-year suspension from membership in the Institute was based solely on the April 2009 harassment complaints.

405 The Institute argued that paragraphs 188(d) and (e) of the Act were not breached. There is no evidence that Ms. Bremsak’s suspension from membership in the Institute was motivated in part by her exercising her rights under the Act or that she was penalized in any way because she filed complaints with the PSLRB. The five-year suspension complaint is without merit and the five year suspension was imposed because of her harassing conduct.

406 It is clear that Mr. Mattern found that harassment occurred because of Ms. Bremsak’s threats and intimidation to the Vancouver Branch Executive members, who did not impose Ms. Bremsak’s suspension from elected offices, because they chose to abide by the Institute’s decision that Ms. Bremsak was suspended from elected offices and could not be a delegate at Institute events. That is quite apart from any right that Ms. Bremsak had to file complaints under the Act.

407 There is no substance to any of Ms. Bremsak’s allegations that the Institute acted in bad faith. Proceeding with the harassment investigations was an ordinary application of the 2009 Dispute Resolution Policy.

408 No respondent was required to advise or warn Ms. Bremsak that her conduct was harassing and unacceptable. Some respondents took steps, including notifying the Institute’s Board of Directors, even though some thought that that would not be productive. They were correct as Ms. Bremsak and her representative continued their harassing behaviour at the June 3, 2009 meeting at the Old Bavaria Haus Restaurant, which occurred after Ms. Bremsak had received notice of the April 2009 harassment complaints. As she was not prepared to alter her behaviour even after the April 2009 harassment complaints were filed, a warning would have served no purpose.

d. Applications for consent to prosecute

409 As opposed to the April 2009 harassment complaints and the June 2009 harassment complaint, which were filed by members of the Institute in their personal capacity, the Institute’s Board of Directors and Institute’s Executive Committee made the decisions that are challenged by the non-reinstatement and the five-year suspension complaints. A consent to prosecute should not be issued against individual Institute officers or members unless it is proved that those persons played an integral role in any alleged breach of the Act: see National Harbours Board v. Syndicat National des Employés du Port de Montréal (C.N.T.U.) (1979), 33 di 557 (C.L.R.B.).

410 The panel of the PSLRB should decline to provide its consent to permit Ms. Bremsak to commence a prosecution of the respondents. Panels of the PSLRB have rarely granted their consent to prosecute. Under the former Public Service Staff Relations Act, R.S.C., 1985, c. P-35, almost all applications for consent to prosecute involved situations in which it was alleged that an employee participated in an illegal strike.

411 The panel of the PSLRB should view this type of application as extremely serious and exceptional, as there are potential legal consequences under section 205 of the Act for persons against whom prosecution is initiated.

412 Ms. Bremsak treated the filing of applications for consent to prosecute as a routine practice and submitted many applications for consent to prosecute, as a tactical device. That practice should be discouraged: see Quadrini v. Canada Revenue Agency and Hillier, 2008 PSLRB 37, at para 67 and 68; and Treasury Board v. Power, PSSRB File No. 194-02-50 (19790116). Applications for consent to prosecute should be granted only in extreme cases, as a last resort and only when it can be shown that the consent will contribute to the observance of the law and harmonious labour relations: see National Harbours Board. A consent to prosecute should be issued only if there is a “… flagrant and egregious beach of the Act as to warrant criminal prosecution …”: see Bremsak 12 (judicial review of Bremsak 9 (complaints and applications for consent to prosecute related to the Institute’s failure to comply with Bremsak 2 (original complaints)), at para 33.

413 The Institute proceeded in good faith throughout the complaint process before the panel of the PSLRB, as did the members of the Vancouver Branch Executive. On the other hand, Ms. Bremsak has sought to prolong the dispute through a multiplicity of proceedings and has aggravated the situation through her conduct: see Treasury Board v. Brunet et al., PSSRB File Nos. 194-02-14, 17 and 18 (19720922).

414 Labour relations solutions, rather than prosecution, should be used to resolve labour relations problems: see St. John’s Shipping Association Limited v. Kennedy (1985), 61 di 39 (C.L.R.B.).

415 As relief, Ms. Bremsak seeks the automatic filing of this decision in the Federal Court. That is contrary to section 52 of the Act, which sets out the process for such a filing.

416 In answer to my question about Ms. Bremsak’s comments on the length of her suspension from membership in the Institute, the Institute argued that the panel of the PSLRB should give substantial deference to the decision of the Institute’s Executive Committee, provided that the panel of the PSLRB finds that the Executive Committee took into account relevant considerations when it imposed the suspension. Expelling Ms. Bremsak from the Institute was an option that the Executive Committee did not choose. It considered her conduct very serious. That conduct occurred over more than one year, involved a number of Institute members and had a serious effect on volunteers. Ms. Bremsak had no remorse and no understanding that her conduct was harassment.

3. Ms. Bremsak’s rebuttal

417 On June 11, 2012, Ms. Bremsak filed a 26-page rebuttal. In my view, it largely consisted of a reiteration of her oral closing arguments. The rebuttal submissions contained a number of authorities or updates to the proceedings, such as Bremsak 3 (denial of stay of Bremsak 2 (original complaints) pending judicial review of both Veillette 2 (indefinite administrative suspension from elected office) and Bremsak 2 (original complaints)) and Bremsak 13 (appeal of Bremsak 11 (civil contempt charges)), Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63; Canam Enterprises Inc. v. Coles (2000), 51 O.R. (3d) 481 (C.A.); D.L.B. v. W.T.M., 2005 MBQB 116; Sobeys Inc., Retail Support Centre – Whitby v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (Caw-Canada), 2008 CanLII 54286 (Ont. L.A.); and Prescott-Russell Services for Children and Adults v. G. (N.) (2006), 82 O.R. (3d) 686 (C.A.). A number of new arguments were apparently being made. Therefore, I have recorded those arguments that struck me as new or that were given in proper rebuttal.

418 Ms. Bremsak argued that, by ignoring Veillette 2 (indefinite administrative suspension from elected office), an abuse of process occurred, as Veillette 2 (indefinite administrative suspension from elected office) must stand, with its consequent legal effects: see Toronto (City), at para 56. I note that Toronto (City) deals with theissue of re-litigating the facts of a criminal conviction in an arbitration process followinga criminal conviction. The re-litigationof the same facts was said to be an abuse of process.

419 The denial of Ms. Bremsak’s right to vote at the 2008 Regional Council meetings was a breach of the By-Laws, as she still remained a member in good standing because her fees were not in arrears of more than 90 days. Ms. Bremsak referred to By-Law 7.1 (Exhibit G-1, Tab 3). By-Law 7.1 reads as follows:

BY-LAW 7 RIGHTS OF MEMBERSHIP

Subject to being members in good standing:

7.1 Regular and Retired Members Only Regular and Retired members have the right to be candidates for office, to vote for officers, to otherwise participate in the affairs of the Institute, and, subject to By-Law 7.1.1, the affairs of the constituent bodies of the Institute. Only Regular and Retired members shall be eligible to attend General Meetings of the Institute. Only Regular members shall be eligible for appointment as Stewards.

7.1.1 Groups and Sub-Groups may, in accordance with their Constitutions, determine the level of participation of Retired members in their affairs. AGM 2006 (e)

7.1.2 Notwithstanding By-Law 24 Discipline, and subject to applicable legislation, a Regular member may, upon recommendation of the appropriate Group Executive, have his right to vote on a tentative agreement removed by the Board of Directors for non-participation in legal and authorized job-related actions. Removal of such right shall require a two-thirds (2/3) vote of the Board of Directors. Between regular meetings of the Board, the Executive Committee shall exercise the power of the Board with respect to the removal of a Regular member's right to vote on a tentative agreement for non-participation in legal and authorized job-related actions. Removal of such right shall require a unanimous vote of the Executive Committee.

7.1.3 Retired members who ceased to be Regular members during the retroactive period of a collective agreement, may be granted the right to vote on that tentative agreement that affects them, unless otherwise precluded by the applicable legislation.

7.1.4 Regular and Retired members have a right to be fully informed of all actions and subjects of Institute concern and to be given full disclosure as expeditiously as possible of such information by news release or as a reply to the written request of a member.

7.1.4.1 Notwithstanding By-Law 24, personal information about identified individuals and proceedings of Closed Session meetings convened by the Board, the Executive Committee or by any constituent body or its Executive shall not be so disclosed. AGM 2005 (e)

7.1.5 Members not in good standing shall not be eligible to hold Institute office at any level, to vote in any and all Institute elections, to ratify Group tentative agreements, or to participate in Institute training.

[Emphasis in the original]

420 In Bremsak 2 (original complaints), a panel of he PSLRB ruled that the incident at the April 23, 2008 meeting of the Vancouver Branch Executive created no real harm and Ms. Bremsak argued that estoppel bound the Institute and the Vancouver Branch Executives to that finding. I note that Ms. Bremsak’s written arguments mention estoppel many times.

421 The Institute’s Board of Directors and the Institute’s Executive Committee were in contempt of Bremsak 2 (original complaints). Therefore, both had a clear and vested interest in the outcome of the April 2009 harassment complaints and the June 2009 harassment complaint.

422 At paragraph 62 of Bremsak 2 (original complaints), a panel of the PSLRB found that it had jurisdiction to review the Policy Related to Members and Complaints to Outside Bodies. The overreaching definition of “harassment” used by Mr. Mattern had discriminatory consequences. Therefore, the panel of the PSLRB may determine the legitimacy of the “harassment” definition used by Mr. Mattern.

