FPSLREB Decisions

Heard at Ottawa, Ontario,
January 29, 2015.

Complaint before the Board

1 On July 7, 2014, the Public Service Alliance of Canada ("the complainant") initiated a complaint pursuant to section 190 of the Public Service Labour Relations Act, (S.C. 2003, c. 22, s. 2; PSLRA) alleging violation by the Treasury Board of Canada ("the respondent") of sections 106, 107 and 186 of the PSLRA.

2 On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board ("the new Board") to replace the former Public Service Labour Relations Board ("the former Board") as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act before November 1, 2014, is to be taken up and continue under and in conformity with the Public Service Labour Relations Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2. Further, pursuant to section 395 of the Economic Action Plan 2013 Act, No. 2, a member of the former Board seized of this matter before November 1, 2014, exercises the same powers, and performs the same duties and functions, as a panel of the new Board.

3 The hearing of this matter commenced before a panel of the Board on January 27, 2015. During the course of the parties' opening statements, an issue arose with respect to the proper evidentiary scope of the complaint. In particular, at issue was whether statements made at the bargaining table post-complaint could be received in evidence.

4 After hearing the submissions of the parties, the Board ruled that the complaint crystallized on July 7, 2014, before first bargaining proposals were exchanged. There was a concern that evidence relating to events that took place subsequent to that date could be used for the purpose of substantiating the allegations in the complaint. The Board stated that it was up to the complainant to decide if it wanted to move to formally amend the complaint or to bring a new complaint.

5 The complainant advised the Board that it would bring a motion seeking an amendment to the complaint.

6 A motion was filed with the Board on January 28, 2015. The respondent replied in writing on January 29, 2015. The parties presented oral arguments to the Board in support of their positions on January 29, 2015.

Submissions of the parties

7 The following submissions are a summary of the written submissions filed with the Board and the oral submissions advanced at the hearing.

Complainant's submission

8 The complainant sought an amendment to the present complaint to include additional facts that arose subsequent to the filing of the complaint. Specifically, the complainant sought to amend the complaint to include the following allegations:

• Employer representatives stated at the bargaining tables for all five groups represented by PSAC that the STD plan will "reside outside" the Collective Agreement.
• Because the STD plan will "reside outside" the Collective Agreement, its terms do not need to be negotiated.
• The Employer wants all bargaining units to have the same STD plan, and therefore it will not negotiate different terms of the plan with different units. Employer representatives have made clear statements that they would not negotiate the model.
• Employer representatives advised that the implementation date of the STD plan is September 1, 2016, and made other statements to the effect that this is a fait accompli, as opposed to a proposal.

9 The complainant argued that the additional allegations did not alter the nature of the complaint, were relevant to the grounds advanced in the original complaint and that the respondent had been on notice for over two months before the hearing and was not prejudiced in its ability to respond to them. The parties had already agreed to place considerable documentary evidence related to these additional facts before the Board, on consent.

10 In the complaint, PSAC alleged that the respondent had violated sections 186 and 106 of the PSLRA in that it had interfered with the administration of an employee organization and the representation of employees in an employee organization by communicating false and misleading information to employees regarding its Workplace Wellness and Productivity Strategy ("Wellness Strategy") and that its communications and its implementation of the Wellness Strategy violated the respondent's duty to bargain in good faith.

11 It alleged that the event that triggered the complaint was a series of mass email communications from the respondent to employees, introducing its Wellness Strategy. The complainant alleged that these communications interfered with its ability to represent its members in bargaining and violated the duty to bargain in good faith because they misled employees to believe that the contents of the Wellness Strategy, including the introduction of short-term disability benefits, were not the proper subject of bargaining but rather could be unilaterally implemented by the employer and that the terms and conditions of employment in the Wellness Strategy were a fait accompli rather than bargaining proposals.

12 The complainant's position was that the respondent had no basis to assume that the contents of the Wellness Strategy were not the proper subject of bargaining, as sick leave and health insurance benefits were not excluded from collective bargaining under the PSLRA. Therefore, the respondent was obligated to bargain the introduction of these proposals, and to give the contrary impression to employees, at the outset of bargaining, was misleading and bad faith.

