FPSLREB Decisions

Heard at Toronto, Ontario,
January 4 to 6, 2017.

REASONS FOR DECISION

I. Complaint before the Board

1         The complainant, Diturije Berberi, filed a complaint pursuant to s. 190(1)(g) of the Public Service Labour Relations Act, (S.C. 2003, c. 22, s. 2; PSLRA) alleging that the Public Service Alliance of Canada (“the respondent”) acted in an arbitrary and discriminatory manner when it refused to pursue the judicial review of a decision of the Canada Human Rights Commission (CHRC), which had disposed of the human rights complaint that she had filed (“complaint #2). She alleged that this failure of the respondent constituted an unfair labour practice within the meaning of s. 185 and that it was a breach of s. 187 of the PSLRA.

II. Summary of the evidence

A. For the complainant

2        The complainant testified that the circumstances that gave rise to this complaint started in 2010 when the respondent withdrew her grievances without her consent after a mediation was held that year, which she found out about only in 2014. Between 2007 and 2014, she assumed that the CHRC would deal with her grievances as part of complaint #1. When she finally discovered what had happened, the CHRC refused to deal with the grievances because they had been resolved.

3        The complainant hired a lawyer to look into the situation and was advised that since the grievances had been withdrawn before adjudication, they had not been dealt with in the grievance process. The judicial review of the CHRC’s decision on complaint #1 resulted in it being sent back to the CHRC to be dealt with on the merits since the allegations had not been dealt with in the grievance process. When that happened, the complainant sought assistance from the respondent with that complaint, which she received.

4        The complainant filed another complaint (“complaint #2”) with the CHRC in late 2007. When the Federal Court returned complaint #1 to the CHRC, the complainant asked that it be combined with complaint #2. The CHRC had no record of complaint #2 and asked her to refile it, which she did in 2014. She dated it for the same date when she initially filled it.

5        The CHRC eventually dismissed complaint #2 because it was untimely. The complainant again went to the respondent, seeking help with the judicial review of the decision on complaint #2. The respondent denied her request, which gave rise to this complaint. According to her, it was not interested in helping her get complaint #2 back on track and was unwilling to help her with her grievances.

6        On November 10, 2015, the complainant was advised that the CHRC would not investigate complaint #2 because the alleged discriminatory acts had occurred more than one year before the complaint was filed, and no reasonable explanation for the delay in filing it had been provided (Exhibit 3, appendix 8).

7        On November 17, 2015, the complainant attempted to contact Jean-Rodrigue Youboua, an employee of the respondent, to discuss the CHRC’s decision on complaint #2. She was seeking the respondent’s help to have the decision in complaint #2 judicially reviewed and to have her two complaints investigated together. They spoke via telephone, after which she sent him a follow-up email (Exhibit 3, appendix 10b).

8        On November 20, 2015, the complainant again contacted Mr. Youboua to determine if the respondent would help her file an application to have the CHRC’s decision on complaint #2 judicially reviewed. He responded by asking her to send him the last submissions she made to the CHRC. (Note that the respondent was not involved in complaint #2 and that it was unaware of what had been filed in September 2015 on the timeliness issue. The complainant had filed those submissions on her own.)

9        The complainant sent him the materials on November 23, 2015, at 12:07 p.m., and followed up with him at 12:22 p.m. to find out what he thought.

10        On December 2, 2015, Mr. Youboua emailed the complainant to advise her that the respondent would not help with the judicial review of complaint #2. She responded by asking for the respondent’s reasons for denying her request.

11        On December 10, 2015, the complainant followed up again with Mr. Youboua, this time inquiring about the whereabouts of the letter explaining the respondent’s reasons for denying her assistance with the judicial review. Mr. Youboua responded and attached a letter explaining the reasons (Exhibit 3, appendices 16 and 17).

12        In its detailed response, the respondent explained to the complainant that complaint #2 had a timeliness issue and that there was an issue with the nature of her allegations with respect to whether they met the threshold for harassment. Mr. Youboua explained to her that she had 30 days from receiving the CHRC’s decision to file for judicial review, which she could pursue on her own if she wished. By then, the complainant had a week left in which to file her judicial review application, which was insufficient time to prepare the application on her own, and she could not afford to contract a lawyer to do it for her. But for the respondent’s delay responding to her request, she would have had time to properly prepare for a judicial review of complaint #2.

