FPSLREB Decisions

Heard at Ottawa, Ontario, and Vancouver, British Columbia, via videoconference,
May 3, 2016.

REASONS FOR DECISION

Complaint before the Board

1        This decision deals with a motion to dismiss a complaint filed by Ryan Benson (“the complainant”) pursuant to s. 77(1)(a) of the Public Service Employment Act. He made his complaint to the Public Service Labour Relations and Employment Board (“the Board”) on December 10, 2014, in response to an advertised appointment process for an IS-05 corporate communications officer position at the Parole Board of Canada (“the respondent”). When the complaint was filed, he was an IS-05 working for the Department of Citizenship and Immigration in Ottawa, Ontario. He alleged that the respondent abused its authority in the application of merit.

2        The respondent denied all of the abuse of authority allegations.

3        Although the Public Service Commission (PSC) did not attend the hearing, it filed written submissions.

4        At the complainant’s request, the hearing was scheduled to take place on May 3 and 4, 2016, at 12:00 p.m. Ottawa time, by videoconference in Ottawa and 9:00 a.m. Vancouver, British Columbia. The parties received the Board’s “Notice of Hearing”, dated February 22, 2016. The “Notice of Venue”, dated April 7, 2016, indicated the hearing rooms for both locations along with the scheduled dates and start time.

5        The complainant did not attend the hearing at its scheduled time and place. The respondent moved to have the complaint dismissed on the grounds that no evidence was adduced to support it. For the following reasons, I grant the motion and order the complaint dismissed.

Background

6        On February 23, 2016, the complainant informed the Board that he was located in Vancouver and requested “… if the hearing could proceed via teleconference”. In response to his location change, on March 3, 2016, the Board’s registry requested that he provide updated contact information and that he copy all parties by email.

7        Having received no response from the complainant, the Board’s registry wrote him again on March 16and requested updated contact information. In response, he did not provide updated contact information but instead stated the following:

Is a teleconference not possible? I can provide an updated address to all, but would like to clarify that before formally requesting a location change. Not the best use of tax dollars to make a half dozen board members and respondent reps fly across the country for a one day hearing….

8        On March 8, 2016, the Board’s registry informed the complainant that a         pre-hearing conference would be held on March 31, 2016, at 2:00 p.m. Ottawa time, or 11:00 a.m. Vancouver time.

9        On March 17, the Board informed the complainant that if he wished to have the hearing held via teleconference, he could make a written request with respect to the hearing location or to how it would be conducted, in accordance with the Board’s Procedural Guide for Staffing Complaints.

10        The complainant responded as follows:

I encourage you to review your processes for improving efficiency. The excessive amount of formality you wrap around these is more than a little dismaying as a taxpayer. My email of Mar 16, 2016 was a simple question as to whether it was technically possible for you to stage a hearing by teleconference to save the expense of sending a half dozen civil servants 4000 km for a few hours of hearings. Yes or no would have worked just fine, after which I could have (formally) followed up, cc’ing other parties. But, ok then.

11        At 1:44 p.m. on March 17, 2016, the complainant then proceeded to request as follows:

… as to whether the hearing for EMP-2014-9441 can be staged by teleconference. This is not a request for such to take place, merely an assessment of capacity. I gather the other parties will now have an opportunity afterwards to respond to my request – despite the fact that they are not equipped, not likely inclined to answer that question, since it relates only to PSLREB technical capacity and guidelines.

12        In a separate email sent the same day at 6:39 p.m., he provided the Board with his new coordinates. Although the respondent had concerns with respect to the fact that the complainant was self-represented and would be testifying by way of teleconference or videoconference, it was not averse to the idea of holding the hearing via such means. The respondent requested additional information on the hearing logistics.

13        The PSC advised the Board that it was unlikely that it would attend the hearing. It took no position on the possibility of having the hearing held by teleconference. The Board informed the parties that it would be discussed during the pre-hearing conference on March 31, 2016.

14        On March 31, 2016, a pre-hearing conference was held by teleconference. All parties were present: the complainant, the respondent’s representatives, and the PSC. As indicated in the “Notice of Pre-hearing Conference”, the conference was held to streamline the hearing process. The participants had to be fully prepared to discuss the following issues: the witnesses, the nature of the evidence to be presented, the identification of uncontested facts and documents that could be produced on consent, the identification and review of issues in view of simplifying and accelerating the hearing, the settlement, the hearing venue, the order of proceedings, the time limits for presenting arguments, the exchange of documents that would be produced at the hearing as exhibits, the jurisprudence, any requests for accommodation, the start time and length of the hearing, any redress, and the remedies.

