FPSLREB Decisions

REASONS FOR DECISION

I. Complaint before the Board

1        Gary Corbett (“the complainant”) filed a complaint on February 27, 2014, against the respondent, the Professional Institute of the Public Service of Canada, alleging that it, its employees, and its members committed an unfair labour practice, in violation of ss. 188 (b), (c), (d), and (e) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”). The complainant also sought the Public Service Labour Relations Board’s leave to prosecute the respondent, its employees, and its members pursuant to ss. 200 and 202 of the Act. This request was withdrawn at the hearing.

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 Board”) to replace the former Public Service Labour Relations Board (“the former Board”) as well as the former Public Service Staffing Tribunal. Pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) 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.

II. Summary of the evidence

3        The complainant was the only witness who testified at the hearing.

4        The complainant alleged that the respondent’s failure to use its dispute resolution and discipline policies constituted an unfair labour practice. At all material times, he was the respondent’s president and chief executive officer. His term of office expired on December 31, 2013, and when he was unsuccessful at being re-elected, Debbie Daviau replaced him. She had also previously been a member of the respondent’s executive committee.

5        In the summer of 2013, the complainant was the subject of a harassment complaint filed by Shannon Bittman (“the Bittman complaint”), who, like Ms. Daviau, was a member of the respondent’s executive committee. The complainant believed that this complaint, which was filed near the end of his elected term as the respondent’s president and chief executive officer, was meant to embarrass him in the eyes of the respondent’s members and to ensure that Ms. Daviau was elected in his place. Ms. Bittman was a close ally and supporter of Ms. Daviau. The complainant in turn filed a cross-complaint against Ms. Bittman. These complaints were still outstanding in November 2013 when the complainant went on an extended vacation out of the country after having been unsuccessful in his bid for re-election.

6        On December 10, 2013, the complainant received a phone call from Don Burns, also a member of the executive committee, who advised the complainant that Ms. Daviau wanted to start fresh without any complaints outstanding when she took office on January 1, 2014, which meant she wanted the complaints resolved before then.

7        On the call, the complainant was also advised of a second harassment complaint that another member of the executive committee, Shirley Friesen, had filed against him (“the Friesen complaint”). Like Ms. Bittman, Ms. Friesen was a strong supporter of Ms. Daviau and had aided her in her election to the president position. Mr. Burns advised the complainant that if he withdrew his complaint against Ms. Bittman, both the Bittman and Friesen complaints against him would be withdrawn. The complainant was upset and angry at this information, particularly since he had not been properly advised of the existence of the Friesen complaint in accordance with the respondent’s dispute resolution policy.

8        The respondent’s actions with respect to handling the complaints indicated to the complainant that its policies had not been followed. Since he had been a successful president and had implemented many changes, this failure by the respondent had a significant impact on him. As a successful president, he had implemented many changes including the introduction of various policies. He felt mistreated by the organization he had led and wanted recognition for his success. The withdrawal of the Friesen complaint did not resolve the pain caused by how the respondent had treated him. He was seeking recognition for the good work he had done on behalf of the respondent; he expected to be treated much differently.

9        While the complainant in his complaint had initially alleged violations of ss. 188(b), (c), (d), and (e), he relied at the hearing only on ss. 188(b), (c), and (e). He did not believe that the respondent’s employees had committed an unfair labour practice. The respondent’s board of directors was accountable for the actions of its employees and directors. The complaint was against the respondent, not the individual executive committee members, even though he had named them in his complaint. None had committed an unfair labour practice, but all were corporately responsible.

10        The respondent’s policies required that anyone who was named in a complaint be notified, as outlined in the dispute resolution policy, yet the complainant had heard nothing of the Friesen complaint until Mr. Burns tried to use it to resolve the Bittman complaint informally. The complainant felt intimidated by Mr. Burns’ call; if he did not cooperate with Ms. Daviau’s wishes, he would be required to defend himself against two harassment complaints, both of which he felt were frivolous. It caused him to be distraught on his vacation. He was outraged that the respondent did not follow its policy that required notifying him of the Friesen complaint. The next day, he notified Mr. Burns that he was not prepared to withdraw his complaint against Ms. Bittman and that he was going to file a complaint against Ms. Friesen as well.

11        The respondent’s executive committee declared that a conflict of interest existed, and its board of directors took over handling the complaints. A third-party investigator was hired to investigate both complaints, following which both the Friesen complaint and the cross-complaint were dismissed. The complainant was not subject to any disciplinary action; however, he stated that being put through the investigation process was disciplinary action. He did not have his stewardship revoked, and he was not expelled or suspended from membership. However, his status in the minds of the members of the respondent had been diminished. Rumours were spread that alleged that he had used illegal drugs when in fact he was ill. He was not re-elected, which he attributed to the “campaign of terror” waged against him. The respondent shunned him; therefore, in his mind, he had been disciplined. He did not feel in any way discriminated against.