13        The complainant testified that she had been relying on the respondent to file the second judicial review application as it had done in the case of the CHRC’s decision in complaint #1. The cases were very closely related, and according to her, it was arbitrary and unreasonable for the respondent to refuse to assist her.

14        From the time she started communicating with Mr. Youboua in 2015, the complainant’s opinion was that he was not familiar with her file and that he was not well informed. He helped her prepare submissions to the CHRC for complaint #1 and for its judicial review. According to her testimony, he helped her “somewhat”, but because he did not know the file, he could not fully assist her. The complainant testified that she did all the work and that he reviewed it.

15        When she asked Mr. Youboua for assistance with complaint #1 after it was referred back to the CHRC, she received a confusing letter from him (Exhibit, 1 tab 3) stating that the respondent would not pursue the judicial review of something that had already been successfully judicially reviewed.

16        According to the complainant, the respondent did not help with either of the complainant’s CHRC complaints despite her requests for assistance. When she was told that no support or help would be provided to judicially review complaint #2, the respondent offered no reasons. The complainant testified that she waited for these reasons before applying for judicial review of complaint #2. Mr. Youboua was aware of the deadline for filing the judicial review application and that the complainant was waiting for his response. He was not diligent in drafting this response; the complainant only received it 8 days after she was told by Mr. Youboua that he would send it to her.

17        According to the complainant Mr. Youboua put no effort into assisting her. Her request for assistance in judicially reviewing complaint #2 was given no true consideration.

18        Mr. Youboua testified on behalf of the respondent. He commenced working for the respondent as a representation officer in September 2010. His job is to assist the respondent’s members with CHRC and Occupational Health and Safety Tribunal files. In January 2012, he spoke to the complainant about complaint #1. He participated and presented submissions on complaint #1 on her behalf. The CHRC’s final decision on complaint #1 was to dismiss it, and that final decision was not judicially reviewed.

19        On September 11, 2015, the respondent received a request from the complainant for assistance with complaint #2. She was offered assistance in the form of input into submissions that she would then draft. She never sent any of her submissions for the respondent’s review, despite its requests for them (Exhibit 1, tab 8). Mr. Youboua spoke to her a number of times, starting on September 15, and he expressed his concerns with the timeliness of her complaints and with the fact that she had not filed any grievances related to the allegation in complaint #2.

20        The CHRC dismissed complaint #2. The complainant sought the respondent’s assistance with filing a judicial review, which it denied via a letter dated November 25, 2015. When making this decision, Mr. Youboua examined the CHRC’s decision, to determine whether it was reasonable, based on the facts. He reviewed relevant case law and consulted his colleagues. It was not unusual to conclude to not recommend judicial review as only 5% to 10% of the cases in which the respondent is involved go to judicial review.

21        During the week of November 23, 2015, Mr. Youboua had two mediations, orders to implement, numerous teleconferences, and several submissions to the CHRC on two other files, which meant he could not get the detailed letter out to the complainant any earlier than November 25. She never raised any objection with this delay, but she took issue with Mr. Youboua’s assessment of the fact situation described in the letter (Exhibit 1, tab 3). She felt that he was taking sides against her.

22        Mr. Youboua tried to explain to the complainant that he was not taking sides. It was difficult to explain the delay in the file, which the CHRC noted. The complaint had been filed in 2007, but the complainant did not seek to pursue it until 2014. If the harassment complaint process ended in 2010, she should have pursued the complaint then. Complaint #2’s filing had several irregularities because the complainant did not follow the proper process, which compounded the timeliness problems. When the complaint was examined objectively, there was insufficient evidence to substantiate the harassment allegations in it.

23        Based on his assessment of the file, Mr. Youboua concluded that it did not warrant expending resources to judicially review the CHRC’s decision on complaint #2. He sent the complainant the respondent’s standard letter to explain that decision. Given her experience of judicially reviewing complaint #1, Mr. Youboua was confident in her ability to pursue the judicial review of complaint #2 on her own.