15        The parties provided their respective lists of witnesses and approximated how long they would testify. They provided the Board with approximations of how long they would take to cross-examine the witnesses and to make their final arguments. The Board determined the final date for the parties to exchange documents would be April 27, 2016. At no time did the complainant raise an issue with respect to not having received all the documentation contained in the order for the production of information (“OPI”) that the Board had issued on May 28, 2015.

16        During the pre-hearing conference call, it was explained to the complainant that the Board, although not a court of law, is a quasi-judicial administrative body. It conducts its hearings in accordance with the rules of procedural fairness. Its role is to ensure that hearings are efficient, that all parties benefit from a fair hearing, and that all parties are heard. All parties must have a right to present their cases and         cross-examine witnesses.

17        When asked to confirm its position with respect to having the hearing held via teleconference or having it held in Vancouver, the complainant confirmed that he was requesting that the hearing be held via teleconference. The respondent had some concerns with respect to adducing evidence and the fact that the complainant would be representing himself and testifying.

18        The parties discussed the possibility that the respondent would assume the complainant’s travel expenses from Vancouver to Ottawa. Considering the fact that the respondent would need to cover the travel expenses of its representatives and its witnesses, counsel for the respondent indicated that he would discuss this option with the respondent. If the respondent were to agree to assume the complainant’s travel expenses, he would be asked to confirm in writing his agreement to travel to Ottawa for the hearing. He informed the Board that he was not aware of whether he could take time off work for the hearing dates of May 3 and 4, 2016. The parties were requested to confirm their responses to the Board by April 6, 2016.

19        On April 5, 2016, the respondent confirmed that it “… would not pay for the complainant’s cost of travel to Ottawa”. It confirmed that it was “… willing to work with the Board and the Complainant to facilitate holding the hearing by teleconference or videoconference”. It indicated the following should the Board believe that a teleconference or videoconference were not possible or advisable:

… [It] respectfully submitted that the hearing should take place in Ottawa. All of the witnesses are in Ottawa. The PSLREB Procedural Guide for Staffing Complaints states that “the hearing will usually be held in the community where the complainant works or lives”, however, it also says that “the witnesses [sic] place of residence is also a factor in determining the location of the hearing”.

20        In this case, the respondent stated that the practice of holding the hearing in the “… community where the Complainant resides would lead to an unfair result as it would burden the Respondent with the costs associated with the Complainant’s decision to move from Ottawa to Vancouver.”

21        The complainant responded as follows:

One has to appreciate the irony of counsel suggesting that my decision to relocate to Vancouver could create an unfair result in this case, and place a burden on their client. Beyond the fundamental gaps in fairness demonstrated by their alleged abuse of delegated authorities, I note that the respondent’s $4.5 million annual travel and communications budget somewhat eclipses my own; that their reservations around a virtual hearing are nullified by a video session; that an Ottawa session would be more aligned with our Values and Ethics Code responsibilities around stewardship of public funds and perceptions; and that I was willing and able to attend a hearing in Ottawa when the complaint was laid … as well as the 12 months following. I therefore respectfully maintain my position that a hearing in Vancouver is the most fair and representative path; though a teleconference/videoconference is acceptable.

22        Further to those submissions, on April 7, 2016, the Board informed the parties that the hearing would proceed by way of videoconference. The details of the Ottawa and Vancouver locations for the hearing were included in the “Notice of Venue”, which was sent to the parties on that same date. The Board reserved videoconferencing facilities at the Ottawa and Vancouver offices of the Canada Industrial Relations Board (“the CIRB”) for the hearing. A contact person working at the CIRB in Vancouver was available and present at all times. The parties were reminded that they were to exchange all documentation and jurisprudence to be relied upon at the hearing by April 27, 2016.

23        On April 28, 2016, by email, the complainant filed the documentation with the Board and provided the PSC and the respondent with copies. In that same email, he provided links to the jurisprudence and legislation sites he would rely on at the hearing.

24        In his email, the complainant alleged that he did not receive all the documentation that the respondent was ordered to produce almost a year ago, specifically on May 28, 2015. At no time between the May 28, 2015, production order and April 27, 2016, did he contact the Board to inform it that he had not received the information.

25        In his email, he acknowledged that he had received the following:

… an email from October 17, 2014 from K. Bazinet to M. Prieur confirming capacity of enhanced reliability, an org chart listing position as secret, an HR request, (which itself was missing the required justification), a position action report dated after the letter of offer, and a change to security profile checklist dated after both competitions AND the candidate’s start of employment.