423 At paragraph 90 of her rebuttal arguments, Ms. Bremsak argues as follows about the June 3, 2009 incident at the Old Bavaria Haus Restaurant:

… Ms. Bremsak has a legal duty to disclose and serve legal documents to the Respondents according to Federal Court Rule 128, which deals with personal service on individuals, and Federal Court Rule 130, which deals with personal service on corporations. This is required by law because Ms. Bremsak intended to use these documents. The act of properly disclosing and serving legal documents cannot be treated as harassment because of its legitimate purpose.

424 Ms. Bremsak’s intentions are relevant as an objective basis is required to conclude that harassment occurred. Ms. Bremsak relied on Sobeys Inc., Retail Support Centre – Whitby, as follows:

…

Harassment has been defined in many ways. But the accepted components of personal harassment include the objectionable or hostile maltreatment or abuse of power that creates a risk, affects a person’s dignity or amounts to an actual or attempted exercise of physical or psychological duress. This is not a subjective test. Just because someone perceives an action to be hostile or vexatious does not mean that harassment has occurred. There has to be an objective basis for the conclusion.

…

425 Ms. Bremsak argued that the April 2009 harassment complaints and the June 2009 harassment complaint and her five-year suspension from membership in the Institute were a collateral attack on Bremsak 2 (original complaints), as the Institute argued in the Federal Court and Federal Court of Appeal that the five-year suspension was why it could not comply with Bremsak 2 (original complaints). A collateral attack is “… an attack made in proceedings other than those whose specific object is the reversal, variation, or nullification of the order or judgment …”, according to paragraph 33 of Toronto (City).

IV. Reasons

426 These matters are unique. Ms. Bremsak launched many proceedings. The original complaints arose from an apology that the Institute’s Board of Directors made on her behalf when she refused to apologize for comments that she made about another member of the Institute and about her automatic temporary suspension from her elected offices with the Institute pursuant to the Policy Related to Members and Complaints to Outside Bodies. I note that Ms. Bremsak’s misconduct and suspension from elected offices arose in the context of what might be characterized as internal bargaining agent politics. It had no connection to her employment relationship or employment status.

427 The complaints and applications at hand may be a good example of how matters can escalate and become more complicated than necessary. This decision addresses the non-reinstatement, retaliation and five-year suspension complaints, and associated applications for consent to prosecute. It is about the conduct of Ms. Bremsak and the Institute in the period before a panel of the PSLRB rendered Bremsak 2 (original complaints) and about the investigations of Ms. Bremsak’s conduct, which started before Bremsak 2 (original complaints) was issued but concluded after it.

428 In this hearing, I tried to confine the issues to those before me. In Bremsak 2 (original complaints), a panel of the PSLRB made orders about the Policy Related to Members and Complaints to Outside Bodies and about the original complaints. Bremsak 11 (civil contempt charges) made findings about the Institute’s contempt of Bremsak 2 (original complaints), which were upheld on appeal: see Bremsak 13 (appeal of Bremsak 11 (civil contempt charges)).

429 Ms. Bremsak also argued that, because Bremsak 2 (original complaints) commented about no real harm having been done to the Institute by Ms. Bremsak’s April 2008 actions, those actions cannot be characterized by the Institute as harassment. I note that the issue of Ms. Bremsak harassing members of the Vancouver Branch Executive was not a matter before the panel of the PSLRB that decided the original complaints. That panel made its comments in the context of an analysis of whether those actions were evidence of a real conflict between the interests of the Institute and those of Ms. Bremsak. The allegations of harassment in the matters before me relate to the personal rights of any Institute member to work or interact in a harassment-free environment. Just because a panel of the PSLRB ruled in Bremsak 2 (original complaints) that the Institute suffered no real harm, it cannot automatically be found that no real harm was done to the individual recipients of Ms. Bremsak’s conduct. The issues in Bremsak 2 (original complaints) did not call for that panel of the PSLRB to determine whether the individual rights of the Vancouver Branch Executive members to a harassment-free environment were violated. I note that that issue was not raised in any of the original complaints. However, it is a live issue for this panel of the PSLRB to determine in the matters before me.

430 It appears that the Federal Court had some misgivings about making findings on the civil contempt charge when the five-year suspension complaint was still before a panel of the PSLRB. The Court wrote as follows in Bremsak 11 (civil contempt charges), at para 7:

[7] This Court has always been concerned by the fact that it was called upon to rule on the defence put forward by the Institute when the validity of the defence was being considered by the Board. Upon reflection, this Court decided to delay rendering judgement until the Board had ruled on the validity of the Executive Committee’s decision to immediately suspend the applicant from membership. Ms. Bremsak appealed my decision to the Federal Court of Appeal (FCA) and was supported by Counsel for the Institute. The FCA ruled that I erred in deferring my judgment …

It is also clear from a reading of Bremsak 11 (civil contempt charges) that, although the Federal Court determined that the harassment investigations and findings were not a reasonable excuse for the Institute’s failure to implement Bremsak 2 (original complaints), the Court did not attempt to bind this panel of the PSLRB in any way with respect to my determination of matters properly before me. The Court commented as follows at para 83:

[83] … I must not be taken as having decided the merits of the Institute’s decision. The Institute had the right to investigate and to discipline Ms. Bremsak. The allegations against her and her husband were serious. The question is whether they amounted to harassment, and whether the penalty and its timing were reasonable and proportioned.

In my view, Bremsak 11 (civil contempt charges), which the Federal Court of Appeal upheld in Bremsak 13 (appeal of Bremsak 11 (civil contempt charges)), has no bearing on assessing the alleged harassment that occurred before Bremsak 2 (original complaints) was decided.

431 Obviously, a party cannot be in contempt of an order of a panel of the PSLRB before that order is pronounced. In Bremsak 2 (original complaints), a panel of the PSLRB specifically found no violation of paragraph 188(c) of the Act in how the Institute applied its policies or By-Laws with respect to the first original complaint. At para 120, the panel found no merit in the first original complaint. The panel drew no firm conclusions that Ms. Bremsak was targeted by the application of the Policy Related to Members and Complaints to Outside Bodies: see para 123. However, the panel found that it was contrary to subparagraph 188(e)(ii) to suspend Ms. Bremsak from her elected positions because of the first original complaint. Nevertheless, the panel did not find that the Policy Related to Members and Complaints to Outside Bodies as a whole was contrary to the Act but found that it was overreaching in scope as it applied to Ms. Bremsak: see para 130.

432 Much of Ms. Bremsak’s case rests on the incorrect legal premise that the Institute was bound to reinstate her into her elected offices and positions as a result of Veillette 2 (indefinite administrative suspension from elected office) issued on May 29, 2009. The Institute had no obligation at law to reinstate her following Veillette 2 (indefinite administrative suspension from elected office), as Ms. Bremsak was not a party to that proceeding. Panels of the PSLRB issued conflicting rulings about their power to reinstate individuals under section 188 of the Act. In fact, in Veillette 2 (indefinite administrative suspension from elected office), a panel of the PSLRB found that it had no power to reinstate Mr. Veillette. Ms. Bremsak had her own proceeding before another panel of the PSLRB, in which that panel denied her request for interim relief. As noted by the Federal Court at para 85 of Bremsak 11 (civil contempt charges), “… the contempt clock started ticking …” when Bremsak 2 (original complaints) was rendered on August 26, 2009.

433 In my view, the illegality of Ms. Bremsak’s suspension from elected offices, ultimately determined in Bremsak 2 (original complaints) in August 2009, has no bearing on the assessment of whether Ms. Bremsak’s conduct, committed between April 2008 and June 3, 2009, was harassment. All the allegations about Ms. Bremsak’s harassment in these matters arose before Bremsak 2 (original complaints) was issued. That is because, independent of the Policy Related to Members and Complaints to Outside Bodies, the suspension of Ms. Bremsak from elected offices or her proceedings before the PSLRB, Ms. Bremsak had a duty to behave with a minimum degree of civility toward other Institute members. She was obliged to not engage in harassing conduct. Although she has the right to make complaints to the PSLRB about allegations that her rights were violated, the matters before me are about what she said and did to other Institute members and not about the filing of her complaints with the PSLRB.

434 I think that it is pretty clear in these matters that Ms. Bremsak was blinded by her belief in the legitimacy of her cause against the Institute. That does not excuse her poor behaviour. The subsequent civil contempt finding in Bremsak 11 (civil contempt charges) for the Institute’s failure to implement fully Bremsak 2 (original complaints) does not excuse Ms. Bremsak’s conduct before Bremsak 11 (civil contempt charges) was issued.

435 It should be remembered that the first original complaint related to the issuance of an apology by the Institute’s Board of Directors for Ms. Bremsak’s incivility toward another Institute member. Ms. Bremsak filed a complaint under section 189 of the Act, and a panel of PSLRB dismissed that complaint as lacking merit. The panel made direct comments about Ms. Bremsak’s lack of credibility about her uncivil behaviour.

436 The second original complaint was about the Institute’s decision to suspend Ms. Bremsak from elected offices pursuant to the Policy Related to Members and Complaints to Outside Bodies. Ms. Bremsak was suspended from elected offices when she engaged with other members of the Vancouver Branch Executive in the circumstances surrounding the non-reinstatement, the retaliation and the five-year suspension complaints.