12        The respondent elected not to call any evidence and made a motion for non-suit and to have the complaint dismissed for lack of evidence.

III. Summary of the arguments

A. For the respondent

13        Section 12 of the Act authorizes the Board to exercise all powers conferred on it by the Act, or as are incidental to the attainment of its objects. The complainant has not met the statutory conditions of s. 188. Consequently, given the insufficiency of the evidence for the respondent to answer, the complaint must be dismissed. If no penalty and no discipline were imposed on him, and no discrimination occurred, then there was no violation of the Act.

14        The complainant relied on ss. 188(b), (c), and (e), but those paragraphs do not apply to the fact situation he described. Paragraph 188(c) requires that some type of penalty was imposed on or that disciplinary action was taken against the complainant. The Friesen harassment complaint was dismissed with no penalty or discipline being imposed. In the absence of a finding of misconduct, no action was taken against the complainant, disciplinary or otherwise. Being the subject of a harassment complaint does not mean that the complainant suffered a penalty. Investigating the complaint was not disciplinary. Paragraph 188(c) cannot be invoked unless actual discipline or penalty was imposed (see Dumont v. Canada Employment and Immigration Union, 2010 PSLRB 37 at para. 16; Veillette v. Professional Institute of the Public Service of Canada, 2009 PSLRB 64 at para. 32; Island Tug & Barge Limited (1997), 104 di 1 at para. 51; and Gordon v. Health Sciences Association of British Columbia, [2002] B.C.L.R.B.D. No. 89 (QL) at paras. 32 to 39).

15        The complainant claimed that he was upset at being notified of Ms. Friesen’s complaint in a way that he alleged violated the respondent’s “Dispute Resolution and Discipline Policy”. Even though he testified that he felt intimidated by Mr. Burns’ call, the next day, he advised Mr. Burns that he intended to file a harassment complaint against Ms. Friesen rather than accept Mr. Burns’ proposed informal resolution. Those were not the actions of someone who was intimidated. Regardless, given the way the complainant reacted to how he was notified of the Friesen complaint, it cannot reasonably be considered disciplinary action or a form of penalty.

16        The complainant conceded that no discipline or penalty had been imposed on him, as the respondent understood. In Veillette, the former Board adopted as the definition of “penalty” a sanction established or imposed by a statute or authority to suppress a prohibited act. Pursuant to this definition, it cannot be reasonably argued that how the complainant was advised of the Friesen complaint amounted to a penalty.

17        Regardless, s. 188(c) is relevant only if the respondent applied its standards of discipline in a discriminatory manner against the complainant. At no time did it apply any standards of discipline to him, let alone in a discriminatory manner.

18        The case of Bremsak v. Professional Institute of the Public Service of Canada, 2009 PSLRB 103 at paras. 85 to 87, addressed discriminatory discipline and set out a series of principles to be applied when considering whether a person has been the subject of discriminatory discipline. Key among them is that not every action or every imposition of a penalty is prohibited. The action or penalty must be taken or applied in a discriminatory manner. The essence of discrimination is the arbitrariness of its negative impact. The Board must consider not only the result of the application of disciplinary standards but also the basis for applying them and how they were applied.

19        The word “discriminatory” in this context means applying membership rules in a way to distinguish between individuals or groups on grounds that are illegal, arbitrary, or unreasonable. The complainant has the burden of proving that there was discriminatory conduct on the respondent’s part.

20        Parliament did not endow the Board with the authority to sit in appeal of a trade union decision or to allow it to control the content of a trade union constitution (Beaven v. Telecommunications Workers Union (1996), 100 di 96 at paras. 40 and 41 and Mangatal v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW - Canada) (1997), 105 di 1 at para. 19). It is not enough to allege discrimination, intimidation, or coercion in the abstract. It must be tied to testimony, which does not exist in this case. Accordingly, the Board need not assess the complainant’s allegations of unfair treatment and should dismiss this complaint.

B. For the complainant

21        The evidence has shown that ss. 188(b), (c), and (e) of the Act apply in this case. Paragraph 188(b) applies because the complainant did not have the opportunity to respond to the harassment complaints since they were filed and withdrawn over and over again. Allowing the respondent’s members to file and withdraw complaints was disciplinary, constituted harassment, and was intended to discredit the complainant. The constant filing of harassment complaints precluded him from participating within the respondent. He was shunned and harassed.

22        Paragraph 188(e) applies because the complainant was intimidated, which resulted in the loss of his reputation. The respondent used coercion to get him to drop his harassment complaint against Ms. Bittman in exchange for her complaint and the Friesen complaint being withdrawn. What happens at the executive level of the respondent’s board of directors trickles down to the membership. It has affected his reputation.