24        Mr. Youboua described dealing with this file and with the complainant as being very challenging. It was difficult to get information from her, and she often gave confusing answers. The circumstances related to complaint #1, the grievances that were withdrawn following mediation, the filing of complaint #2, the judicial review of complaint #1, and the refusal to judicially review complaint #2 were melded, and it was very difficult to keep the facts straight.

25        On the other hand, the complainant claimed that she always maintained a professional relationship with Mr. Youboua and that he was not up to the task of dealing with her files. He was unaware of the facts and often was misinformed. If her file was too challenging for him, he should have asked for clarification or for assistance. He did not.

III. Summary of the arguments

A. For the complainant

26        Over a period starting in 1998, the complainant was involved in a battle with her employer to be accommodated in the workplace following a motor vehicle accident. She filed numerous grievances related to her employer’s failure to accommodate her. She also filed harassment and human rights complaints with the CHRC. Throughout that multitude of processes, the respondent represented her. Until she asked for assistance with complaint #2, the respondent assisted her, and she relied on its assistance.

27        In November 2015 she was denied further assistance with pursuing her claims before the CHRC with respect to complaint #2. The respondent refused to judicially review the CHRC’s decision on complaint #2. The respondent failed to protect her interests in the accommodation process; she was left on her own. Its representatives were better able to promote her interests because they were familiar with the situation and with her employer’s managers (see Cyr v. Treasury Board (Department of Human Resources and Skills Development), 2011 PSLRB 35).

28        After the mediation in January 2010 in which the complainant and the respondent refused a settlement offer, she expected her grievances to proceed to adjudication. Instead, the respondent withdrew her grievances without her consent based on questions of jurisdiction and timeliness. Their merits were not adjudicated. By withdrawing them without her consent, the respondent failed its duty of fair representation (see Jakutavicius v. Public Service Alliance of Canada, 2005 PSLRB 70).

29        The duty of fair representation extends to those files for which bargaining agent approval is not required (see Taylor v. Public Service Alliance of Canada, 2015 PSLREB 35). Complaint #2 dealt with ongoing issues related to the complainant’s attempts to be accommodated in the workplace and her ongoing harassment by her manager. The respondent was to ensure that the harassment coordinator signed the complaint and that it was filed. The complainant assumed that complaint #2 was filed on December 27, 2007, which was within one year of the incident. Not until June 2014 did she discover that it had never been filed. She was asked to refile it, which she did.

30        In September 2015, on her own, the complainant filed a request to join both complaints. She drafted the submission containing the allegations from 2007 and used the same file number. The respondent did not further investigate what had occurred and did not advise her differently. Even though she asked it for assistance, it provided none.

31        When she received notice from the CHRC on November 10, 2015, stating that complaint #2 was untimely and was being dismissed, the complainant again contacted the respondent, requesting its support with the judicial review application. After hearing nothing through November 17, 2015, she again contacted the respondent. On November 20, 2015, she sent an email requesting an answer. This time, she received a reply from Mr. Youboua asking her to send him a copy of her last submission, which she did on November 23, 2015.

32        On December 2, 2015, the respondent contacted the complainant, advising her that there would be no support for a judicial review of complaint #2 and that a letter would follow with an explanation. She advised Mr. Youboua that she needed the letter before she could decide to pursue a judicial review on her own.

33        On December 10, 2015, since it had still not arrived, the complainant emailed Mr. Youboua. The time limit for filing a judicial review was quickly closing as she had 30 days from the date she received the CHRC’s decision to file for judicial review. He emailed her a copy of the letter, which had been sent to the wrong email address.

34        The respondent acted arbitrarily when it failed to notify the complainant about her right to file for judicial review (see Jakutavicius). The respondent told her she could continue on her own but did not do so in a timely manner. It did not consider the money she had already spent judicially reviewing complaint #1. It should have clarified with the CHRC the filing dates for complaint #2, especially since one of the respondent’srepresentatives had already acknowledged receiving it in March 2007 (Exhibit 3, appendix 9). The submissions filed with complaint #2 were still valid in 2014 and should have been considered on their merits. Complaint #2 should not have been dismissed on a technicality.