26        He stated: “Owing to the significant process and approvals required by the auctioning [sic] of a security clearance change request in the Public Service, it is extraordinarily unlikely that this represents the sum total of all related documents held by the respondent.”

27        He also stated: “I would like this search repeated, preferably by ATIP staff at the [Parole Board of Canada], as it is of questionable impartiality for the initial gathering of documents to have been overseen by the same parties directly involved in this process and the subsequent complaint.”

28        He also attached an additional request for the production of information, which in his view was directly relevant to the complaint. He requested information pertaining to the following:

… evidence that the Public Service Commission (PSC) has reviewed the staffing program of the respondent, at the respondent’s request, and has approved the agency for deployment purposes; the respondent [sic] “chronology of events” related to this matter, which was previously made available for viewing, and referenced in the respondent’s reply to the initial Production Order; and any transcripts or written notes from the Board, the PSC, and/or the respondent from the initial settlement conference and mediation sessions related to this matter.

29        On April 28, 2016, the respondent objected to the production of that information on the grounds that it was irrelevant to the complaint before the Board as the complaint dealt with an appointment, not a deployment. It responded that the “chronology of events” document was protected by solicitor-client privilege as it was prepared as a tool after the complaint was made for the purpose of providing an overview of the case to conceive a litigation strategy. With respect to the third request, the respondent stated that it did not have the authority to release that information.

30        As for the Board’s notes, the disclosure decision rested with the Board and not the respondent. The respondent added that the relevant legislation, about disclosing the notes of people providing mediations, states that notes are not to be disclosed without the consent of the person who made them. With respect to the PSC’s and the respondent’s notes, it took the position that they are protected by the well-established principle of settlement privilege, since the communication was made with a view to negotiating the dispute.

31        The complainant stated the following in his unsolicited response:

… although no deployment was made, the first phase of the selection process was only available to at-level candidates per the respondent’s documentation that was submitted, candidates who were already at IS-05 level or equivalent were assessed first for possible deployment, as the candidate’s host organization NSERC is not a core department, position equivalency and a candidate’s eligibility for deployment and the appointment itself, since this was based solely on first phase selection can only be confirmed by the requested PSC intervention, so I would like a copy.

32        With respect to the “chronology of events” document, the complainant stated that it “… was already explicitly offered to [him] during the emails [sic] discussions of the first production order, so to now claim it suddenly holds a privileged status and was created solely for litigation is disingenuous”.

33        As for the third set of documents, he stated as follows:

… [he] accepts the decision of the Board as to whether the referenced settlement privilege should be exempt here under established grounds, specifically those of public interest, and since [he] was only seeking documents not covered by confidence considerations i.e. notes taken detailing discussion, for which [he] was at the same table.

34        On May 2, 2016, the Board issued a letter decision on the complainant’s April 28, 2016, OPI request. It reminded him that he had the onus of demonstrating the arguable relevance of the documents he sought. The requesting party must demonstrate a nexus, or a clear link, between the information sought and the complaint.

35        When determining the arguable relevance of the documentation pertaining to the deployment issue, the Board looked at the respondent’s replies to the complainant’s allegations. In them, the respondent explained the phases of the appointment process. The Board determined that it was not clear as to how the approval for a deployment was arguably relevant to the complaint before it. Although it did not order that information disclosed, it stated however that its conclusion did not preclude the complainant from asking questions on this issue at the hearing to obtain clarification.

36        In that same letter decision, the Board ordered the disclosure of the “chronology of events” document to the complainant by no later than 3:00 p.m. Ottawa time (12:00 p.m. Vancouver time). It noted that on May 13, 2015, he had made an OPI request.

37        The respondent had replied on May 19, 2015, stating that it was willing to provide the following specific documents, including the document entitled “Chronology of events” in that it summarizes all the key steps related to the appointment from the posting of the original poster to the job offer being issued. The Board determined that therefore it was not necessary to determine the question of privilege because the respondent had waived such privilege by having made the document available for the complainant’s viewing.

38        As ordered by the Board, the respondent produced the “chronology of events” document and sent it to the complainant on May 2, 2016, at 2:05 p.m. Ottawa time, or 11:05 a.m. Vancouver time. At no time did he write to the Board to inform it that he had not received all the documentation it had ordered produced on May 28, 2015, or on May 2, 2016. He did not contact the Board to request a postponement of the hearing, which was scheduled to start the following day on May 3 and to continue on May 4, 2016, via videoconference.