13 On October 21, 2014, the respondent wrote to the complainant inquiring whether the complainant intended to introduce any communications occurring after the July 7, 2014 filing of the complaint in evidence at the hearing of the complaint. The complainant responded by letter dated November 5, 2014, advising that additional allegations had arisen that were closely linked to the allegations in the complaint and that these additional allegations as outlined in paragraph 8 should form part of the hearing.

14 The respondent responded to this letter on November 28, 2014, stating in part:

In terms of the duty to bargain in good faith, the complaint was filed two-weeks [sic] before the parties first sat down at the bargaining table. The complaint is premature and, on its face, focuses exclusively on two pieces of employer communication. I understand that the jurisprudence identifies the duty to bargain as continuous and that labour boards will look at the full picture of events up to the date of the hearing… . The focus of the current complaint is employer communication that occurred well before the parties first sat down to negotiate. As a result, the employer will agree that the Board can receive evidence on the duty to bargain up to the point of the hearing. However it remains of the position that this does not alter the focus of the enquiry, which is set out in the complaint.

15 The complainant responded on December 22, 2014, indicating that it had not received a clear response as to whether the employer would object to the additional allegations being advanced at the hearing. The complainant therefore asked that the respondent advise as to whether it would make such an objection. The respondent wrote on January 12, 2015, quoting from its November 28 letter. It further stated its position that the bad faith bargaining complaint was premature and that it should not be open to the complainant to fundamentally alter the nature of the complaint at this stage.

16 In advance of the hearing, the parties agreed to enter several volumes of documents into evidence on consent, including two volumes submitted by the respondent containing the parties' bargaining proposals exchanged at all five bargaining tables, as well as the proposals the respondent had tabled regarding sick leave and short-term disability, together with notes of the bargaining teams.

17 The predecessors of this Board have recognized the authority to amend complaints in a variety of circumstances. The Boards have granted requests to amend unfair labour practice complaints in order to advance new grounds, to add new respondents and to add additional grounds for relief. Boards have generally denied these requests where an amendment would alter the substantive nature of the complaint. (See: PAFSO v. Treasury Board, 2013 PSLRB 111, MR Tab 8; IAMAW v. CSC, 2005 PSLRB 50, MR Tab 9; Marken and Carson, [1992] CPSSRB No 172. See, for example, Boshra v. Canadian Association of Professional Employees, 2009 PSLRB 100, at para. 71).

18 In PAFSO, the PSLRB permitted an amendment to add an entirely new ground for the complaint because the new ground only came to the attention of the union on the first day of hearing and the employer would not be prejudiced by the amendment. The complainant notes that, in that case, the PSLRB accepted the amendment in part because a new complaint could still have been filed regarding the new allegation. The complainant submits that this restrictive an approach is not required in cases where the amendment sought does not introduce a new discrete issue (see PAFSO, supra, at paras. 55-56).

19 The Canadian Industrial Relations Board ("CIRB") and its predecessor have considered an analogous authority to amend complaints in numerous cases. This jurisprudence holds that an amendment will be granted where it enhances or expands upon the existing complaint but will be denied if it alters the fundamental nature of the complaint or results in a breach of the rules of natural justice.

20 In Retail Clerks' International Union v. Bank Canadian National, [1980] 1 Can LRBR 470, at page 6, the Canada Labour Relations Board (CLRB) stated:

Certainly the Board would not allow any amendment which would change the nature of a case completely. If the Board condoned such a practice, a person could bring a complaint and add to it other complaints which would otherwise be inadmissible. If, for example, in the case before us the amendment had covered a violation of the Code which would have been inadmissible because it was not filed within the prescribed time period, clearly the Board would not have accepted it. Nor, it should be pointed out, would we entertain any amendment which would have the effect of taking the opposing party by surprise on the eve of a hearing, for example.

