FPSLREB Decisions

Heard at Moncton, New Brunswick, and Charlottetown, Prince Edward Island,
August 25 and 26, 2016, and January 24, 2017.

REASONS FOR DECISION

I. Individual grievance referred to adjudication

1        The grievor, Colin Bassett, grieved the employer’s (the Correctional Service of Canada (CSC)) initiation of actions to recoup from his pay pension contributions that had not been deducted as required from a payment made to him in the settlement of a human rights complaint he had filed. The grievor alleged that that action was further discrimination, in violation of article 19 of the agreement between the Treasury Board and the Public Service Alliance of Canada for the Program and Administrative Services Group (all employees), with the expiry date of June 20, 2014 (“the collective agreement”).

2        The grievance was referred to adjudication on May 27, 2014. On the same date, the Canadian Human Rights Commission was notified of the grievance, in accordance with the Public Service Labour Relations Board Regulations. After initially indicating that it would participate in the process, the CHRC indicated on August 26, 2014, that it no longer intended to make submissions on the matter.

3        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 as well as the former Public Service Staffing Tribunal. The Board heard this grievance under the authority of the related implementing statutory instruments.

II. Summary of the evidence

4        The grievance was filed as a result of a payment made in the settlement of a human rights complaint the grievor filed against the employer. The grievance was filed under article 19 of the collective agreement, alleging the implementation of the settlement agreement was further discrimination against the grievor. The parties filed an agreed statement of facts, which reads as follows:

1. The parties are bound by the Collective Agreement between the Treasury Board and the Public Service Alliance of Canada, Program and Administrative Services, Expiry June 21, 2014 (Exhibit 1, Collective Agreement)

2. Colin Basset started work with Correctional Service Canada (CSC) in April of 2002 through a series of contracts as a Parole Officer (WP04) in Toronto.

3. In the fall of 2004 Mr. Basset developed Chronic Post Traumatic Stress Disorder (PTSD), attributable to his work as per the Workplace Safety and Insurance Board (WSIB)’s decision dated August 17, 2009.

4. Mr. Basset filed a human rights complaint in March of 2005 that alleged discrimination pursuant to section 7 of the Canadian Human Rights Act. This complaint was settled in March 2009. For purposes of this grievance, the relevant portions of the Minutes of Settlement are:

• [2] The respondent and the Complainant agree that the Complainant will be reinstated to full-time indeterminate employment with the Respondent in a WP 04 position as of April 1, 2005. It is understood that from December 11, 2004 until March 31, 2005 the Complainant will have been on sick leave without pay.
• [13] Within sixty days of the date that the Respondent is notified that the Canadian Human Rights Commission has approved these Minutes of Settlement, the Respondent undertakes, pursuant to Ss. 53(2) (c) )of the Canadian Human Rights Act (hereinafter the “Act”) to reimburse the Complainant for wages owing to a full-time indeterminate employee on full strength with the respondent, including any retroactive increases provided for according to the terms of the collective agreement, sick leave credits, vacation leave credits, offender supervision allowance and pension contributions retroactive to April 1, 2005, subject to deductions and adjustments to reflect sums and/or benefits received from any other sources.
• [15] It is understood that the Respondent is required to remit its portion of the pension contributions to the Superannuation Directorate and will provide written confirmation of such to the Complainant. (Exhibit 2, Minutes of Settlement).

5. On July 6, 2009, the employer provided Mr. Basset with a cheque in the amount of $53,424.93 as the payment required under clause 13 of the Minutes of Settlement. (Exhibit 3, July 6 Letter from Ron Stolz Correctional Service Canada)

6. On August 9, 2012 Mr.Basset sent an email to the employer’s Pay and Benefits section as follows:

• I require confirmation that my Pension contributions have been paid in full from April 2002 to Present. I have a concern that during my injury on Duty period between Oct 2004 to March 2009 (which was retroactively approved by WSIB Ontario) – I may not have paid my Pensionable contributions. (Exhibit 4, August 9, 2012 email from Colin Basset to GEN-ATL RHQ Pay & Benefits).

7. Inquiries into Mr. Bassett’s email of August 9, 2012 disclosed that the employee portion of pension contributions had not been remitted.