A. Non-reinstatement complaint and related application for consent to prosecute

437 The essence of the non-reinstatement complaint is that neither the Institute nor the Vancouver Branch Executive took steps to reinstate Ms. Bremsak into her elected offices or appoint her as a delegate to the 2009 Regional Council meeting, despite her demands to the Institute and to the Vancouver Branch Executive after the issuance of Veillette 2 (indefinite administrative suspension from elected office). By agreement between Ms. Bremsak’s representative and counsel for the respondents, I was advised that Ms. Bremsak alleged that the respondents breached paragraphs 188(b) and (e) of the Act. I will restate as follows the relevant provisions of section 188 of the Act that I must consider in deciding this complaint:

188. No employee organization and no officer or representative of an employee organization or other person acting on behalf of an employee organization shall

…

(b) expel or suspend an employee from membership in the employee organization or deny an employee membership in the employee organization by applying its membership rules to the employee in a discriminatory manner;

…

(e) discriminate against a person with respect to membership in an employee organization, or intimidate or coerce a person or impose a financial or other penalty on a person, because that person has

(i) testified or otherwise participated or may testify or otherwise participate in a proceeding under this Part or Part 2,

(ii) made an application or filed a complaint under this Part or presented a grievance under Part 2, or

(iii) exercised any right under this Part or Part 2.

438 On June 6 and July 4, 2008, a panel of the PSLRB refused Ms. Bremsak’s application for interim relief in Bremsak 1 (denial of interim relief pending a decision on the first original complaint), which included a request for reinstatement into Ms. Bremsak’s elected offices. I note that the application was apparently made to permit her to attend as a delegate the 2008 Regional Council meetings. In my view, following the issuance of Bremsak 1 (denial of interim relief pending a decision on the first original complaint), any reasonable person would have simply continued to participate in the pursuance of the original complaints, make arguments and await the ruling of the panel of the PSLRB hearing the complaints. There was no need for Ms. Bremsak to attempt to involve others, such as the Vancouver Branch Executive, in her case. There was no legitimate purpose to her attempts to involve others in her dispute. As noted in Latrémouille, section 188 of the Act is not a tool to be used to further the political agenda or indeed the litigation agenda of a party over the interests of the majority of the members of a bargaining agent. The facts leading to the non-reinstatement complaint are an example of a person pursuing her own agenda, an example of a conflict in which a complainant is attempting to undermine the defence of the Institute about the second original complaint by threatening to multiply proceedings before the PSLRB.

439 Following the issuance of Veillette 2 (indefinite administrative suspension from elected office) on May 29, 2009, Ms. Bremsak pressed for reinstatement into her elected offices. She argued that the continuation of her suspension from elected offices constituted a breach of the Act as a result of an illegal policy. Ms. Bremsak’s major argument is that the failure to reinstate her into her elected offices following Veillette 2 (indefinite administrative suspension from elected office) was in effect a civil contempt of an order of a panel of the PSLRB, which civil contempt she argued is continuing. I note that Bremsak 11 (civil contempt charges) made a civil contempt finding about the Institute’s failure to reinstate Ms. Bremsak into her elected offices as a result of Bremsak 2 (original complaints), which was issued three months after Veillette 2 (indefinite administrative suspension from elected office), and it held that Bremsak 2 (original complaints) was effective as of the date on which it was rendered. The Federal Court made no civil contempt finding against this Institute for the period before Bremsak 2 (original complaints) was issued. As a matter of logic, the Institute was not in contempt of any order of a panel of the PSLRB about Ms. Bremsak at the time the non-reinstatement complaint was filed on June 8, 2009, as no order had yet been made by a panel of the PSLRB to reinstate Ms. Bremsak into her elected offices, and certainly the Institute was not in contempt of the order in Veillette 2 (indefinite administrative suspension from elected office) in its dealings with Ms. Bremsak, as she was not a party to Veillette 2 (indefinite administrative suspension from elected office).

440 I note that, although the Policy Related to Members and Complaints to Outside Bodies at issue in Veillette 2 (indefinite administrative suspension from elected office) was the same as that considered in Bremsak 2 (original complaints), the original complaints involved different parties and different provisions of section 184 of the Act than those in Veillette 2 (indefinite administrative suspension from elected office): see Danyluk. From a technical or legal point of view, Veillette 2 (indefinite administrative suspension from elected office) did not render the second original complaint res judicata (already judged). Veillette 2 (indefinite administrative suspension from elected office) might well have been persuasive to the panel of the PSLRB that decided Bremsak 2 (original complaints), but that panel was certainly not bound by the result in Veillette 2 (indefinite administrative suspension from elected office); nor was Ms. Bremsak or the Institute bound by that result. In my view, Ms. Bremsak’s argument that Veillette 2 (indefinite administrative suspension from elected office) was binding on the Institute is self-serving; even she did not consider Veillette 2 (indefinite administrative suspension from elected office) as fully binding on her. When Veillette 2 (indefinite administrative suspension from elected office) was issued, on May 29, 2009, the original complaints were proceeding before a panel of the PSLRB and the parties’ last written submissions were filed with that panel on June 25, 2009. The Institute was in the process of responding to the original complaints when Veillette 2 (indefinite administrative suspension from elected office) was issued, and it had the legal right to make arguments about the applicability of Veillette 2 (indefinite administrative suspension from elected office) to the original complaints proceeding before another panel of the PSLRB. Ms. Bremsak herself made further submissions that the findings of a lack of power to reinstate Mr. Veillette in Veillette 2 (indefinite administrative suspension from elected office) did not bind the panel of the PSLRB hearing the original complaints into not reinstating Ms. Bremsak to her elected offices.

441 It is clear from Veillette 2 (indefinite administrative suspension from elected office) that a nuanced response is necessary when the Institute considers suspending a member from elected offices because of litigation in another forum. The circumstances must be weighed, and each case is unique. However, it is ill founded to suggest that, as a matter of law, Ms. Bremsak should have been reinstated automatically after Veillette 2 (indefinite administrative suspension from elected office) was issued, given the nuanced analysis required and the fact that Veillette 2 (indefinite administrative suspension from elected office) found that a panel of the PSLRB had no power or jurisdiction to order reinstatement into elected offices. I wish to place that in context as section 188 is a new provision in the Act. Before the Act, a panel of the Public Service Staff Relations Board only had the power to review a bargaining agent’s actions in the conduct of grievances. Section 188 introduced a wider scope of review of bargaining agent conduct. Interpretations of that section will be refined by bringing cases before the PSLRB. Its full scope has yet to be determined. It was made somewhat clearer in Bremsak 2 (original complaints) but was not any clearer when Veillette 2 (indefinite administrative suspension from elected office) was issued. I consider that the Institute had legitimate reasons at the time for its view that it would simply continue to respond to the original complaints that were proceeding before a different panel of the PSLRB.

442 I note that the Institute did not take any new action against Ms. Bremsak after Veillette 2 (indefinite administrative suspension from elected office) was issued. Her suspension from elected offices had been imposed on April 9, 2008 by a letter from Mr. Corbett (Exhibit R-1, Tab 19, page 126). She was challenging that suspension in the second original complaint before the PSLRB. Bremsak 1 (denial of interim relief pending a decision on the first original complaint) had refused Ms. Bremsak’s interim application to revoke her suspension from elected offices. Until the validity of the suspension was decided by a panel of the PSLRB, it remained effective, regardless of Veillette 2 (indefinite administrative suspension from elected office). The Institute simply indicated that it would await the ruling of a panel of the PSLRB on the second original complaint. I am not going to second-guess the Institute on why it did not reinstate Ms. Bremsak into her elected offices while the second original complaint was pending before a panel of the PSLRB. Both Mr. Gillis and Ms. Roy testified that the Institute considered that there were differences between the situations of Ms. Bremsak and Mr. Veillette. The actions of the Institute cannot be called either discriminatory or a penalty. I adopt the definition of “penalty” described in Veillette 2 (indefinite administrative suspension from elected office) and find that no penalty was imposed on Ms. Bremsak by the Institute following that decision being rendered. Ms. Bremsak did not establish any elements of a breach of section 188 of the Act by the Institute.

443 I note that Ms. Bremsak and her representative attended a Vancouver Executive Branch meeting on June 3, 2009 at the Old Bavaria Haus Restaurant. Her representative argued that they did so simply to serve Veillette 2 (indefinite administrative suspension from elected office) on the Vancouver Branch Executive. Ms. Bremsak’s representative did not give evidence in these matters and I place no weight on the assertions that he made in argument. However, it appears that Ms. Bremsak’s representative misled the Vancouver Branch Executive members as to the true nature of Veillette 2 (indefinite administrative suspension from elected office). He said that it supported Ms. Bremsak’s reinstatement into her elected offices, when in fact a panel of the PSLRB found that it had no power to reinstate Mr. Veillette into his elected offices. At para 43 of Veillette 2 (indefinite administrative suspension from elected office), the panel wrote the following:

[43] Although I am allowing the complaint, I do not have the power to order that the complainant be appointed as a bargaining agent representative or that he be reinstated in his duties because I would then clearly be intervening in bargaining unit matters, for which I have no authority…

444 In my view, the conduct of Ms. Bremsak’s representative at the meeting was deceitful. Because he did not give evidence in these matters and was not subject to cross-examination, I have no explanation for his conduct. It strikes me as a complete lack of good faith that Ms. Bremsak attended the June 3, 2009 meeting at the Old Bavaria Haus Restaurant to deal with the issue of her status as a delegate to the 2009 Regional Council meeting when she knew the following:

• that Ms. Bremsak was suspended from elected offices;
• that a panel of the PSLRB had turned down Ms. Bremsak’s request for interim relief in Bremsak 1 (denial of interim relief pending a decision on the first original complaint);
• that Veillette 2 (indefinite administrative suspension from elected office) did not support Ms. Bremsak’s reinstatement into any elected offices or her appointment as a delegate to the 2009 Regional Council meeting and that her reinstatement into elected offices would require an argument before the panel of the PSLRB hearing the second original complaint;
• that the second original complaint was pending before a panel of the PSLRB;
• that all the issues of substance relating to Ms. Bremsak’s suspension from elected offices were already before a panel of the PSLRB; and
• that Ms. Bremsak did not apply for pre-hearing relief based on Veillette 2 (indefinite administrative suspension from elected office) before the panel of the PSLRB hearing the second original complaint.