21 The CLRB similarly held in Canadian Air Line Flight Attendants' Association v. Nationair (Nolisair International Inc.) (1986), 67 di 217 at pages 3-4:

It is clear that this power must be exercised without, however, breaching the rules of natural justice. If, by allowing one party to amend its application, the Board were at the same time tolerating a situation where the other party would be taken by surprise and would therefore not have the time or the information required to prepare its case, this action could certainly be termed an excess of jurisdiction… .

…

However, the amendment approved by the Board could not have the effect of taking the respondent by surprise. It did not alter the nature of the complaint, which essentially alleged that the respondent punished the complainants for exercising a right recognized by the Code… .

22 The Ontario Labour Relations Board (OLRB) has adopted a similar approach, emphasizing that the full context must be considered and the competing interests of both parties must be balanced.

23 The OLRB stated the following in Federated Contractors Inc. v. Sheet Metal Workers' International Association, Local 269, [2003] O.L.R.D. No. 1562, at paras. 15-16:

The Board's exercise of discretion to permit an amendment of the pleadings is premised on whether the Board considers it "advisable to do so". In my view, the Board's Rules should not be used as a weapon to deprive a party of the ability to have its case heard when the other parties affected would not be prejudiced if the Board were to relieve against the strict application of the Rules and the party seeking the relief can persuade the Board that there are good reasons for the Board doing so. In other words, it is advisable for the Board to permit a document to be amended when the party seeking the amendment can demonstrate that there are good reasons to allow the amendment and the Board is satisfied that those reasons outweigh the prejudice, if any, to the other parties by allowing the amendment.

In ONTARIO HYDRO, [1992] OLRB Rep. Jan. 47 the Board discussed the exercise of its discretion to permit an amendment to pleadings at page 58:

The Board has a general discretion under section 83 of the Board's Rules of Procedure to grant leave to a party to amend a complaint, whether the request is made before or at the hearing. Among the factors which we view as relevant in deciding whether to grant leave are: the stage of the proceedings at which the request to amend is made, the prejudice to another party (in particular, whether the other party has an opportunity to present a case in response to the amended complaint), whether the amendment sought could be adequately dealt with in a separate proceeding, to what extent the amendment raises new issues and particulars, the reasons for the failure to plead the amended complaint originally, and our sense of the logic in having certain matters dealt with together.

[Emphasis added]

24 Applying the above principles, the OLRB granted a request for an amendment, concluding, at para. 19:

… The nature of the case is well known to the responding parties and in the absence of real prejudice to the responding parties, together with the applicant establishing most of its amendments are a compilation and explanation of the particulars it had provided to the responding parties earlier, it is advisable to permit the amendment.

25 In International Brotherhood of Electrical Workers, Local 804 v. Culliton Brothers Ltd., [1996] O.L.R.D. No. 2407, at para. 4, the OLRB granted the union's request to amend its application to include additional particulars that had been provided to the responding parties five days in advance of the hearing. The OLRB stated:

The Board's Rules of Procedure grant the Board the discretion to permit a party to call evidence with respect to a matter not particularized in its initial pleadings (see Rules 20, 22 and 25). In the view of the majority of the panel, this was an appropriate case to do so. The Board, the responding party and the objecting group of employees had a copy of the union's additional particulars five days in advance of the hearing. The responding party and objecting group of employees asserted no prejudice arising out of the late filing of additional particulars and specifically indicated that they were prepared to proceed… .

26 The complainant submits that this Board should have regard to the approach in the above cases and should consider whether the reasons for amendment outweigh any prejudice to the respondent. The two key factors to be considered are:

1. whether the amendment fundamentally alters the nature of the complaint; and
2. whether the amendment would take the respondent by surprise, amounting to a breach of natural justice.

Neither of these two concerns arises in the present case, and there are compelling reasons to grant the amendment.