39        On May 3, 2016, the Board opened the hearing promptly as scheduled at 12:00 p.m. via videoconference in Ottawa, or 9:00 a.m. Vancouver time, as was indicated in the “Notice of Venue” that was sent on April 7, 2016. The Board secured the hearing facilities of the Canada Industrial Relations Board (“CIRB”) in Ottawa and Vancouver. A contact person was present at all times at the CIRB hearing location in Vancouver. Present at the hearing for the respondent were counsel for the respondent, the representatives for the respondent and witnesses. However, the complainant could not be seen at the Vancouver end of the videoconferencing connection.

40        At 12:06 p.m. Ottawa time, the Board attempted to contact the complainant by email and telephone to determine his whereabouts. He did not respond to the Registry Officer’s phone call or its email. The Registry Officer left a message requesting the he contact the Board as soon as possible.

41        At 12:06 p.m. Ottawa time, the complainant wrote to the Board, stating as follows:

Having still not received critical materials from the initial production order, I was intending to request a postponement of the proceedings until this was provided, along with 2-3 business days to process the information. However having also received no videoconference information for the Ottawa side, nor been able to reach the registry by phone this a.m., presumably this is not going ahead today in any case?

[Emphasis added]

42        If the complainant called the Board’s registry as he claims he did in his email, he did not leave a message informing the Board that he would request a postponement of the hearing for having not received documents or the necessary information to participate in the videoconference.

43        At around 12:15 p.m. Ottawa time, the Board again attempted to contact the complainant, and left a voice message informing him that the hearing would proceed as scheduled. He was informed that if he was not present by 12:30 p.m. Ottawa time, or 9:30 a.m. Vancouver time, the Board would proceed without him.

44        At 12:18 p.m., the Board emailed him to confirm the voice message. The CIRB contact person confirmed that he was not present at that time.

45        At 12:49 p.m. Ottawa time, or 9:49 a.m. Vancouver time, the complainant emailed the Board to inform it that he could not proceed as the respondent had not fulfilled the production order and that he was about to call the Registry Officer.

46        At 12:50 p.m. Ottawa time, or 9:50 a.m. Vancouver time, he informed the Registry Officer that he could not proceed with the hearing. The Board’s registry informed him that the Board would proceed with the hearing without him if he did not attend. It informed him that his concerns about document production could be raised at the hearing. He informed the Registry Officer that he would be at the hearing location in 20 minutes, or 1:10 p.m. Ottawa time or 10:10 a.m. Vancouver time.

47        At 1:15 p.m. Ottawa time, or 10:15 a.m. Vancouver time, the Board informed the respondent and all its representatives that the complainant had confirmed with its registry that he would arrive at any moment. The Board informed the parties that it would give him an additional 20 minutes to get to the venue.

48        At 1:35 p.m. Ottawa time, or 10:35 a.m. Vancouver time, it was evident from the videoconference the complainant had still not arrived at the hearing location. At that point, all the respondent’s representatives, their counsel and witnesses, including the panel of the Board, had been waiting for him for 1 hour and 35 minutes. Having received no reasonable explanation as to why he was running late or whether he truly was going to attend the hearing, the Board reopened the hearing and heard the respondent’s motion to dismiss the complaint.

49        The Board proceeded with the hearing pursuant to section 29 of the Public Service Staffing Complaints Regulations (SOR/2006-6),which provides as follows:

29 If a party, an intervenor or the Canadian Human Rights Commission, if it is a participant, does not appear at the hearing of a complaint or at any continuance of the hearing and the Board is satisfied that notice of the hearing was sent to that party, intervenor or participant, the Board may proceed with the hearing and dispose of the complaint without further notice.

50        The Board is satisfied that the Notice of Hearing was sent to the complainant.

Respondent’s motion to dismiss

51        The respondent requests that the complaint be dismissed on the grounds that the complainant did not appear and did not present any evidence at the hearing. If he had wished to request a postponement, he should have made it in a timely manner.

52        With respect to the complainant not receiving documents, the respondent submits that the OPI request was not made in a timely manner. If he had issues with information production, he had had a year to say so.

53        In his April 28, 2016, email, the complainant requested that the provision of information in response to his May 28, 2015, OPI request be done through an access to information and privacy (ATIP) request. The respondent submits it has provided the complainant with all the information in accordance with the Board’s order. If he wishes to avail himself of documentation and information pursuant to an ATIP request, a separate legislative framework exists for this process, and he should have made that request a year before the hearing.

54        The respondent relies on Edmunds v. Treasury Board (Correctional Service of Canada), 2015 PSLREB 28, a decision of a panel of the Board. In that case, the bargaining agent did attend and participate in the hearing of the grievance, but it presented minimal evidence. The respondent in that case elected to call no evidence, as the burden of proof had not been met.