I find that Ms. Bremsak and her representative attended the June 3, 2009 meeting at the Old Bavaria Haus Restaurant for the express purpose of providing ammunition for the non-reinstatement complaint, or alternatively, it was an attempt to undermine the Institute’s position in a matter before a panel of the PSLRB. The Vancouver Branch Executive members were not required to assist Ms. Bremsak in her fight with the Institute’s Board of Directors about her suspension from elected offices; they had no power to reinstate her. The Board of Directors imposed the suspension. The Vancouver Branch Executive had no power to appoint her as a delegate to the 2009 Regional Council meeting while she was suspended. The Vancouver Branch Executive imposed no penalty on her. Ms. Bremsak did not establish any elements of a breach of section 188 of the Act by the Vancouver Branch Executive members.

445 Ms. Bremsak’s filing of the non-reinstatement complaint was an unnecessary complication to the dispute already before the panel of the PSLRB that decided Bremsak 2 (original complaints). The complaint raised no fresh issue that was not or that could not be brought before that panel. Ms. Bremsak did argue the effect of Veillette 2 (indefinite administrative suspension from elected office) before that panel. I note that section 188 of the Act protects the right to file a complaint and that Ms. Bremsak was already pursuing those rights before a panel of the PSLRB. By pressing the second original complaint to conclusion, Ms. Bremsak eventually got her reinstatement remedy with the issuance of Bremsak 2 (original complaints).

446 In Bremsak 2 (original complaints), a panel of the PSLRB stated as follows at para 121 about Ms. Bremsak’s behaviour in relation to her request for delegate status for the 2008 Regional Council meetings:

[121] One aspect of the facts is nonetheless troubling in the context of this issue. The complaint attended meetings after she was suspended from office under the policy described above. She was able to speak at those meetings as a member, but she was not attending in the capacity of any of her elected offices. Unfortunately, her conduct at those meetings was disruptive to the point that other people had to intervene to maintain order. The complainant disputes that she was disruptive at these meetings but I prefer the evidence from the bargaining agent’s witnesses on this point. The complainant also believe [sic] that she should have been treated the same as other delegates to these meetings in terms of reimbursement for expenses and she objects to being excluded from some parts of those meetings. I appreciate that she was angry and upset that she had been suspended from her elected positions. But suspended she was, and I can only conclude that her insistence on being treated as if she was not suspended was unreasonable and disruptive behaviour.

[Emphasis added]

I draw a similar inference with regard to the non-reinstatement complaint. By her insistence on being treated as if she were not suspended from elected offices, Ms. Bremsak engaged in unreasonable and disruptive behaviour. In my view, Ms. Bremsak’s suspension and her allegation that the Policy Related to Members and Complaints to Outside Bodies was unlawful were already before the panel of the PSRLB hearing the second original complaint. The filing of the non-reinstatement complaint — a subsequent, new complaint based on the same underlying facts — is an abuse of the processes set out in the Act. I therefore consider Ms. Bremsak’s filing of the non-reinstatement complaint detrimental to the pursuit of mutual respect and harmonious labour relations, which are principles that underlay the labour-relation regime set out in the Act, and an abuse of process.

447 This complaint is dismissed along with the related application for consent to prosecute.

B. Retaliation complaint and related application for consent to prosecute

448 Ms. Bremsak filed the retaliation complaint against individual members of the Vancouver Branch Executive, alleging that their decision to file the April 2009 harassment complaints was a breach of paragraphs 188(b) and (e) of the Act. However, at the hearing before me Ms. Bremsak and the respondents also dealt with the June 2009 harassment complaint as if it were covered by the retaliation complaint. I will now restate as follows the relevant provisions of section 188 of the Act that I must consider in deciding this complaint:

188. No employee organization and no officer or representative of an employee organization or other person acting on behalf of an employee organization shall</p>

…

(b) expel or suspend an employee from membership in the employee organization or deny an employee membership in the employee organization by applying its membership rules to the employee in a discriminatory manner;

…

(e) discriminate against a person with respect to membership in an employee organization, or intimidate or coerce a person or impose a financial or other penalty on a person, because that person has

(i) testified or otherwise participated or may testify or otherwise participate in a proceeding under this Part or Part 2,

(ii) made an application or filed a complaint under this Part or presented a grievance under Part 2, or

(iii) exercised any right under this Part or Part 2.

449 There is a fundamental problem with the retaliation complaint, as it relates to individual members of the Vancouver Branch Executive. None of them could have breached paragraph 188(b) of the Act as none of them had the power to expel or suspend Ms. Bremsak from membership in the Institute or to deny her membership in the Institute. Similarly, the members of the Vancouver Branch Executive could not have breached paragraph 188(e) by discriminating against Ms. Bremsak with respect to membership in the Institute or by imposing a financial or other penalty on her as only the Institute’s Executive Committee could take such actions under the 2009 Dispute Resolution Policy. However, members of the Vancouver Branch Executive could possibly intimidate or coerce a person in breach of paragraph 188(e), but the words “… because that person has …” in that paragraph require causation. The impugned acts of intimidation or coercion must be linked to testimony, either in the past or anticipated in the future or by participation in a proceeding, making an application, filing a complaint or a grievance, or exercising a right under Part 1 or 2 of the Act. This is a very serious allegation that Ms. Bremsak must prove with clear, cogent and convincing evidence: see F.H. v. McDougall, 2008 SCC 53. That evidentiary burden was not met in this case.

450 Analyzing timing often helps when considering causation. The timing in this case is interesting in that the April 2009 harassment complaints and the June 2009 harassment complaint were filed more than a year after Ms. Bremsak had filed the original complaints with the PSLRB, but months before Bremsak 2 (original complaints) was issued on August 26, 2009. Therefore, the filing of the April 2009 harassment complaints and the June 2009 harassment complaint could not have been motivated by the findings in Bremsak 2 (original complaints) that Ms. Bremsak had to be reinstated into her elected offices, as the members of the Vancouver Branch Executive could not have known the outcome of the original complaints before a panel of the PSLRB pronounced on them.

451 Ms. Bremsak argued that the Institute orchestrated the filing of the April 2009 harassment complaints and the June 2009 harassment complaint. The sole basis for that argument is the following pleading at paragraph 13 of the respondents’ response to the retaliation complaint: “[a]t all relevant times, the Respondents were acting in accordance with the directions and instructions of the Institute’s Board of Directors.” Ms. Roy, the drafter of the response, testified as to her intentions behind the words she used. She did not intend to communicate that the April 2009 harassment complaints and the June 2009 harassment complaint were initiated on the Institute’s directions and instructions but that the Vancouver Branch Executive was instructed that Ms. Bremsak was suspended from elected offices and that she could not be a delegate to the 2008 Regional Council meetings. Ms. Bremsak’s representative vigorously cross-examined Ms. Roy, who remained unshaken in her evidence.

452 Given past difficulties with Ms. Bremsak’s behaviour, Ms. Ralston’s April 18, 2008 email (Exhibits G-1, Tab J, and R-2, Tab 43, page 514-34) had provided the following instructions to the Vancouver Branch Executive about how to deal with Ms. Bremsak:

…

Executive Committee discussed your queries yesterday. I hope that the following information will provide the guidance that you are seeking.

6. BC/Yukon Regional Council – She cannot be considered as a delegate to the Council.
7. Copies of Branch Sub-Group Executive Meetings – She is a regular member and should receive information in the same way as other regular members.
8. Attendance at Branch Sub-Group Executive Meetings – There is nothing to prevent regular members from attending these meetings. In this instance, the member is to cover their own expenses; the individual is there as an observer only. Should the person be disruptive, the Chair can ask the member to leave. Should the meeting go into ‘Closed Session’ you would then ask the individual to leave the room. FYI, the practice at the Board has been that a member would first seek permission from the Chair (Office of the President). We then inform the individual of the acceptance of the Chair, the possibility that they could be asked to leave the room if discussion goes into ‘Closed Session’, and we usually extend an invitation to remain for lunch with the Board.
9. Vice-President Presence – Executive Committee recommended that David Gray attend your upcoming meetings. Would you please contact him to provide details of dates and locations.
10. Other: Should you or any or your members be faced with a situation of intimidation / threat, would you please document incident immediately and send into the Office of the President.

…

[Sic throughout]

I do not find that those instructions can be said to be proof that, as noted in Ms. Bremsak’s submissions, “[t]he Respondents trumped up fake charges of harassment that do not meet the definition of harassment according to the PIPSC’s harassment policy, as alleged by Ms. Bremsak.” Those instructions were given more than a year before the April 2009 harassment complaints and the June 2009 harassment complaint were filed. I accept that they were given because the Institute expected difficulties with Ms. Bremsak, which materialized.

453 Each named respondent to the retaliation complaint testified. Their testimonies were unshaken, despite extensive cross-examination by Ms. Bremsak’s representative, in that each made a personal decision to raise allegations of harassment and to file a complaint of harassment without the involvement of the Institute’s Board of Directors. Furthermore, Mr. Gillis and Ms. Roy testified that the Institute did not direct the complainants to file the April 2009 harassment complaints or the June 2009 harassment complaint. I accept these testimonies and find that the Institute’s Board of Directors played no role in the filing of the April 2009 harassment complaints or the June 2009 harassment complaint.