27 The complainant agrees with the respondent, and with the prevailing case law, that it is not permissible to fundamentally alter the nature of the complaint through an amendment at this stage. Thus, for example, the complainant could not rely on evidence of what occurred at the bargaining table to transform the present case into a complaint of surface bargaining or improper impasse bargaining, as that would clearly alter the grounds set out in the original complaint. However, that is not what the complainant is requesting.

28 The crux of the complaint remains the same: the respondent has interfered with the complainant's representation of employees, and has violated its duty to bargain in good faith, by expressing the position that it does not need to bargain the full terms of the Wellness Strategy but rather can (and will) implement those terms unilaterally. The additional facts that the complainant seeks to adduce at the hearing are plainly relevant to the determination of those original grounds of the complaint.

29 Thus, the complainant's request to amend the complaint is fully consistent with the understanding of the proper scope of evidence articulated by the PSLRB in PIPSC v. Treasury Board, 2009 PSLRB 102, at para. 79, quoted in the employer's letter of November 28, 2014.

30 Consistent with the decision in PIPSC, the complainant maintains that evidence of what took place after the communications is relevant to assessing whether those communications amounted to bargaining in bad faith and are therefore properly included in the complaint through an amendment. For example, the complainant understands that the respondent may advance the following positions in its evidence and argument in the present case:

1. The respondent did not intend to suggest in its communications that it was not going to bargain the full contents of the Wellness Strategy;
2. The respondent did not take the position that it did not need to bargain the contents of the Wellness Strategy or the position that it could implement the Wellness Strategy unilaterally;
3. The respondent did not express that the terms of the Wellness Strategy were a fait accompli.

31 There can be no doubt that, in testing the credibility of the above assertions, the Board can and should consider evidence of what was said about this precise issue at the bargaining tables; thus, the additional facts that the complainant seeks to advance are clearly relevant to assessing the plausibility of the respondent's defence to the present complaint. This is well illustrated by an example from the documentary bargaining evidence post-dating the complaint (evidence tendered by the respondent):

… the Respondent has adduced the bargaining proposals it presented to all five bargaining units in July, 2014, a few days after the complaint was filed. All five of those proposals contain the following statement under "Sick Leave":

As a result of the Government's announcement to implement a Short-term Disability Plan, the Employer wishes to discuss the consequential changes to the sick leave provisions, a transition approach for sick leave banks, as well as, any other required changes to other provisions in the collective agreement.

[Emphasis in original]

32 The complainant emphasizes that this evidence has already been submitted and accepted by the Board on consent of the parties. This evidence is highly probative of the dispute in the present case, as it belies any claim the respondent may make that it did not take the position that it was not obligated to bargain the short-term disability plan or that it was not planning to proceed with implementing the plan regardless of what took place in bargaining. Yet, if the requested amendment is not granted, this evidence will be excluded from the hearing. The complainant submits that such a result would seriously prejudice the Board's ability to determine the present complaint.

33 The complainant requests an order that the complaint, dated July 7, 2014, be amended to add the particulars outlined in paragraph 8, supra, after paragraph 10 of the complaint.

Employer's submission

34 In order to have a better appreciation of the issues in this case, it is helpful to have an understanding of the timelines:

• February 24-April 16, 2014 – notice to bargain for the five groups at issue was served by the employer.
• May 27, 2014 – the parties agree to meet on all five tables to exchange first proposals and commence negotiation on July 8, 9 and 10^th, 2014.
• July 7, 2014 – the day before the parties were to meet and commence bargaining, the bargaining agent filed its complaint.
• September 15, 2014 – the complainant requested an expedited hearing, and a pre-hearing conference call was held with the Board. It was agreed that this matter would proceed in January 2015.
• October 21, 2014 – the employer wrote to the complainant to discuss the scope of the complaint.
• November 5, 2014 – the bargaining agent replied and for the first time suggested that the complaint would be enlarged to deal with statements made at the bargaining table, i.e., post-complaint.
• November 28, 2014 – the employer replied stating in part that the employer will agree that the Board can receive evidence on the duty to bargain up to the point of the hearing.
• December 19, 2014 – counsel for the employer wrote to counsel for the complainant indicating that he was unavailable for the holiday season, returning on January 5, 2014 (and immediately in a hearing that week).
• December 22, 2014 – the complainant replied indicating, once again, that it intended to enlarge the complaint to include matters that occurred at the bargaining table.
• January 12, 2015 – the employer replied by reiterating its position identified in its letter of November 28^th.

