Date:  20140811

File:  561-02-682

 

 Citation:  2014 PSLRB 75

Public Service Labour Relations Act

Before a panel of the Public Service Labour Relations Board

Between

 

John King and Dianne Bennett

 

Complainants

 

and

 

Public Service Alliance of Canada

 

Respondent

Indexed as

King v. Public Service Alliance of Canada

 

In the matter of a complaint made under section 190 of the Public Service Labour Relations Act

Before:  Augustus Richardson, a panel of the Public Service Labour Relations Board

For the Complainants:  Themselves

For the Respondent:  Krista Devine, Public Service Alliance of Canada

Decided on the basis of written submissions ,

filed April 22, May 9 and June 2, 2014.

REASONS FOR DECISION

I.  Introduction

[1]  On April 22, 2014, Dianne Bennett and John King (“the complainants”) filed separate but parallel complaints against the Public Service Alliance of Canada (PSAC or “the bargaining agent”) with the Public Service Labour Relations Board (“the Board”). I say parallel because the complaint of Ms. Bennett referenced and relied upon an attached document. The complaint of Mr. King followed form with that of Ms. Bennett, except that it was signed by both of them. Mr. King’s complaint otherwise relied upon the same attached document, which was signed by Mr. King, “as representative of Local 024 at all relevant times,” and then again by Mr. King and Ms. Bennett, as “members” (which I assume was intended to mean “members of Local 024”). That document was also attached to the complaint of Mr. King, which was also signed by Ms. Bennett. In view of the parallel nature of the two complaints it was my opinion that the complaints, while technically separate, ought to be dealt with together as one complaint under one PSLRB number. Formal joinder of the two complaints, or the assignment of two separate Board numbers, was accordingly not thought necessary.

[2]  In their complaints, Mr. King and Ms. Bennett alleged that the bargaining agent had committed an unfair labour practice within the meaning of section 185 of the Public Service Labour Relations Act (“the Act”), pursuant to paragraph 190(1)(g). In essence, their complaints were that

a. the bargaining agent had failed in its duties to them, and

b. the bargaining agent had failed in its duties to the members of its Local 024.

 

[3]  The bargaining agent filed a response to the complaints. It objects to the Board’s jurisdiction to hear the complaints on the ground that they were filed out of time. The Treasury Board of Canada Secretariat (“the Treasury Board”) filed an unsolicited response dated May 8, 2014. Since the Treasury Board was not a party – and had not applied for intervenor status – my inclination would have been to ignore the response. However, Mr. King filed a reply to that response, dated May 26th. I have accordingly reviewed the Treasury Board’s response and Mr. King’s reply simply to ensure that I had a complete understanding of Mr. King’s position on the issue of jurisdiction.

II.  Materials reviewed

[4]  The facts upon which my decision is based are drawn from the following materials:

a. submissions filed with the Board, which comprise the following:

 

i. the original complaints, filed on April 22, 2014,

ii. a letter dated May 8, 2014, from Daniel Trépanier, analyst, Labour Relations, on behalf of the Treasury Board,

iii. correspondence dated May 9, 2014, from Krista Devine, the bargaining agent’s director, Collective Bargaining Branch,

iv. a letter dated May 26, 2014, from Mr. King in response to Mr. Trépanier’s letter, and

v. a letter dated June 2, 2014, from Mr. King and Ms. Bennett in response to Ms. Devine’s letter of May 9, 2014; and

 

b. the following decisions (referenced in the materials filed with the Board) involving Mr. King:

 

i. King v. Deputy Head (Canada Border Services Agency), 2010 PSLRB 125;

ii. King v. Attorney General of Canada, 2012 FC 488; and

iii. King v. Attorney General of Canada, 2013 FCA 131 (application for leave to appeal to the Supreme Court of Canada dismissed; see 2014 CanLII 3503).

 

III.  Background

[5]  Mr. King was a border services officer for the Canada Border Services Agency (“the employer”) at Pearson International Airport in Toronto, Ontario. He was also the president of Local 024 of the Customs Excise Union Douanes Accise (CEUDA), a component of the bargaining agent.

[6]  Mr. King was first suspended and then ultimately terminated in November 2007. The suspension and termination stemmed from the posting and reposting of statements on Local 024’s website. The statements were an outgrowth of events dating to 2006. The employer had taken the position that the statements in question had constituted counselling or procuring illegal work stoppages. Mr. King grieved both the suspension and the termination (“the grievances”).