454 Harassment policies are intended to provide a minimum level of decorum and civility in dealings between people. To that extent, such policies can be used legitimately to control or modify the behaviour of individuals. The fact that Ms. Bremsak had ongoing disputes with the Institute and had filed complaints with the PSLRB did not immunize her from the obligation she had in common with all other Institute members to behave with the minimum level of decorum and civility towards other members, which is protected by the Harassment Policy. It is important that the Institute has a method of resolving disputes between members. I note that, under the Harassment Policy, the Institute states its commitment to a harassment-free environment and its obligations to investigate complaints and to apply discipline. A complaint can be made if a member feels harassed or has witnessed an act and believes that another member was harassed. In the circumstances surrounding the retaliation complaint, it cannot be said seriously that, by filing the April 2009 harassment complaints and the June 2009 harassment complaint, members of the Vancouver Branch Executive were acting in any official capacity on behalf the Institute. Any Institute member has the right to file a harassment complaint.

455 I accept that it is theoretically possible for an entity or individual to abuse the Harassment Policy and to cause an investigation to be launched, to intimidate or coerce a member. That is one of the main reasons a hearing was required in this case. However, in my view, the evidence before me supports a finding that, on a balance of probabilities, the members of the Vancouver Branch Executive filed the April 2009 harassment complaints and the June 2009 harassment complaint because they genuinely believed that Ms. Bremsak harassed them and not because she was pursuing the original complaints before the PSLRB. The April 2009 harassment complaints and the June 2009 harassment complaint cannot be termed frivolous as Mr. Mattern’s investigations found that harassment occurred. Further, I see nothing in the evidence before me that would warrant a finding that the April 2009 harassment complaints and the June 2009 harassment complaint were filed for the purpose of intimidating or coercing Ms. Bremsak with respect to her pursuing the original complaints before the PSLRB or her filing additional complaints. Ms. Bremsak and her representative believe that to be the case, but there is no reality about that belief. To the contrary, it appears that it is Ms. Bremsak who filed the retaliation complaint on June 29, 2009, shortly after she was notified of the April 2009 harassment complaints on April 9, 2009 (Exhibit R-3, Tab 49, page 540) and the June 2009 harassment complaint on June 11, 2009 (Exhibit R-3, Tab 49, page 553), as a form of retaliation against the members of the Vancouver Branch Executive for having filed the April 2009 harassment complaints and the June 2009 harassment complaint. I therefore consider her filing the retaliation complaint abusive and detrimental to the pursuit of mutual respect and harmonious labour relations, which are principles that underlay the labour-relation regime set out in the Act.

456 The retaliation complaint and the related application for consent to prosecute are dismissed.

C. Five-year suspension complaint and related application for consent to prosecute

457 Ms. Bremsak filed the five-year suspension complaint against the decision of the Institute’s Executive Committee to suspend her from membership in the Institute. That decision was made based on Mr. Mattern’s investigations of the April 2009 harassment complaints and the June 2009 harassment complaint that had been filed by members of the Vancouver Branch Executive in relation to Ms. Bremsak’s conduct. Ms. Bremsak believed that her suspension was a breach of paragraphs 188(b), (c), (d) and (e) of the Act. I will now restate as follows the relevant provisions of section 188 of the Act that I must consider in deciding this complaint:

188. No employee organization and no officer or representative of an employee organization or other person acting on behalf of an employee organization shall

…

(b) expel or suspend an employee from membership in the employee organization or deny an employee membership in the employee organization by applying its membership rules to the employee in a discriminatory manner;

(c) take disciplinary action against or impose any form of penalty on an employee by applying the employee organization’s standards of discipline to that employee in a discriminatory manner;

(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

(e) discriminate against a person with respect to membership in an employee organization, or intimidate or coerce a person or impose a financial or other penalty on a person, because that person has

(i) testified or otherwise participated or may testify or otherwise participate in a proceeding under this Part or Part 2,

(ii) made an application or filed a complaint under this Part or presented a grievance under Part 2, or

(iii) exercised any right under this Part or Part 2.

458 In examining the five-year suspension complaint, it is prudent to keep in mind the context of Bremsak 11 (civil contempt charges). In that case, the Federal Court was tasked with determining whether the Institute had failed to comply with Bremsak 2 (original complaints). The Institute argued before the Court that it had a legitimate reason for not reinstating Ms. Bremsak into her elected offices, as Mr. Bremsak’s membership in the Institute had been suspended for five years following Mr. Mattern’s investigations of the April 2009 harassment complaints and the June 2009 harassment complaint. The Court made no findings about the validity of the April 2009 harassment complaints and the June 2009 harassment complaint or about the validity of the decision of the Institute’s Executive Committee to suspend Ms. Bremsak’s from membership in the Institute. However, the Court offered the following comments at para 82-83:

[82] These are serious questions raised about the validity of the suspension. I list the most evident ones:

1. the fact the suspension from membership was to take place immediately;
2. the fact that no hearing or submissions were received by the Executive Committee before the sanction was imposed;
3. the question whether the Executive Committee had the authority to suspend the membership of a member rather than the Board of Director’s has been raised;
4. the substantive question as to the scope of the concept of harassment in the particular context of the facts alleged is in issue;
5. the proportionality of the sanction when it is considered that the allegations which were found well founded, were similar and made by five members of the Vancouver Branch is a question mark;
6. the fact the applicant was not able to comment on the final investigation reports before decision was made is an issue.

[83] By raising these questions, I must not be taken as having decided the merits of the Institute’s decision. The Institute had the right to investigate and to discipline Ms. Bremsak. The allegations against her and her husband were serious. The question is whether they amounted to harassment, and whether the penalty and its timing were reasonable and proportioned.

[Sic throughout]

[Emphasis in the original]

459 I wish to address each of those questions.

1. Immediacy of the five-year suspension

460 Generally, it makes sense for an organization to deal with harassment as quickly as possible, as being suspected of harassment is a disruptive life event. The Institute moved quickly and formally to have the April 2009 harassment complaints and the June 2009 harassment complaint investigated by a neutral third party. It retained Mr. Mattern on May 4, 2009 to investigate the April 2009 harassment complaints and the June 2009 harassment complaint. Further, Ms. Bremsak was informed at the outset of the seriousness of the June 3, 2009 incident at the Old Bavaria Haus Restaurant by a letter from Mr. Grenville-Wood to Ms. Bremsak’s representative dated June 8, 2009 (Exhibit R-3, Tab 58, pages 600 and 601). After referring to this incident, Mr. Grenville-Wood stated:

…

It is deplorable to note that the intimidation tactics and threats made against all members duly in attendance at that meeting led to the planned business of those branches being abandoned on this occasion.

We are hereby advising you that such conduct is unacceptable and will not be tolerated by the Institute. Any further attempts to intimidate other members of the Institute or otherwise disrupt the business of the Institute will result in the Institute seeking lawful means to have you or your client ejected from the premises of any function organized by the Institute.

…

461 Further, I note that it is not unusual for a suspension to take affect immediately after it is pronounced. This is consistent with the common practice in labour relations for disciplinary suspensions to begin immediately upon their pronouncement. Employers generally fix the start of a suspension, without consultation with the employee to be suspended. By itself, immediacy does not bear on the validity of an otherwise justified suspension.

462 In this case, Ms. Bremsak cannot claim to have been taken by surprise by the decision of the Institute’s Executive Committee to suspend her from membership in the Institute, as it took time for Mr. Mattern to conduct the investigations, to write his investigation reports (Exhibits R-2, Tab 43, pages 464 to 514-52, R-1, Tab 14, pages 42 to 58, R-2, Tab 44, pages 515 to 530-26, and R-2, Tab 45, pages 531 to 534) and for the Executive Committee to make its decision.

2. Lack of opportunity to comment on the final investigation reports and to make submissions and be heard by the Institute’s Executive Committee

463 The Federal Court noted at paragraph 82 of Bremsak 11 (civil contempt charges) the issue that “… no hearing or submissions were received by the Executive Committee before the sanction was imposed …” and that Ms. Bremsak “… was not able to comment on the final investigation reports before decision [sic] was made …” Respectfully, the Institute is entitled to adopt its own policies to deal with harassment complaints and to discipline its members. It is entirely legitimate for the Institute to have a process to resolve such disputes. I do not view the Harassment Policy or the 2009 Dispute Resolution Policy as violating section 188 of the Act. In my view, the Harassment Policy and the 2009 Dispute Resolution Policy represent a modern approach to resolving harassment disputes and to bargaining agent discipline. With all deference, bargaining agents are not courts and the Institute is not obliged to adopt a process that mirrors the requirements of the judicial process. The concept of a hearing before the membership, as suggested by Ms. Bremsak, is something that a bargaining agent could possibly implement, if it chooses too. However, the Institute did not choose that conflict resolution model and it is not for a panel of the PSLRB to impose such a form of decision making on the Institute. A panel of the PSLRB should be loath to interfere with the administration of the internal affairs of a bargaining agent.

464 In my view, there was nothing discriminatory, or even arbitrary or otherwise unreasonable, about the dispute resolution process followed by the Institute to reach a decision with regard to the April 2009 harassment complaints and the June 2009 harassment complaint. I note that procedural fairness or natural justice does not require a full trial inter partes (between the parties) and, with all due respect, I believe that the model adopted by the Institute for dealing with discipline in this case had sufficient procedural fairness to provide for a determination of the dispute on its merits. I note that Ms. Bremsak knew the case against her and was given a full opportunity to participate in Mr. Mattern’s investigations.