35 The employer also pointed out that the PSLRA, specifically section 190, does not provide for anticipatory complaints and that it is not in the interests of positive labour relations for one party to file a complaint in anticipation of a breach. The employer indicated that the current complaint deals with a discrete issue of communications and that a complaint based on positions taken at the bargaining table would be premature as the parties are in the midst of collective bargaining. The employer indicated that the parties had recently agreed to additional bargaining sessions, specifically dates in the March-June, 2015 time frame.

36 There was no further communication between the parties on the scope of the complaint until opening statements on January 27, 2015. The issue was debated before the Board, with the employer maintaining the position it first took in its letter of November 28, 2014. Ultimately, the Board ruled that there was a concern that subsequent evidence to substantiate allegations in the complaint (section 106) should not be part of the complaint as filed and that it is up to the complainant to decide if it wanted to move to amend the complaint or file a new complaint.

37 The PSLRA provides that a complaint can be made within 90 days of the act or circumstances giving rise to the complaint. Section 57 of the Public Service Labour Relations Regulations (SOR/200-79; Regulations) provides that a complaint must be filed in Form 16. Neither the PSLRA nor the Regulations specifically provide for the amendment of complaints. As a result, this falls under the Board's general power in section 12 of the PSLRA.

38 As a point of departure, the question for the Board is whether the new allegations, which focus on events at the bargaining table, are an introduction of new elements to the original complaint or merely an amendment to it.

39 The original complaint is a discrete complaint focused on specific communications. Furthermore, it was filed before the parties commenced bargaining. In every respect, the new allegations are distinct from the original complaint, which focused on communications that occurred months before collective bargaining commenced.

40 The Board, in Rioux and Cloutier v. Leclair, 2003 PSSRB 75, established the test for such an application, namely, whether the "amendment" would "add new elements to the dispute." Specifically at paragraph 13, the Board noted:

…the incidents described in the additional requests occurred after the present complaints were made, and would add new elements to the dispute in the two complaints now being heard. In these circumstances, I consider that the Board would exceed its jurisdiction in allowing the complainants' request simply to include in the present complaints additional allegations about incidents occurring after the present complaints were made. These allegations must be the subject of new complaints.

[Emphasis added]

41 The test is not whether the employer was provided notice or whether there would be prejudice. The PSLRA provides for the filing of a complaint within 90 days of the act or omission giving rise to it. Parties should be discouraged from filing anticipatory complaints with the expectation that subsequent events will be considered either under the guise of "context" or the "sheds light" argument. The prematurity of this complaint is amplified by the fact that the complainant initially claimed a violation of section 107 when in fact, there was no basis for such a claim.

42 In Boshra v. CAPE, 2009 PSLRB 100, the Board followed the Rioux and Cloutier decision, indicating that where the request has the effect of altering the nature of the complaint, it is not truly an amendment but a new complaint. The Board noted as follows at paragraph 72:

Following the precedent established in Rioux and Cloutier, the consequence of my ruling is that the requested amendment should properly be treated as a new complaint, not an amendment. As in Rioux and Cloutier, the order accompanying these reasons will ask the Registry of the Board to treat the "amendment" submitted on May 19, 2009, as a new complaint under paragraph 190(1)(g) of the Act. The Registry will need to open a new complaint file in the complainant's name containing the "amendment" as the allegation of a violation of section 187 and the submissions received to date concerning that allegation.