[7]  On June 5, 2008, the bargaining agent suspended Mr. King from his position as president of Local 024. Nevertheless, the bargaining agent retained Andrew Raven, an experienced, well-known and well-regarded labour lawyer, to represent Mr. King during the hearing process.

[8]  The grievances eventually came on before a Board adjudicator in May and June 2010.

[9]  The hearing covered six days. Additional written submissions were filed in September, October and November 2010. Mr. King’s position was that the statements in issue had not constituted counselling or procuring an illegal work stoppage, that it was not the employer’s business to regulate employees’ activities while engaged as bargaining agent officials and that the attempt to regulate Mr. King’s conduct as a bargaining agent official represented an unjustifiable interference by the employer in the bargaining agent’s activities. He argued as well that rights under the Canadian Charter of Rights and Freedoms (“the Charter”) were in issue, which ought to have affected any assessment of his activities.

[10]  In a decision dated November 29, 2010, the Board adjudicator denied the grievances, upholding both the suspension and the termination.

[11]  That decision was taken on judicial review to the Federal Court. Mr. Raven continued to represent Mr. King. The application was heard on January 27, 2012. For reasons dated April 26, 2012, the application was dismissed. That decision was in turn appealed. Mr. Raven continued to represent Mr. King. The Federal Court of Appeal heard the appeal on May 15, 2013, and dismissed it for reasons dated May 16, 2013.

[12]  On July 30, 2013, Mr. King emailed the bargaining agent about “. . . the PSAC decision regarding the Supreme Court of Canada application and my case.” The bargaining agent replied on the same day, advising that it would proceed “. . . with an application for leave with Andrew Raven as counsel of record, focusing on the grounds most likely to persuade the court that there will be an issue of national importance (the threshold for a SCC leave application).”

[13]  On July 31, 2013, Mr. King advised the bargaining agent that he had “. . . already retained independent counsel on [his] own” and that he “. . . no longer require[d] or desire[d] the services of Andrew Raven or any other counsel provided by the PSAC.” He went on as follows:

As advised by more than one PSAC representative over the past several months, I am now exercising my right as the complainant and will proceed with counsel already retained by myself, with full rights to direct and authorize as the client.

In light of the above, I suggest the PSAC not interfere or proceed with Andrew Raven as counsel of record.

I welcome support from the bargaining agent in other forms and will consider any additional input provided by counsel for the PSAC. This said, it is important to understand that I am prepared to do whatever is required to protect my rights as the accused/convicted, which includes but is not restricted to being represented by counsel of my choice and to have my complaint presented in a manner approved and authorized by me.

[Emphasis in the original]

 

[14]  Mr. King concluded his email by indicating that he was looking forward “. . . to receiving the [bargaining agent’s] comments to [his] past enquiries since May 17^th, in addition to its approval on the above.”

[15]  On August 8, 2013, the bargaining agent replied as follows:

Of course, as we have advised you previously, it remains, as always, your right to retain and instruct your own counsel in regard to applications to the Court in respect of the PSLRB’s decision in your grievance, at your own expense. You do not need PSAC approval in this regard, but I can certainly confirm to you that the PSAC respects your right to proceed in this way if you wish.

In accordance with your express wishes, no further action will be taken by the PSAC in regard to the recent decision of the Federal Court of Appeal.

 

[16]  The Supreme Court dismissed Mr. King’s application for leave to appeal with costs on January 30, 2014.

[17]  On February 21, 2014, the bargaining agent, in the words of the complainants, “. . . failed . . . to represent the matter of costs with the employer when requested by the complainant on the dismissal of the Application for Leave to Appeal.”

[18]  The complaints at issue were then filed with the Board on April 22, 2014, 51 days after the Supreme Court denied the leave to appeal.

IV.  The complaints

[19]  Mr. King filed his complaint “as Representative of LOCAL 024 at all relevant times” and as “member” of the Local; Ms. Bennett filed hers simply as a member of the Local. I note that neither purported to represent the Local as of the date of their respective complaints. Both complaints relied upon the same attached document. The opening three paragraphs of that document summarize their complaints as follows:

This is a complaint respecting the failure of the . . . [bargaining agent] in its representation of John King, union official and President of . . . Local 024, John King and Dianne Bennett of the membership of Local 024, that is a violation pursuant to section 190(1)(g), 185, 187, 188(e)(iii) and 189(1)(b) of the . . . Act.

This case arises from the termination of employment of a union president for an alleged unfair labour practice violation of the PSLRA governing counselling or procuring a union declaration of illegal job action. The Canada Border Services Agency (the “Employer”) undertook its action without filing an unfair labour practice complaint and without the Employer relying on the industrial relations procedures for a declaration of the offense.