35        The crux of this complaint is that the respondent did not intervene with the CHRC concerning the filing date of complaint #2. It is difficult to accept the respondent’s opinion that because the file was challenging, Mr. Youboua did not reach out to the complainant for clarification. A difficult member is not a valid reason to deny that member representation (see Perron v. Customs and Immigration Union, 2013 PSLRB 13). The respondent could not arbitrarily refuse to represent the complainant because she was difficult. Her rights were not protected, because she was not represented.

B. For the respondent

36        The Public Service Labour Relations and Employment Board (“the Board”) has been asked to determine if the respondent breached its duty of fair representation by refusing to pursue the judicial review of a CHRC decision in a timely manner. The scope of the hearing was limited to the allegations in the complaint; that is, it could deal only with the refusal to pursue judicial review. The crux of the complainant’s argument is the respondent’s decision not to intervene with the CHRC concerning the date on which complaint #2 was filed, which is not part of the complaint. The complainant was out of time to file a related complaint under s. 190 of the PSLRA.

37        This complaint is not about the quality of representation, the decision to support the judicial review of complaint #1, or typos and errors in communications. The complainant might have found interactions with Mr. Youboua subpar, but she never raised it before the hearing.

38        In December 2015, a detailed letter was sent to the complainant explaining the respondent’s decision. She was aware of why the CHRC had rejected complaint #2. She had filed it without the respondent’s involvement. The CHRC had never properly accepted it for the failure to comply with procedure. It languished until 2014, when she asked to have it joined with complaint #1.

39        When the respondent agreed to represent the complainant in complaint #1, it found out about complaint #2. She had elected to pursue complaint #2 on her own despite knowing that the respondent was available to represent her. When preliminary issues were raised in August 2015 related to the timeliness of complaint #2, the complainant made submissions on her own. On September 11, 2015, she asked the respondent for assistance with her submissions via email. The deadline for making them was September 16, 2015. On September 14, 2015, the respondent advised her that it was unable to help, given the short notice she had provided. She filed her submissions on September 14, 2015 (Exhibit 3, appendix 7).

40        On November 17, 2015, Mr. Youboua received an email from the complainant that had attached the CHRC’s decision on complaint #2 (Exhibit 1, tab 11). The respondent had requested copies of the submissions and the CHRC’s decision, in response to which she had provided only the decision. Mr. Youboua needed both documents to draft an application for judicial review. She finally provided the submissions on November 23, 2015. On December 2, 2015, she was notified via email that the respondent would not support a judicial review application of complaint #2. That notification was also confirmed in a letter.

41        There is no evidence of animus or bad faith in any of the dealings between the respondent and the complainant. It is unclear what she wanted. She knew on December 2, 2015, that the respondent would not support her application for judicial review, which left her plenty of time to submit the application on her own. She had previous experience doing that, and there was no need for her to wait for the respondent’s letter before doing it.

42        To contextualize this application, the complainant wanted the respondent’s assistance, regardless of the likelihood of success. It was clear from her evidence that she received assistance when she asked for it. She recanted her evidence several times in the face of proof that she had been provided advice. The respondent did not withhold representation. She refused to accept the outcomes and the legal opinion.

43        The complainant had the burden of proving that the respondent acted arbitrarily. The respondent is entitled to refuse to represent a member. A complaint under s. 190 of the PSLRA is not an appeal mechanism for a decision the respondent made. The December letter that it sent to her clearly shows that a thorough investigation of her request had been made, not a perfunctory or cursory one. The bar for establishing arbitrary conduct is purposely set high. The respondent has substantial latitude when making representation decisions (see Jean-Pierre v. Arcand, 2012 PSLRB 23 at para. 48).

44        It is not for the Board to evaluate the respondent’s legal opinion. Merely because the complainant does not agree with that opinion does not mean that she did not receive proper representation. There is no obligation to pursue an action if it has been fairly evaluated with respect to its chances of success (see Tran v. Professional Institute of the Public Service of Canada, 2014 PSLRB 71 at paras. 102 and 107).