8. On April 18^th, 2013 Mr. Basset was informed that the employer would be initiating recovery action for $21,346.08 of deficiencies that were not collected from December 11, 2004 to August 5, 2009.

9. Mr. Basset filed a grievance dated May 23, 2013 (Exhibit 5, Grievance).

10. On August 12^th, 2013, the President of the Union for Solicitor General Employees (USGE) wrote the Commissioner of CSC requesting that the employer use their discretionary authority to make to Mr. Basset a one-time ex gratia payment for the sum owing (Exhibit 6, August 12 letter from John Edmunds).

11. On August 26, 2013 the CSC Canada wrote the President of USGE indicating that a full review of the overpayment issue will be completed by September 20, 2013 (Exhibit 7 August 26, 2013 letter from Don Head).

12. On January 28, 2014 the employer met with the grievor to explain the deficiencies and payment plan and followed up with a letter outlining the same (Exhibit 8, January 28, 2014 letter from Annie Babin).

[Sic throughout]

5        The grievor testified that in 2009, when he received the payment from the employer pursuant to the minutes of settlement, he did not know the amount he would be paid but that he expected that the employer would deduct his pension contributions. When he received the cheque, there was no explanation of how the amount had been calculated. He had no reason to believe that the amount he received was not accurate and that the pension contributions had not been deducted.

6        In February 2011, the grievor realized that the employer had made errors in calculating his entitlements. He wrote to it about these errors, and in March 2011, the employer informed him that an error had been made in the calculation of his lump-sum payment; he had been underpaid by 20 days. A payment for that period was attached to the March 10, 2011, letter confirming the underpayment.

7        In August 2012, the grievor contacted the employer again, this time to confirm whether his pension contributions had been paid in full from 2002 to 2012. He had a concern that during the period he had received workers’ compensation benefits, his contributions had not been made.

8        The grievor stated that he was upset that he had to “babysit” the implementation of an agreement that was intended to put an end to the “turmoil” he suffered at the hands of the employer. Each error made by the employer in the implementation of the settlement agreement brought him back into the turmoil. He demanded that the employer recognize the impact of its failures and admit them. He did not recall receiving a response to his demands. In the grievor’s opinion, he should not have had to write to the employer to ensure that it made the payments agreed to under the minutes of settlement. Given the settlement agreement, the grievor testified that he should not have had a $21 000 debt.

9        It took a considerable period before the employer confirmed that the pension contributions had not been made. The grievor consulted his bargaining agent, which intervened with the CSC’s commissioner and asked that the employer make a one-time ex gratia payment to the grievor in the amount required to wipe out the pension contribution deficiency. The employer refused.

10        On January 28, 2014, it advised the grievor that the deficiency in contributions to his pension plan would be recouped from his pay. The amount of $80.60 was to be deducted from the next 250 pays, commencing on February 26, 2014. The grievor testified that he agreed to these deductions until a third party made a decision on his grievance. He had no choice; the employer intimidated him into accepting the proposed plan to recoup the deficiency.

11        The grievor testified that between 2004 and 2009, he depleted every financial resource he had. He exhausted his sick leave and his employment insurance entitlements, and when they ran out, he waited 12 months before Sun Life and the Workplace Safety and Insurance Board recognized his claims, during which he received no rehabilitation or income. He went long periods without any income. Between 2004 and 2009, he paid for his own therapy, medication, and transportation costs. He spent four-and-a-half years living in his parents’ basement in Prince Edward Island, financially destitute. By 2009, he was approximately $50 000 in debt.

12        On July 6, 2009, the employer sent the grievor a cheque “in the amount of $53, 424.93 for payment regarding item #13 of the settlement agreement” (Exhibit 3, Tab 3). The grievor purchased a home on July 21, 2009 with a down payment of $29 000 from the lump sum he had received from the employer. When the employer began in 2014 to recoup the pension plan contributions, the grievor was living cheque-to-cheque and needed the $200 per month that began to be deducted from his pay because the employer failed to properly implement the settlement agreement. He testified that the lion’s share of his settlement went to pay off the debt he had incurred as a result of his attempts to right the discrimination he suffered at the employer’s hands. The negative impact on his life caused by the deduction of the additional $200 per month was directly tied to the minutes of settlement and to the employer’s failure to meet its obligations.