The complainants, representative and members of CEUDA at all relevant times, assert that the PSAC failed in its duty of representation to represent the collective and associative rights of members of Local 024 when it failed to present an unfair labour practice complaint to the . . . Board pursuant to Part I of the Act against the Employer as the Employer unjustifiably interfered with the representational rights of a union, and the broader associative rights of all members, including the complainants, and the right of the association to engage in internal communications and expression with respect to matters of great concern in relation to collective bargaining when the Employer terminated the employment of Local 024 Representative John King for an alleged unfair labour practice.

 

[20]  The complaints then detailed some relevant facts, which included the events leading up to Mr. King’s termination in 2007. Included was the observation that the bargaining agent had decided or had failed to decide to file an unfair labour practice complaint against the employer in 2007. The gist of the unfair labour practice complaint that the complainants stated ought to have been filed had to do with their argument that the employer’s decision to discipline Mr. King represented an interference with bargaining agent activities. Also included was the statement that the bargaining agent suspended Mr. King from his position as the president of Local 024 on June 5, 2008, that the bargaining agent advised him in November 2012 that it had not filed an unfair labour practice complaint, and that, in any event, such a complaint had not been necessary.

[21]  The complainants sought a number of remedies in their complaints, including but not limited to the following:

a. a declaration that “. . . the provisions of section 213 of the . . . [Act] resulted in a breach of the Charter Rights of the complainants and the interests of the complainants;”

b. “. . . that, as remedy for [the] violation of Charter rights, the Treasury Board is directed to reinstate to employment the representative to his former position with the Employer;” and

c. “. . . that in the alternative, the PSAC provide the representative with similar responsibilities and remuneration as a representative of Local 024 and that the PSAC make restitution of all lost wages and benefits;”

d. “. . . that an order be made for a representative vote for Local 024 pursuant to section 95 of the PSLRA.”

 

V.  The parties’ positions

[22]  As noted earlier in this decision, there were responses from both the bargaining agent and the Treasury Board. And as earlier noted, the Treasury Board’s response was considered only in the overall context of Mr. King’s position that there was jurisdiction. I accordingly set its position out only in order to provide context for Mr. King’s submissions.”

A.  The Treasury Board’s response

[23]  The Treasury Board’s representative objected to one of the remedies being sought by the complainants, which was for an order reinstating Mr. King. The representative submitted that the Board did not have jurisdiction to grant such a remedy because the Treasury Board was not a party to the complaints. The representative also submitted that the dispute between the employer and Mr. King had already been decided in the proceedings before the Board, the Federal Court, the Federal Court of Appeal and the Supreme Court. I take it to be a submission that the doctrine of issue estoppel would apply to prevent Mr. King from relitigating the issues of his suspension and ultimate termination.

B.  The bargaining agent’s response

[24]  The bargaining agent’s representative noted that the complaints were not clear about how the events affecting Mr. King had any bearing on Ms. Bennett. The representative submitted that, in any event, the complaints were well out of time. A complaint made under subsection 190(1) of the Act has to be filed no later than 90 days after the date on which the complainant knew or ought to have known of the events giving rise to the complaint; see subsection 190(2). In this case, the events in issue dated back to 2007 if not indeed to 2006.

[25]  The bargaining agent representative also pointed out that when Mr. King decided to retain his own counsel in July 2013, the bargaining agent advised him in August 2013 that the cost of doing so would be his own responsibility. That being the case, it would not have been a surprise to him when, in February 2014, the bargaining agent refused to pay the costs associated with the leave application.

[26]  Taking everything together, the bargaining agent representative submitted that the complaints were made well beyond the 90 days specified by subsection 190(2) of the Act for such complaints and that, accordingly, an adjudicator has no jurisdiction to consider them.