45        The respondent is not obliged to pursue every grievance or complaint (see Canadian Merchant Service Guild v. Gagnon, [1984] 1 S.C.R. 509; and Detorakis v. Professional Institute of the Public Service of Canada, 2009 PSLRB 139). Like in Jackson v. Customs and Immigration Union and Public Service Alliance of Canada, 2013 PSLRB 31, the complainant in this case alleged that the existence of communication problems with Mr. Youboua were evidence that the respondent chose not to represent her. There must be positive evidence that the communication issues were linked to the refusal to represent.

46        The respondent provided the complainant with an extensive legal opinion for its decision, which it was not obligated to do (see Jean-Pierre and Cloutier v. Public Service Alliance of Canada, 2008 PSLRB 12). She was advised in a timely manner and with sufficient time for her to pursue the judicial review on her own as she had done with complaint #1. Any delay responding to her request did not create any prejudice and did not constitute an unfair labour practice (see Detorakis).

IV. Reasons

47        In Canadian Merchant Service Guild, the Supreme Court of Canada stated that when deciding whether to support a grievance, or in this case the judicial review of a CHRC decision, a bargaining agent must take into account the significance and importance of the grievance to the grievor. Regardless of whether dealing with the complainant is challenging and whether the complainant is unclear or not forthcoming in communications, the respondent must meet its obligations, as established in Canadian Merchant Service Guild and as codified in s. 187 of the PSLRA as follows:

187 No employee organization that is certified as the bargaining agent for a bargaining unit, and none of its officers and representatives, shall act in a manner that is arbitrary or discriminatory or that it is in bad faith in the representation of any employee in the bargaining unit.

48        However, the onus was on the complainant to establish that the respondent acted in a manner that violated s. 187 of the PSLRA (see Jean-Pierre, at para. 42). It was not sufficient for her to show that she was unhappy with its decisions or that she disagreed with how things were being processed. She had to demonstrate that the respondent’s actions or inactions with which she took exception were arbitrary, discriminatory, or in bad faith. The Board’s role is note to rule on the merits of the respondent’s decision but rather on the decision-making process that led to the impugned decision (see Halfacree v. Public Service Alliance of Canada, 2009 PSLRB 28).

49        I must examine how the decision was made to determine whether the complainant has proven that the respondent acted in an arbitrary or discriminatory manner or in bad faith when it determined that it would not support her judicial review application. I agree with the following passage from Jakutavicius, at para. 126:

[126] Having no obligation to take grievances to adjudication, and in the absence of arbitrariness, discrimination or bad faith, the PSAC should be allowed its full discretion to make these decisions, as it has exclusive rights regarding the collective agreement. What is important is that the respondent gave careful consideration to the possibility of taking this grievance to adjudication and did a thorough and fair analysis before deciding not to.

50        I am satisfied that the respondent carefully considered the possibility of judicially reviewing the CHRC’s decision in complaint #2. Proof is in the letter sent to the complainant in December 2015 which clearly sets out the analysis by which the respondent reached its decision. It carried out a thorough and fair analysis before deciding to deny the request for support in the judicial review process.

51        This is not a case in which a respondent refused to provide representation because a complainant was difficult to deal with, as in Perron, cited by the complainant. The respondent’s decision was based on an analysis of the facts and on the likelihood of success.

52        This hearing took four days, primarily due to the complainant’s evidence, in which she attempted to relitigate grievances that might or might not have been withdrawn and complaint #1, all of which were out of time under s. 190 of the PSLRA, beyond my jurisdiction, and of no significance or consequence to the matter before me. There was a paucity of evidence related to the actual subject of this complaint, which is the allegation that the respondent failed its duty of fair representation by refusing to pursue the judicial review of the CHRC’s decision in complaint #2.

53        It was abundantly clear that the complainant desired as an outcome of this complaint that someone agree with her that her employer had wronged her in 2007, which is something I cannot do.

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

V. Order

55        The complaint is dismissed.

May 2, 2017.