IV. Reasons

23        The respondent’s motion for non-suit is allowed. The power to hear a non-suit application is discretionary and incidental to the powers of a panel of the Board. It is not a usual practice of the Board; nor is non-suit readily granted. The parties alone have the full duty to produce the evidence that will meet the legal requirement of their cases. Apart from agreed statements of fact and the decisions of other competent tribunals, and possibly in those instances when issue estoppel might apply, all other facts must be proved through documentary evidence or oral testimony (see United Steelworkers, Local 958 v. Consolidated Canadian Faraday Ltd. (1969), 20 L.A.C. 425), which has not occurred in this case.

24        The burden of proof rested with the complainant to establish on a balance of probabilities that the respondent violated s. 188. Given that he alleged that ss. 188(b), (c), and (e) were violated, he had to establish that he was expelled or suspended from membership in the respondent or denied membership in it by the application of the respondent’s membership rules to him in a discriminatory manner to be successful under s. 188(b). To be successful under s. 188(c), he had to establish that the respondent took disciplinary action against him or imposed any form of penalty on him by applying its standards of discipline to him in a discriminatory manner. To be successful under s. 188(e), he had to establish that he was discriminated against with respect to membership in the respondent, that he was intimidated or coerced, or that the respondent imposed a financial or other penalty on him because (1) he testified or otherwise participated or may do so in a proceeding under Part 1 or Part 2 of the Act, (2) made an application or filed a complaint under Part 1 or presented a grievance under Part 2, or (3) exercised any right under Part 1 or Part 2.

25        In terms of s. 188(b), the complainant presented no evidence to support his allegation. On the contrary, the complainant confirmed in his testimony that he was neither expelled nor suspended from membership in the respondent. Similarly, while he testified that he perceived his status with the members as having been diminished, he led no evidence to prove that he was denied membership by the respondent. Accordingly, since not one of these three results materialized in this case, it is unnecessary for me to analyze whether the respondent’s membership rules were applied to the complainant “in a discriminatory manner.” In any event, the complainant testified that he did not feel in any way discriminated against.

26        With respect to s. 188(c), there is no evidence before me that the respondent either took disciplinary action against, or imposed a form of penalty on, the complainant. The complainant testified that being put through an investigation process was disciplinary action. I cannot agree. Rather, I find as a fact on the evidence presented that no disciplinary action was imposed on the complainant. Accordingly, I agree with the following passage from the former Board in Dumont at para.16:

After receiving a complaint of harassment against the complainant from another employee in 2007, the respondent established an investigation committee… Paragraph 188(c) of the Act gives me jurisdiction to intervene only in situations where the employee organization has allegedly acted in a discriminatory manner by imposing disciplinary action. In this instance, no disciplinary action was imposed. 

27        Finally, the terms “intimidate or coerce” in s. 188(e) are not used lightly (see, for example, Re Cowess First Nation #73, [2015] C.I.R.B.D. No. 48 (QL) at para. 29.) In my view, the oft-cited passage in Atlas Specialty Steels, [1991] OLRB Reports June 728 at para. 12, is equally apropos in the context of considering the meaning of these terms under s. 188(e) of the Act:      

… there must be intimidation or coercion of a sort which seeks to compel a person, amongst other things, to refrain from exercising any of the rights they might enjoy under the Act. There must be some force or threatened force, whether of a physical or non-physical nature…

28        The complainant did testify that he felt intimidated by Mr. Burns’ call on December 10, 2013. As of that date, the complainant had an outstanding complaint against Ms. Bittman that had not been resolved. The complainant argued before me that the respondent used intimidation and coercion to try to get him to drop his harassment complaint in exchange for the two complaints against him being withdrawn. Yet, on cross-examination, the complainant was shown an email dated December 11, 2013, that he wrote to Mr. Burns. In that email, the complainant refers to “an attempt to try to intimidate me” and then goes on to state: “Don, please be advised that not only will I be responding to Ms. Friesons [sic] allegations, but, I will be filing a counter complaint of my own against her including her attempts to use you to intimidate me.” This evidence reinforces to me that the complainant was not intimidated by what transpired during the December 10, 2013, phone call. More importantly, even if he had felt intimidated, the evidence before me falls significantly short of establishing that by this incident alone, the respondent sought to compel the complainant to refrain from exercising any of the rights he might have under the Act. The complainant presented no further evidence to support his allegation that the respondent contravened s. 188(e).  

29        In conclusion, I have determined that the complainant presented insufficient evidence to meet his burden of proof under any of paragraphs (b), (c) or (e) of s. 188 of the Act. Since he failed to discharge that burden of proof, there was no need for the respondent to call any of its own evidence to rebut the complainant’s allegations.

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

V. Order

31        The complaint is dismissed.

August 30, 2016.