465 Ms. Bremsak argued that she was not provided with the appropriate procedure. The only support for her allegation are her representative’s emails and his submissions indicating that he was confused by the applicable process. Ms. Bremsak’s representative did not give evidence; nor was he subject to cross-examination. Had he chosen to give evidence, he could have been cross-examined on a variety of issues, including his alleged confusion. The evidence before me shows that Ms. Bremsak was provided with a copy of the 2009 Dispute Resolution Policy or a reference to the policy at the following times:

• when a letter of April 9, 2009 from Mr. Grenville-Wood advised her of the April 2009 harassment complaints (Exhibit R-3, Tab 49, pages 540 to 552, particularly pages 550 to 552);
• when it was referenced in a letter of June 29, 2009 from Mr. Grenville-Wood (Exhibit R-3, Tab 52, page 561);
• when it was referenced in a letter of July 15, 2009 from Mr. Grenville-Wood (Exhibit R-3, Tab 52, page 562) in which she was referred to the 2009 Dispute Resolution Policy; and
• when it was referenced in the suspension letter of October 20, 2009.

466 Ms. Bremsak’s representative appears to have a gift for creating problems. A good example is his attempt to frustrate the June 2009 harassment complaint investigation process by seeking the recovery of travel expenses when Ms. Mattern was to interview Ms. Bremsak by telephone at her residence, without the need for travel. I considered all the emails exchanged between Mr. Mattern, Mr. Gillis and Ms. Bremsak’s representative about the June 2009 harassment complaint investigation. I also considered the testimony of Mr. Gillis and Ms. Bremsak. I find that, based on my review of those emails, found primarily in Exhibit G-1, Tabs F to I, Ms. Bremsak failed to participate fully in the June 2009 harassment complaint investigation in that she failed to attend meetings about the June 2009 harassment complaint. The Institute was prepared to pay her salary for her to attend. It was not prepared to pay her expenses to attend the meetings, as they were to be conducted at her home, or her salary to prepare for them. In my view, the Institute was not obliged to pay her or to reimburse her for any costs incurred or salary for participating in the investigations. In my view, her representative’s comments that she would have participated had her expenses been paid were disingenuous. My view is that Ms. Bremsak deliberately did not participate, to frustrate the June 2009 harassment complaint investigation.

467 Although Ms. Bremsak was invited to participate in the harassment investigations, I find that she chose not to participate fully in the investigation of the June 2009 harassment complaint and that her conduct and the conduct of her representative during that investigation were unreasonable. Further, Ms. Bremsak was given a chance to comment on the draft investigation reports about the April 2009 harassment complaints and the June 2009 harassment complaint (Exhibits R-2, Tab 40, pages 324 to 390, and R-2, Tab 41, pages 391 to 461), as per the 2009 Dispute Resolution Policy. She had an opportunity to comment on the materials collected by Mr. Mattern and on his findings before he finalized them. Although Ms. Bremsak chose to not comment on the substance of the allegations of harassment made against her, it is clear that she has been heard, as the comments that she made on Mr. Mattern’s draft investigation reports are reflected in the final investigation reports and analysis reports (Exhibits R-2, Tab 43, pages 464 to 514-52, R-1, Tab 14, pages 42 to 58, R-2, Tab 44, pages 515 to 530-26, and R-2, Tab 45, pages 531 to 534) that Mr. Mattern provided to the Institute’s Executive Committee for decision.

468 I note further that Ms. Bremsak’s rights that were affected by the decision of the Institute’s Executive Committee to suspend her from membership in the Institute related to the right to engage in politics within the Institute and the right to represent the Institute’s interests to the employer. However, Ms. Bremsak’s right to work (her employment status) and her right to enjoy the benefits of her collective agreement and the representation of the Institute in disciplinary disputes with her employer remain unaffected.

469 Another example of the mastery of Ms. Bremsak’s representative at creating problems is the issue of the appeal process. Ms. Bremsak was clearly informed on a number of occasions of the appeal process to the Institute’s Board of Directors set out in the 2009 Dispute Resolution Policy. Ms. Bremsak’s representative argues that there was a lack of clarity about the appeal process. The only support for that argument was that the outdated 2007 Dispute Resolution Policy was still posted on the Institute’s website. I note that, at the time, the Institute’s website was showing the following disclaimer notice (Exhibit R-3, Tab 70, page 673):

This Web site [sic] is intended to provide information to PIPSC members. While every effort is made to provide accurate and current information, no responsibility is assumed for errors or omissions. Documents referred to are intended for information purposes only and should not be used as an authority.

I accept Ms. Roy’s testimony about her discovery of the outdated 2007 Dispute Resolution Policy posted on the Institute’s website and the steps that she took to post the 2009 Dispute Resolution Policy instead. I find that the Institute had no intention to mislead Ms. Bremsak about her appeal rights. That the 2007 Dispute Resolution Policy was still posted on the Institute’s website can best be characterized as inadvertence and did not deprive Ms. Bremsak of her right to appeal the decision of the Institute’s Executive Committee to the Institute’s Board of Directors or change the process to file that appeal.

470 The 2009 Dispute Resolution Policy provides for an appeal to the Institute’s Board of Directors against the decision of the Institute’s Executive Committee. That right includes the right to make written submissions in support of the appeal. I have already found that Ms. Bremsak chose to not file an appeal. I place no weight on the assertions of her representative, in argument, of confusion about the appeal process when there is clear documentation that Ms. Bremsak was provided with the 2009 Dispute Resolution Policy or a reference to it on a number of occasions. One cannot speculate as to what the Board of Directors might have done had Ms. Bremsak filed an appeal. In my view, her failure to exercise her right of appeal completely disposes of any alleged lack of natural justice in the process followed by the Institute in this case: see Saunders. Further, I note that paragraph 190(3)(a) of the Act provides that there is no right to file with the PSLRB a complaint alleging a violation of paragraph 188(b) or (c) unless the employee organization’s appeal process is exhausted:

190. (3) Subject to subsection (4), no complaint may be made to the Board under subsection (1) on the ground that an employee organization or any person acting on behalf of one has failed to comply with paragraph 188 (b) or (c) unless

(a) the complainant has presented a grievance or appeal in accordance with any procedure that has been established by the employee organization and to which the complainant has been given ready access;

(b) the employee organization

(i) has dealt with the grievance or appeal of the complainant in a manner unsatisfactory to the complainant, or

(ii) has not, within six months after the date on which the complainant first presented their grievance or appeal under paragraph (a), dealt with the grievance or appeal; and

(c) the complaint is made to the Board not later than 90 days after the first day on which the complainant could, in accordance with paragraphs (a) and (b), make the complaint.

I note that paragraph 190(3)(a) of the Act was not referred to or argued at the hearing before me. Independent of this paragraph, however, it is my view that Ms. Bremsak should have exhausted the Institute’s dispute resolution process before filing the five-year suspension complaint. Here, Ms. Bremsak was given ready access to the process of appeal to the Board of Directors. From the point of view of sound labour relations, internal conflict processes should be exhausted before one seeks intervention by a third party.

3. Authority of the Institute’s Executive Committee to impose the five-year suspension 

471 In Bremsak 11 (civil contempt charges), at para 82, the Federal Court noted that“… the question [of] whether the Executive Committee had the authority to suspend the membership of a member rather than the Board of Director’s [sic] has been raised …”The evidence in this case reveals that, under the 2009 Dispute Resolution Policy, which was applicable when the April 2009 harassment complaints and the June 2009 harassment complaint were filed, the appropriate body to make a determination was the Institute’s Executive Committee. I note that the 2009 Dispute Resolution Policy was approved at the January 17, 2009 Board of Directors meeting.

472 Ms. Bremsak argued that the 2009 Dispute Resolution Policy is a lesser set of rights in comparison with the 2007 Dispute Resolution Policy. That may be, but the 2007 Dispute Resolution Policy has been changed and modernized and has been replaced by the 2009 Dispute Resolution Policy. There is no evidence before me that the changes were done in a discriminatory manner, or even in an arbitrary of otherwise unreasonable manner. Further, there is no evidence before me that the changes were targeted at Ms. Bremsak.

4. Alleged conflict of interest on the part of the Institute’s Executive Committee and the Institute’s Board of Directors

473 Ms. Bremsak alleged that the Institute’s Executive Committee and the Institute’s Board of Directors were in a conflict of interest. I disagree. She might have been well-known to the members of the Executive Committee. Similarly, members of the Board of Directors were likely aware of her existence because members of the Vancouver Branch Executive had complained in the past about her conduct. The mere fact that Ms. Bremsak named members of the Executive Committee in other proceedings before the PSLRB or before the courts (i.e., the civil contempt charge) is not sufficient to demonstrate, on a balance of probabilities, that members of the Executive committee “… lacked the will to reach an honest conclusion about the facts in her case …”: see Horsley, Beaven v. Telecommunications Workers Union. (1996), 100 di 96 (C.L.R.B.),and Tomko.

5. Scope of harassment and its factual context

474 In Bremsak 11 (civil contempt charges), the Federal Court noted that there was a substantive question as to the scope of the concept of harassment in the context of the April 2009 harassment complaints and the June 2009 harassment complaint.

475 I have set out in detail the evidence of Ms. Kerr, Mr. Kendell, Mr. Jansen, Mr. Peters and Mr. Ansari. I found the evidence from each of them precise, credible and reliable. Their oral testimonies at the hearing were consistent with the documents written at the time of the incidents at issue. Their evidence showed a consistency over time from initial documentary evidence to statements provided to Mr. Mattern during the investigations to testimonies at the hearing. They were all challenged vigorously in protracted cross-examinations; no significant damage was done to their credibility and no admissions were obtained from them to contradict their examinations-in-chief. I accept as genuine and credible the testimony of each of those witnesses.