43 This complaint originally focused exclusively on the employer's communications in the spring of 2014. At paragraph 1, the complaint reads, in part: "Moreover, the Employer's communications and its implementation of the Strategy constitute a violation of the duty to bargain in good faith pursuant to section 106 of the PSLRA…." The complaint does not deal with discussions at the bargaining table, as they had not occurred at that point. Disputes over what occurred during bargaining add a new element to the complaint and therefore alter its nature in a way that is not traditionally recognized as an "amendment" but as a new complaint.

44 The complainant's suggestion during oral argument that the test for allowing an amendment rests exclusively on the issue of prejudice is out of step with the approach taken by this Board. The issue is whether the proposed "amendment" would add new elements to the dispute. If the "amendment" would add a new element to the dispute, it is not an amendment but a new complaint. Evidence as to what happened at the bargaining table after the complaint was filed takes us some distance from the original complaint.

45 As a result, this matter is not the subject of the current complaint, and the existing complaint should proceed.

46 The bargaining agent's motion is premised on its perception of the employer's position at the bargaining table. While not central to the disposition of this application, this position is out of step with bargaining reality. The employer specifically made a proposal dealing with the core elements of the proposed plan. The employer proposes that the plan reside outside of the collective agreement, which is consistent with the position the parties have taken on many service-wide initiatives, such as the Long Term Disability (LTD) Plan, the Travel Directive, Dental Plan, etc. The point is that the employer is making proposals on the core elements of the plan.

47 This is consistent with statements made by the Minister of Finance in the February 11, 2014, Budget, at page 252:

The Government of Canada's specific policy priority in the 2014 round of negotiations is to implement a disability and sick leave management system that is modern, comprehensive, and responsive to the needs of all employees.

48 It is also important to point out that the parties have agreed to the following dates for bargaining:

• March 24-25-26, 2015
• May 12-13-14, 2015
• June 16-17-18, 2015

49 While not an element of the test to amend, the employer takes the position that there is prejudice to the process of collective bargaining if both sides are required to have their negotiators testify for a "How are we doing so far?" analysis by the Board. The parties (a) are in ongoing negotiations, (b) are clearly discussing core elements of the STDP, and (c) have confirmed additional hearing dates in the near future.

50 It would send a chill through a negotiation to force negotiators to testify concerning ongoing negotiations. As noted in Radio Shack, [1979] OLRB Rep. December 1220, at para. 69:

…

Too penetrating a review by this Board will only insert it as a third party in the bargaining arena to be tactically used by the negotiators, diverting their attention from the principal task at hand…

51 The bargaining agent is not suggesting that the additional allegations will support an argument of surface bargaining or impasse bargaining as a separate and discrete ground of complaint (paragraph 20 of the complainant's written submissions).

52 The bargaining agent is only suggesting that these allegations will shed light on the context and meaning of the communications that remain at the centre of this dispute.

53 The tenuous nature of such a proposition is obvious when one considers the following: the communications at issue (April/May 2014) were promulgated by the Pensions and Benefits section of the Treasury Board Secretariat (TBS) and various Deputy Ministers well before collective bargaining was engaged on this issue. The communications were issued before the PSAC first indicated that it wished to collectively bargain issues related to the STDP, despite having been well aware that the program was being developed outside of collective bargaining. Despite this, the PSAC did not indicate that it wished to depart from the over 40-year practice of disability plans residing outside of the collective agreement until June 9, 2014. It is only after the PSAC letter of June 9, 2014 that the collective bargaining section of TBS became involved with the STDP issue. The bargaining agent now suggests that the events that occurred at collective bargaining in the fall shed light on the context and meaning of the communications in April/May (paragraph 26 of the complainant's written submissions).

54 The context of the spring communications is completely contained in the events that occurred at that time. Calling evidence of discussions at the bargaining table would not provide context for what happened before collective bargaining began. In fact, the opposite is true; such evidence would decontextualize the analysis and have the effect of distorting the clear picture of events that occurred at the time the communications were issued. It equally defies probability that communications in the fall by negotiators with the Collective Bargaining branch of the TBS could shed light on the meaning of communications from the Pensions and Benefits section of TBS and various Deputy Ministers in the spring.