C.  The complainants’ replies

[27]  The complainants filed replies to both the Treasury Board and the bargaining agent. So far as can be made out from the replies, the complainants’ position boils down to the following:

a. the Board’s jurisdiction pursuant to section 36 of the Act is broad enough “. . . to grant the remedy requested, but also requires the Board to address any Charter violations that arise in the disputes before it;”

b. the bargaining agent failed

 

. . . to represent and defend the associative and collective rights of the membership [of Local 024] when the employer interfered, without confirming such complaint with the Board, with the Local’s union activities by way of a thirty (30) days suspension and subsequent termination of employment of Local 024’s representative John King;

c. the relevant parties for the complaints are “. . . in fact Ms. Bennett and any other member of Local 024,” and that they “. . . were made aware of the grounds which gave rise to this complaint only after the Supreme Court of Canada’s refusal to hear the on-going [sic] case with respect to the termination of King’s employment;”

d. “The associative and collective rights as affected by the representation in question were, as indicated in the PSAC’s response, unknown until we were made aware of them by sources outside the PSAC after January 31, 2014;”

e. the liability for costs was not the same as the expense of retaining legal counsel; and

f. the complainants’ awareness of their liability for costs did not arise until after the leave application was dismissed.

 

[28]  The complainants closed with a request that the matter proceed to a hearing.

VI.  Analysis and decision

[29]  The following two issues are before me:

a. whether a formal hearing is necessary, and

b. whether the complaints are barred by subsection 190(2) of the Act because they were filed more than 90 days after the complainants knew or ought to have known of the acts they complained of.

 

A.  Should there be a hearing?

[30]  Having considered the detailed summary of events provided by the complainants in the materials filed with the Board, as well as the response materials of the bargaining agent and the complainants, I was satisfied that a hearing was not necessary to render a decision with respect to the bargaining agent’s preliminary objection that these complaints were out of time.

[31]  Objections to the Board’s jurisdiction under subsection 190(2) of the Act are often based on facts for which there is no issue of credibility. When that is the case, there is rarely a good reason to hold a full hearing with viva voce (oral testimony) evidence. In my opinion, that is so in this case. The document attached to the complaints contains 53 paragraphs in 11 pages. It provides details and particulars as to dates, events and the complainant’s arguments regarding how those dates and events constitute violations of the bargaining agent’s obligations towards its membership. The bargaining agent did not deny the facts; instead, it denied my jurisdiction based on those facts. For their part, the complainants relied on arguments and inferences drawn from those facts. Thus, there is no reason to hold a hearing to establish the facts that the bargaining agent relied upon for its argument that the complaints were out of time.

B.  Are the complaints out of time?

[32]  I will now turn to the bargaining agent’s preliminary objection.

[33]  These complaints were made pursuant to paragraph 190(1)(g) of the Act. That paragraph permits a person to file a complaint that “. . . the employer, an employee organization or any person has committed an unfair labour practice within the meaning of section 185.” Section 185 defines “unfair labour practice” as anything that is prohibited by subsection 186(1) or (2), section 187 or 188, or subsection 189(1). In general, subsections 186(1) and (2) prohibit an employer or its managers from interfering with bargaining agents, their organizations and their activities. Section 187 prohibits bargaining agents from representing their members in a manner that is arbitrary or discriminatory or that is in bad faith. Section 188 imposes certain restrictions on how bargaining agents conduct organization drives and how they interact with their members or other employees. And subsection 189(1) prohibits anyone from intimidating an employee from becoming — or from refraining from becoming — a bargaining agent member.

[34]  Subsection 190(2) of the Act provides a limitation period with respect to such complaints. Since that subsection must, by its own terms, be read in context, I will reproduce all of section 190, as follows:

190. (1) The Board must examine and inquire into any complaint made to it that

(a) the employer has failed to comply with section 56 (duty to observe terms and conditions);

(b) the employer or a bargaining agent has failed to comply with section 106 (duty to bargain in good faith);

(c) the employer, a bargaining agent or an employee has failed to comply with section 107 (duty to observe terms and conditions);

(d) the employer, a bargaining agent or a deputy head has failed to comply with subsection 110(3) (duty to bargain in good faith);

(e) the employer or an employee organization has failed to comply with section 117 (duty to implement provisions of the collective agreement) or 157 (duty to implement provisions of the arbitral award);

(f) the employer, a bargaining agent or an employee has failed to comply with subsection 125(1) (duty to observe terms and conditions); or

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

(2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.

(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.

(4) The Board may, on application to it by a complainant, determine a complaint in respect of an alleged failure by an employee organization to comply with paragraph 188(b) or (c) that has not been presented as a grievance or appeal to the employee organization, if the Board is satisfied that

(a) the action or circumstance giving rise to the complaint is such that the complaint should be dealt with without delay; or

(b) the employee organization has not given the complainant ready access to a grievance or appeal procedure.