476 Mr. Mattern’s investigations were thorough. From a review of his final investigation reports (Exhibits R-2, Tab 43, pages 464 to 514-52), and investigation analysis report (Exhibit R-1, Tab 14, pages 42 to 58) for the April 2009 harassment complaints and final investigation report (Exhibit R-2, Tab 44, pages 515 to 530-26) and investigation analysis report (Exhibit R-2, Tab 45, pages 531 to 534) for the June 2009 harassment complaint, it is clear that he looked at all the information that he was provided. He reached conclusions rationally connected to the evidence that he collected in the interviews and documents provided by the witnesses.

477 Mr. Mattern was bound to apply the Harassment Policy when assessing whether Ms. Bremsak’s conduct amounted to harassment. I accept Mr. Gillis’ testimony that the definition of “harassment” has not changed over time. Ms. Bremsak argued that Mr. Mattern should have applied the Black’s Law Dictionary definition of “harassment”. Later in her submissions she advanced the definition in Sobeys Inc., Retail Support Centre – Whitby. There are many definitions of harassment, and each organization can have its own. Ms. Bremsak does not get to choose which harassment definition applies to the April 2009 harassment complaints and the June 2009 harassment complaint. I note that it is not the task of a panel of the PSLRB when considering a complaint under section 188 of the Act to select the policies that an organization should apply during a harassment investigation. This panel has to determine in this case only whether the Harassment Policy and the 2009 Dispute Resolution Policy have been applied to Ms. Bremsak in a discriminatory manner. Clearly, it was not.

478 I note that the definition of “harassment” as set out in the Harassment Policy is wide. It reads as follows:

3. Definitions

Harassment is any unwelcome or unwanted action by any person(s) that occurs in an Institute-related setting (such as Institute office, other worksites, business-related trips, lunches or social functions) that humiliates, insults, demeans, embarrasses or degrades. The action can be verbal or physical, on a single or repeated basis.

Unwelcome or unwanted in this context means any actions which the person knows, or ought reasonably to know, are not desired by the victim of harassment. The courts have determined reasonableness from the point of view of the victim. In other words, unwelcome and unwanted behaviour is considered harassment based on what a reasonable person would find to be harassment.

That definition is capable of embracing threats to initiate legal proceedings and threats to commence quasi-criminal prosecutions involving fines made to members of the Vancouver Branch Executive, who had no power to rescind the decision of the Institute’s Board of Directors to suspend Ms. Bremsak from elected offices.

479 Ms. Bremsak argued that the failure to reproduce a paragraph break in the definition of “harassment” quoted in Mr. Mattern’s final investigation reports somehow impacted the scope of the harassment investigations. That argument is indefensible.

480 Ms. Bremsak also argued that intimidation, bullying and threats are not part of the definition of “harassment” and that they are instead simply unwanted conduct. That view is disingenuous. The scope of the definition of “harassment” in the Harassment Policy is wide enough to include intimidation, bullying and threatening as an action “ … that humiliates, insults, demeans, embarrasses or degrades…”

481 Ms. Bremsak’s interactions with members of the Vancouver Branch Executive were a form of intimidation and bullying. She argued that she did not humiliate, insult, demean, embarrass or degrade any Institute members. Harassment can include intimidation, bullying and threatening, as the focus is on any conduct not just a shopping list of prohibited acts. The focus is on the likely impact on the recipient and not on Ms. Bremsak’s intentions. However, I do not accept any of Ms. Bremsak’s evidence of her intentions. In particular, I reject that there is any semblance of reality to her suggestion that she was simply warning Vancouver Branch Executive members in her communications. That is simply inconsistent with “… the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions …”: see Faryna. My view is that she was blinded by what she considered the justice of her cause. She was prepared to do whatever it took to get what she wanted, including threatening others.

482 The evidence clearly shows that, on a balance of probabilities, Ms. Bremsak engaged in a pattern of harassing conduct between the date of her suspension from elected offices on April 9, 2008 (Exhibit R-1, Tab 19, page 126) and the June 3, 2009 meeting at the Old Bavaria Haus Restaurant. The incidents were largely uncontested by Ms. Bremsak and include the following:

• a telephone conversation on April 11, 2008 between Ms. Bremsak, Ms. Kerr and Mr. Kendell in which Ms. Bremsak stated that they would become accomplices of the Institute’s Board of Directors, that they would have an imminent problem if the Policy Related to Members and Complaints to Outside Bodies were followed and that they should disregard the decision of the Board of Directors to suspend her from elected offices;
• Ms. Bremsak’s April 24, 2008 (16:12) email entitled “SHAME ON YOU!” (Exhibits R-1, Tab 18, page 116, R-2, Tab 40, page 371, and R-2, Tab 43, page 514-47);
• Ms. Bremsak’s March 22, 2009 email requesting the Vancouver Branch Executive to appoint her a delegate to the 2009 Regional Council meeting (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30), indicating that, were Ms. Bremsak not appointed as a delegate, she would have no choice but to file a new complaint with the PSLRB in which she would name individual Vancouver Branch Executive members who could not prove that they supported her or who voted against her delegate status;
• a March 2009 conversation initiated by Ms. Bremsak to Mr. Ansari in which she threatened to name him in a complaint with the PSLRB if he did not nominate her as a delegate to the 2009 Regional Council meeting (Exhibit R-1, Tab 28, page 152); and
• the June 3, 2009 incident at the Old Bavaria Haus Restaurant in which Ms. Bremsak threatened Vancouver Branch Executive members with quasi-criminal prosecution and a $1000 fine per member for failing to reinstate her into her position as the president of the Vancouver Branch and to appoint her as a delegate to the 2009 Regional Council meeting.

483 Ms. Bremsak argued that Mr. Mattern’s failure to consider the original complaints, Veillette 2 (indefinite administrative suspension from elected office) and Bremsak 2 (original complaints) affected the validity of the decision of the Institute’s Executive Committee to suspend her from membership in the Institute. I note that Mr. Mattern was aware of the original complaints. His task was not to determine the legitimacy of the Institute’s policies or of Ms. Bremsak’s suspension from elected offices. He was tasked with investigating the April 2009 harassment complaints and the June 2009 harassment complaint. His focus was to consider Ms. Bremsak’s conduct and its impact on the members of the Vancouver Branch Executive and to apply the Institute’s definition of “harassment” in the Harassment Policy. The fact that Ms. Bremsak was challenging her suspension from elected offices before the PSLRB and in the courts did not afford her any defence on the facts of whether she harassed the Vancouver Executive Branch members.

484 The rulings in Veillette 2 (indefinite administrative suspension from elected office) and in Bremsak 2 (original complaints) about the Policy Related to Members and Complaints to Outside Bodies were not relevant considerations for Mr. Mattern when he was determining whether the April 2009 harassment complaints and the June 2009 harassment complaint were founded. Ms. Bremsak was obliged to behave with a minimum level of decorum in her dealings with other Institute members, regardless of her conflict with the Institute. That minimum level of decorum was not waived because she filed the original complaints and she was challenging her suspension from elected offices. One might think that that situation would have called for heightened sensitivity on her part to ensure that her obsession with being reinstated into her elected offices did not overwhelm her duty to behave with civility towards other Institute members.

485 Apart from the issue of harassment, I note that the conduct of Ms. Bremsak’s representative at the June 3, 2009 meeting at the Old Bavaria Haus Restaurant was objectionable on a number of counts. First, as her representative, he was in direct contact and was communicating with Ms. Kerr and Mr. Kendell, also parties to the original complaints, about the nature of the dispute. Ms. Kerr and Mr. Kendell were represented by counsel at that time. The document that Ms. Bremsak’s representative was referring to was Veillette 2 (indefinite administrative suspension from elected office). Second, he misrepresented the decision of a panel of the PSLRB in Veillette 2 (indefinite administrative suspension from elected office) as a Federal Court order. Third, he misrepresented the contents of Veillette 2 (indefinite administrative suspension from elected office) as supporting Ms. Bremsak’s reinstatement into her elected offices, when a panel of the PSLRB had declined to reinstate Mr. Veillette into his. Fourth, Ms. Bremsak’s representative misrepresented Veillette 2 (indefinite administrative suspension from elected office) as immediately binding on individual members of the Vancouver Branch Executive such that they could be subject to prosecution. Finally, Ms. Bremsak’s representative threatened members of the Vancouver Branch Executive with quasi-criminal prosecution unless Ms. Bremsak was reinstated into her position as Vancouver Branch president.

6. Proportionality of the five-year suspension

486 The Federal Court noted in Bremsak 11 (civil contempt charges), at para 82, that the “proportionality of the sanction” was an issue. I note that Ms. Bremsak argued that a five-year suspension was too long.

487 In my view, the Institute advanced in the suspension letter the following cogent reasons for suspending Ms. Bremsak that bear repeating:

…

The behaviour you have demonstrated represents a pattern of threats and intimidation of members that has no place in our organization. Your actions have created a toxic environment and have led otherwise committed members to question their involvement with the Institute. This behaviour will not be condoned or tolerated by the Institute.

…

488 One of my main concerns is that Ms. Bremsak appears to have been obsessed in her fight with the Institute to the point that she did not recognize the consequences of being suspended from elected offices. That was extremely unusual and unreasonable behaviour, as noted by a panel of the PSLRB in Bremsak 2 (original complaints). She maintained that behaviour for more than a year. The Institute’s main function is to deal with labour relations between employees and their employer. That can be taxing, and it requires a devoted volunteer base. Not everyone is prepared to volunteer their services, and bargaining agent officials often have thankless jobs. The Institute’s main concerns in imposing Ms. Bremsak’s five-year suspension from membership in the Institute were the toxic environment created by her conduct and the erosion of its volunteer base as the result of her harassing behaviour. I note that her conduct was unreasonable and had been so for some time. Institute members have expressed that they were unable to work with her and that they would quit if they had to.