55 When weighing the rationale for this evidence against the harm of disturbing the bargaining process by subjecting negotiators to testifying before the Board, it seems obvious that the balance should be struck in favour of limiting the complainant to the true grounds of their complaint, i.e., the alleged impact of the spring communications. Likewise, there is no real prejudice to the bargaining agent as they are not relying on these new allegations to support an argument of surface bargaining or impasse bargaining, only that these allegations shed light on the context and meaning of the spring communications. There is no prejudice to denying the application because these allegations, on their face, could not support a finding of context or meaning; in fact, they would likely result in unnecessary evidence that would shift the focus away from the relevant evidence.

56 The complainant recognizes that the test to amend a complaint is whether the amendment would alter the substantive nature of the complaint. The "sheds light" argument is circular in nature, and the application is a clear attempt to alter the substantive nature of the complaint and that, as a result, the application should be dismissed. The employer requests that the current motion be dismissed and that the original complaint proceed independently on the merits.

Reply Argument of the complainant

57 On November 28, 2014 and again on January 12, 2015, two weeks before the hearing, the respondent agreed that evidence up to the point of the hearing be admitted if it did not alter the focus of the inquiry as set out in the complaint. The bargaining agent agreed. The respondent, by tendering five volumes of exhibits replete with bargaining proposals, has waived any right to oppose the proposed amendment.

58 The hearing process would be prejudiced if the Board denied this amendment. The respondent has questioned the probative value of this evidence in assessing the complaint. The Board must hear the evidence in order to determine the weight to be given to the evidence and assess its probative value.

Reasons

59 The complainant submits that the Board has the authority to permit an amendment to a complaint pursuant to its broad powers under what is now section 12 of the PSLRA (formerly section 36), which provides:

The Board administers this Act and it may exercise the powers and perform the duties and 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, with regulations made under it or with decisions made in respect of a matter coming before the Board.

60 This Board and its predecessors, the PSLRB and the PSSRB, the CIRB and its predecessor the CLRB, and the OLRB have exercised the power to permit amendments to complaints on the basis of the application of a number of relatively consistent non-exhaustive principles:

1. Whether the amendment would add new elements to the dispute such that the amendment fundamentally alters the substantive nature of the complaint;
2. Whether the amendment breaches the rules of natural justice where the other party would be taken by surprise and would therefore not have the time or information required to prepare its case and would suffer real prejudice.
3. Whether the amendment sought should be dealt with in a separate proceeding.

61 Despite its concerns expressed in its ruling of January 27, 2015, regarding the proper evidentiary scope of the complaint, the Board is persuaded that this is an appropriate case to permit the amendment of the complaint as requested. It is satisfied that the complainant has established an arguable case that the proposed amendment does not alter the nature of the complaint and is arguably relevant to the grounds advanced in the original complaint, on the basis that the purpose of introducing these further particulars is to shed light on the context and meaning of the communications that remain at the centre of the dispute. The Board also notes that the respondent, having been on notice for over two months prior to the hearing, was not prejudiced in its ability to respond to them. Moreover, the parties, on consent, had already agreed in advance of the hearing to place considerable documentary evidence before the Board that included bargaining proposals regarding sick leave and short-term disability and notes from the bargaining sessions.

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

Order

63 The Board hereby permits the amendment of the complaint to add the following after paragraph 10 of the Complaint Particulars:

• Employer representative stated at the bargaining tables for all five groups represented by PSAC that the STD plan will "reside outside" the collective agreement. Because the STD plan will "reside outside" the collective agreement, its terms do not need to be negotiated.
• The employer wants all bargaining units to have the same STD plan, and therefore, it will not negotiate different terms of the plan with different units. Employer representatives have made clear statements that they would not negotiate the model. Employer representatives advised that the implementation date of the STD plan is September 1, 2016, and made other statements to the effect that this is a fait accompli, as opposed to a proposal.

May 20, 2015.

Catherine Ebbs, Margaret Shannon and David Olsen,
a panel of the Public Service Labour Relations and Employment Board