55        The respondent submits that since the complainant did not appear at the hearing at the date and time determined by the Board, it bears no obligation to respond because there is no evidence to respond to.

56        The complainant made no request for a postponement and offered no reasonable explanation for not attending. For all these reasons, the complaint should be dismissed.

57        The respondent completed its submissions at 1:45 p.m. Ottawa time.  As the complainant had still not appeared at the hearing by this point, the Board closed the hearing and advised those present that it would be issuing a decision on the motion to dismiss the complaint in due course.

The complainant’s post-hearing contact with the Board

58        At 1:50 p.m. Ottawa time, the complainant emailed the Board’s registry to ask if he was supposed to meet someone at the hearing location. At 2:03 p.m. Ottawa time, he emailed the Board’s registry again, indicating that he did not know what was going on, that he had been waiting in the designated space but that nobody else was there, and that there was not even any videoconferencing setup in the room and definitely no hearing underway, so he was heading back to work. He made no attempt to communicate with anyone at the CIRB hearing room site.

59        At 4:44 p.m. Ottawa time, the complainant emailed the Board’s registry, requesting clarification. He stated the following:

I went to the designated location only to sit by myself for 45 minutes, before being told the actual location was in another room. I was then asked to wait in the Industrial Relations Board office to speak with the Board member, but was finally told that they had actually been on the videoconference and already signed off, and to contact the Board for an update since nobody in that Vancouver office has anything to do with the process and they were just providing space.

60        He went on to add that “you said the hearing was going ahead, but apparently this didn’t happen? When is it rebooked for? I also have still not received any info related to the missing documents from the initial production order. Some clarity here would be appreciated.”

Reasons

61        In Tibbs v. Deputy Minister of National Defence,2006 PSST 8, the Public Service Staffing Tribunal determined that complainants bore the burden of proof in hearings before it (see paragraphs 49, 50, and 55). For the complainant in this case to meet this burden, it is necessary for him to present sufficient evidence for the Board to determine, on a balance of probabilities, whether there was an abuse of authority in the staffing process.

62        In Broughton v. Deputy Minister of Public Works and Government Services,2007 PSST 20 at para. 50, the Tribunal found as follows: “It is not sufficient for a complainant to make bold statements in the complaint and allegations claiming abuse of authority without supporting these allegations with evidence from witnesses, facts and/or documents.”

63        In Sharma v. Chief Public Health Officer of the Public Health Agency of Canada,2011 PSST 27, and in Huot v. President of the Economic Development Agency of Canada for the Regions of Quebec,2011 PSST 29, the Tribunal dismissed the complaints because the complainants failed to present any evidence in support of their allegations.

64        In this case, the complainant submitted allegations, but he did not appear as indicated in the “Notice of Hearing” and did not tender any evidence to support his allegations. Consequently, the Board finds that he failed to establish that the respondent abused its authority as alleged in his complaint.

65        The complainant at no time provided the Board with a reasonable explanation as to why he could not attend the hearing on time at the Vancouver location. He did not conduct himself in a diligent and responsible manner with respect to his complaint. Knowing that the hearing would proceed by way of videoconference, a reasonable person would not have sat in a hearing room with no videoconferencing equipment for 45 minutes, as the complainant alleges, without bothering to find out if he or she was in the right location.

66        He was aware of the Board’s regulations and processes with respect to OPI requests and did not take the necessary steps to ensure that he had obtained all the documentation well in advance of the hearing dates. He did not bother to verify with his manager that he would be available for the hearing dates. He did not request a postponement of the hearing dates. He merely stated that he “…was intending to request a postponement of the proceedings until this was provided…”. Furthermore, the manner in which he addressed and communicated with the Board’s registry and the parties was often rude and inappropriate.

67        In closing, the Board must note that the complainant’s conduct in this matter has been unacceptable. A significant amount of time and expense went into organizing the hearing via videoconference at his request. A significant amount of resources is expended by those involved in arranging and preparing for oral hearings when they are deemed appropriate.

68        Each party is responsible for informing the Board in a timely manner if it has not received the documentation necessary to pursue its case or if it will request a postponement. If the complainant did not receive documentation and “intended” to request a postponement, he should have notified the Board in a timely manner. Deciding to do it late on the morning of the date on which the hearing was scheduled to begin and not even bothering to appear, was unacceptable. His actions in this matter show a serious lack of respect for the Board and the other involved parties. To allow such conduct would bring the administration of complaints before this Board into disrepute.

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

Order

70        The complaint is dismissed, and the file is ordered closed.

May 20, 2016.