489 In my view, Ms. Bremsak’s threat to initiate proceedings to secure a civil consequence — the lifting of her suspension from elected offices — is serious. Threats of prosecution are even more serious. I note that threatening to initiate a criminal prosecution or a quasi-criminal proceeding is extremely serious. Threatening to bring quasi-criminal proceedings to secure a civil advantage violates the public order. It is tantamount to extortion: see Cox, and Willets. Sometimes it can result in a stay of a process if it is deemed an abuse of process.

490 In Durham (Regional Municipality), an arbitrator considered whether a threat by one employee to sue another could be considered harassment. The arbitrator found that an attempt to coerce someone to withdraw a harassment complaint merited some discipline and stated the following:

…

I view the letter from the grievor’s lawyer to Ms. Mlynek as an inappropriate attempt on the part of the grievor to force Ms. Mlynek, by way of a threat of being sued, to withdraw her complaint about his conduct. Employees are obviously entitled to use the civil courts to enforce their real or perceived legal rights. It was not appropriate, however, for the grievor to use the threat of a legal suit to attempt to coerce Ms. Mlynek into withdrawing a legitimate complaint related to sexual harassment…

…

I note that Durham (Regional Municipality) stands for the proposition that it is inappropriate for a party to use the threat of a lawsuit, or by analogy a threat to complain to the PSLRB under section 188 of the Act, to extract a civil benefit — in these matters, political support for Ms. Bremsak’s ongoing fight with the Institute.

491 The five-year suspension from membership in the Institute does not affect Ms. Bremsak’s right to work, to be represented by the Institute in grievances with the employer or to participate in all the benefits that a bargaining agent secures for its members. In my view, because of the obvious difficulties she has demonstrated in interacting with other members without harassing them, a suspension from membership is an appropriate and proportional response to her escalating behaviour over more than a year. In my view, a sufficient cooling-off period was required.

492 In this case, the political interaction of Ms. Bremsak with some Vancouver Branch Executive members created a toxic environment. In my view, a remedial approach to eliminating a toxic environment created through harassment is to remove the source of the harassment for a period sufficient to eliminate or reduce the impact of the harassment. Time can heal wounds. It at least provides an opportunity for a harasser to reflect and perhaps adjust her behaviour. At this point, approximately 18 months are left in Ms. Bremsak’s suspension from membership, which will end on October 20, 2014. In my view, a five-year suspension from membership was not too long. It is within the range that the Institute’s Executive Committee could have considered. The Executive Committee appeared to consider only relevant matters and nothing irrelevant.

493 Had I been on the Institute’s Executive Committee, I might have also required that, in addition to a suspension, Ms. Bremsak take training about the Harassment Policy and I would have invited her to apologize to those whom she harassed. Obviously, that approach is more serious than that taken by the Executive Committee.

494 Had I been on the Institute’s Executive Committee, one of my concerns might also have been the escalation of Ms. Bremsak’s conduct during the hearing of the original complaints, from telephone calls to emails to disrupting meetings in public places, such as a restaurant in which the disruption was in plain view of the public and in which threats to prosecute were uttered. Rather than awaiting the decision of a panel of the PSLRB, she escalated the conflict further, even though she knew that she was suspended from elected offices. Clearly, the final straw was the June 3, 2009 incident at the Old Bavaria Haus Restaurant. The conduct of Ms. Bremsak and her representative demonstrated that they had no trust or respect for the Vancouver Branch Executive. Anyone sanctioning bringing a tape recorder to a meeting is exhibiting a substantial lack of trust. The Vancouver Branch Executive members had reached their tolerance level of Ms. Bremsak’s bullying and threatening behaviour after her March 22, 2009 email requesting the Vancouver Branch Executive to appoint her a delegate to the 2009 Regional Council meeting (Exhibits R-1, Tab 6, page 28, and R-2, Tab 43, page 514-30).

495 It is not for a panel of the PSLRB to act as a final arbiter of all disputes between members of an employee organization. A panel of the PSLRB does not sit as an appeal body over the Institute’s decision making. My role under section 188 of the Act is more limited than that.

496 There is largely no dispute on the facts that amount to misconduct by Ms. Bremsak. All the witnesses were vigorously cross-examined. Ms. Bremsak’s main defence was that she should not have been suspended from elected offices under the Policy Related to Members and Complaints to Outside Bodies, which justified her conduct. Regardless of whether she was correct about the Policy Related to Members and Complaints to Outside Bodies, as she was given Bremsak 2 (original complaints), she was not relieved from her obligation to not harass other Institute members. Not only did she harass them, but she also used the PSLRB’s processes improperly in the filing of her non-reinstatement complaint and in filing the retaliation complaint to retaliate against other Institute members who had filed the April 2009 harassment complaints and the June 2009 harassment complaint.

497 In my view, there was a rational reason for the five-year suspension from membership in the Institute that was connected to Ms. Bremsak’s misconduct. She behaved in a harassing manner towards other Vancouver Executive members over a period of more than a year. Her conduct escalated over time. A cooling-off period was required. I find that Ms. Bremsak received no discriminatory treatment, or even arbitrary or otherwise unreasonable treatment, in the harassment investigations or in the application of the 2009 Dispute Resolution Policy to her.

498 I therefore dismiss the five-year suspension complaint and the related application for consent to prosecute.

499 For all of the above reasons, the PSLRB makes the following order:

V. Order

500 I declare that Ms. Bremsak abused the complaint process by filing the non-reinstatement and retaliation complaints.

501 The complaintsand the applications for consent to prosecute are dismissed.

March 12, 2013.

Paul Love,
a panel of the Public Service
Labour Relations Board

APPENDIX I

PSLRB File Nos.	Respondents
561-34-404 and 597-02-03	Professional Institute of the Public Service of Canada
	Gary Corbett
	Helene Rogers
	Don Burns
	David Gray
	Nita Saville
	Marilyn Best
	Robert Bowie-Reed
	Yvon Brodeur
	Richard Depuis
	Paul Godin
	Robert Hunter
	Dan Jones
	Sean O’Reilly
	Joe Podrebarac
	Al Ravjiani
	Kathleen Kerr
	Geoff Kendell
	Stephen Lee
	Siddiq Ansari
	Geoffrey Grenville-Wood
	Isabelle Roy
	Evan Heidinger
561-34-405 and 597-02-04	Kathleen Kerr
	Geoff Kendell
	Quinton Jansen
	Terry Peters
	Siddiq Ansari
561-02-430 and 597-02-09	Professional Institute of the Public Service of Canada
	Kathleen Kerr
	Geoff Kendell
	Siddiq Ansari
	Stephen Lee
	Quinton Jansen
	Terry Peters
	Gary Corbett
	Don Burns
	David Gray
	Al Ravjiani
	Helene Rogers
	Marilyn Best
	Robert Bowie-Reed
	Yvon Brodeur
	Richard Depuis
	Robert Hunter
	Dan Jones
	Pascal Joseph
	Sean O’Reilly
	Joe Podrebarac
	Nita Saville
	Geoffrey Grenville-Wood
	Isabelle Roy

APPENDIX II

List of documents ruled inadmissible on August 22, 2011:

• Exhibit G-1, Tab 13, an email from Ms. Bremsak’s representative to Ms. Woodstock dated September 1, 2009, asking the PSLRB to file an order in the Federal Court;
• Exhibit G-1, Tab 14, the Institute’s response to that request;
• Exhibit G-1, Tab 15, Bremsak 4 (filing of Bremsak 2 (original complaints) in the Federal Court);
• Exhibit G-1, Tab 17, the Institute’s application for judicial review of Bremsak 2 (original complaints);
• Exhibit G-1, Tab 18, the Institute’s notice of discontinuance of its application for judicial review of Bremsak 2 (original complaints);
• Exhibit G-1, Tab 41, email correspondence of November 5, 2010;
• Exhibit G-1, Tab 47, exchange of emails of January 4 to 8, 2010 about Ms. Bremsak not being invited to the January 25, 2010 SP Vancouver Sub-Group Executive Meeting;
• Exhibit G-1, Tab 48, a portion of the transcript of Ms. Bremsak’s cross-examination in the context of civil contempt charge proceedings in the Federal Court;
• Exhibit G-1, Tab 49, Bremsak 5 (order to appear to respond to civil contempt charges);
• Exhibit G-1, Tab E, a request for disclosure of documents made by Mr. Grenville-Wood of September 8, 2008 in the proceedings leading to Bremsak 2 (original complaints);
• Exhibit G-1, Tab P, a disclosure request dated May 2, 2008 in the proceedings leading to Bremsak 2 (original complaints);
• Exhibit G-1, Tab R, Ms. Roy’s affidavit in the civil charge contempt proceedings in the Federal Court;
• Exhibit G-1, Tab S, Mr. Roy’s supplemental affidavit in the civil charge contempt proceedings in the Federal Court;
• Exhibit G-1, Tab T, minutes of the Institute’s Executive Commission meeting on December 15, 2009 held two months after the decision to suspend Ms. Bremsak, dealing with the posting of her reinstatement notice pursuant to Bremsak 2 (original complaints); and
• Exhibit G-1, Tab U, the transcript of Ms. Roy’s cross-examination on her affidavit and supplemental affidavit in the civil charge contempt proceeding in the Federal Court.