 

[35]  In this case, neither subsection 190(3) nor (4) of the Act restricts or limits the scope of the 90-day time limit imposed by subsection 190(2). That said, I note that it is unclear whether Mr. King engaged any internal bargaining agent appeal procedures, and if he did, when (a requirement of subsection 190(3)). However, if he did, it is clear on the facts set out in the document attached to the complaints that any such procedures were completed long before December 2013 (that is, 90 days before April 22, 2014). On the other hand, if he did not (a situation covered by subsection 190(3)), then it is equally clear that — for the same reasons — Mr. King knew of the bargaining agent’s conduct, which he complained of, long before December 2013.

[36]  I turn now to the requirement that any complaint filed under subsection 190(1) of the Act must be filed “. . . not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint” (subsection 190(2)). In my opinion, the facts that the complainants relied on support the bargaining agent’s preliminary objection that the complaints are out of time.

[37]  First, it is clear on the facts that both Mr. King and those he purports to represent in these complaints (that is, the members of Local 024) knew or ought to have known in 2007 that he had been suspended and then terminated for actions he took in the course of his activities as bargaining agent president. That date is clearly beyond the 90-day limitation prescribed by subsection 190(2) of the Act.

[38]  Mr. King also knew that the bargaining agent had not filed an unfair labour practice complaint against the employer in respect of its decision to suspend and then terminate him. No such complaint was ever filed. Mr. King remained president of the Local until June 2008. Accordingly, I am satisfied that Mr. King (and the members of his Local, whom he purports to represent) knew or ought to have known that no complaint had been filed at least as of that date, which is more than 90 days after the employer’s impugned decision to suspend and then terminate him.

[39]  Second, the argument that Mr. King did not understand the difference between the liabilities for legal expenses and for costs cannot bear the weight of the complaints that he and Ms. Bennett filed. The bargaining agent was quite clear that Mr. King’s decision to retain his own counsel would be at his own expense. That advice came on August 8, 2013, which is certainly more than 90 days before the date of the complaint. More importantly, the fundamental thrust of the complaints – and the bulk if not the entirety of the facts and violations alleged – all date from the actions the bargaining agent took or omitted to take in 2007. Mr. King clearly knew of those actions or inactions, and by reference, so did the Local’s members at the relevant time. To try to shelter the pith and substance of their complaint by referring to an issue (liability for costs) that was the very last event in a long chronology of events dating back to 2007 would be to let the tail wag the dog.

[40]  I pause to note that there are good policy reasons for the 90-day time limit imposed by subsection 190(2) of the Act, especially with respect to allegations that a bargaining agent acted in a manner that was “. . . arbitrary or discriminatory or that [was] in bad faith . . .” (section 187). A timely objection may lead to a quick correction of the conduct complained of. It may also ensure that any conduct that could possibly be prejudicial to the complainant’s rights is corrected before that prejudice in fact occurs.

[41]  Third, the argument that Mr. King’s Charter rights were or might have been violated does not explain why he waited until filing his complaint to make it. One would expect that arguments about his freedom of expression or association under the Charter (or that of the Local’s members) would or could have been made during the original hearing before the Board. (And indeed, at least some reference was made to the Charter in the Board’s decision). Up to and including the appearance before the Federal Court of Appeal, Mr. King’s counsel was an experienced and skilful labour lawyer. If an argument could have been made, it would have been; if not, there would have been good reasons for its absence. In Mr. King’s view, if such an argument was not made but should have been made, then that was the time to file a complaint. The same objection applies to the members of the Local. The Board’s decisions are public documents. The decision in Mr. King’s case was published in November 2010. If the arguments placed before the Board during the original hearing were inadequate in any way, then that would have been the time to complain.

[42]  For these reasons, I am satisfied that these complaints were filed outside the 90‑day time limit imposed by subsection 190(2) of the Act for such complaints. Accordingly, the Board has no jurisdiction to hear them.

[43]  I should perhaps state that the complaints are, on their face, a poorly veiled attempt to relitigate the very issues that were decided against Mr. King in his grievances against his suspension and termination. The fact that one of the remedies sought is his reinstatement is illustrative of what appears to be the real goal of the complaints. The congruence of facts and issues is such that the principle of issue estoppel would bar Mr. King from arguing that his suspension and termination were unjust, which would then undercut his complaint about the bargaining agent’s failure to file its own unfair labour practice complaint in 2007. After all, since the employer was found to have disciplined and then to have terminated Mr. King for just cause, there would appear to be little or no room for an argument that the employer committed an unfair labour practice when it took the steps that it did.

[44]  For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

VII.  Order

[45]  I order the file be closed.

August 11, 2014.

Augustus Richardson,

a panel of the Public Service Labour Relations Board