13        The grievor identified the CSC’s commissioner as a particular perpetrator of the discrimination against him. That person had the control, opportunity, and authority to have the recouping of the pension contributions stopped, thus ending the grievor’s turmoil, but he did not. As a result, the employer’s discrimination against the grievor continued, constituting a violation of article 19 of the collective agreement.

14        The grievor testified that his taxes were an “extreme headache” and that they were “screwed up” for at least three years after the payment he received from the employer. At the end of it, he owed approximately $40 000 in taxes. When he received his 2010 T4, he assumed that whatever should have been deducted from the lump-sum payment had been, including his pension contributions.

15        The grievor always intended to contribute to his pension plan for the entire period he was absent from the workplace between 2004 and 2009. He intends to draw his full pension at the end of his career. In August 2012, he attempted to speak to the employer’s compensation and pension advisors via email (Exhibit 3, tab 9) but just became more frustrated with the employer. He did not recall the employer making any attempt to provide him answers despite vaguely remembering email correspondence (Exhibit 4) related to his questions. He testified that he did not recall something that he considered traumatic.

16        In conclusion, the grievor testified that he recognized his obligation to pay his pension contributions but stated that because the employer had the obligation to make the deductions from the lump-sum payment and to live up to the terms of the minutes of settlement, it is the employer’s responsibility to pay them, not his.

17        The grievor’s psychotherapist, Bill Campbell, testified on his behalf. The employer’s representative objected to the inclusion of Mr. Campbell’s testimony on the basis that it was irrelevant to the grievance. I accepted the evidence with the proviso that it would be assessed for relevance to the matter before me. I find that it is of minimal relevance as to whether the employer discriminated against the grievor by requiring him to pay his pension contributions arrears.

18        However, it is marginally relevant to explain the gaps in the grievor’s recall of events. According to Mr. Campbell, the grievor demonstrates forgetfulness to certain events. He reacts emotionally to activating events rather than intellectually. The trigger of being notified that he owed pension contributions opened up all the issues that the grievor had hoped to resolve with the settlement of his human rights complaint. In Mr. Campbell’s opinion, being forced to repay the overpayment would aggravate the grievor’s symptoms.

19        Patty Allain is employed as a senior advisor at the Government of Canada Pension Centre. She deals with complex pension cases such as the grievor’s but did not deal with his case. She testified that pursuant to the Public Service Superannuation Act (R.S.C., 1985, c. P-36; PSSA) and its regulations, federal government employees are required to contribute to the pension plan by payroll deductions that are transmitted to the pension centre, which triggers the payment of the employer’s share of the contributions. If an employee is on leave without pay, he or she may continue to pay these deductions or wait until he or she returns to the workplace and pay them then via a lump-sum payment, a retirement savings plan transfer, post-dated cheques, additional payroll deductions, or a combination of these methods. Pension contributions may be waived only if an employee elects not to include the periods without pay in the calculation of his or her pensionable service.

20        The grievor’s representative conceded that the grievor is required to pay his pension contributions and that the calculation of the amount identified as owing was based on legislation.

21        Nathalie Brideau was the acting compensation manager in the CSC’s Atlantic Region in 2013. She became involved with the grievor’s file in August or September 2013 when the CSC’s national headquarters wanted to know his employment history. When she put together his employment history, she determined that when he was on disability insurance, he was struck off strength. During this period, and when he was on workers’ compensation benefits, he did not make his pension contributions. The CSC’s Ontario Region Finance Division was responsible for implementing the settlement relative to these absences. The compensation section was not aware of a settlement.

22        According to her testimony, the grievor met with Ms. Brideau in January 2014. They discussed payroll deductions and what was owed to his pension account. She advised him that the deductions needed to start as soon as possible.

23        Tiffany Williams was the compensation supervisor for the CSC’s Ontario Region at the relevant time. She testified that the employer’s Finance Division processed lump-sum payments related to damage awards. It issued the cheques to the grievor in 2009 for damages and in 2011 when his entitlements were recalculated, not Compensation and Benefits. The department responsible for ensuring that pension contributions are deducted was unaware of the payments made to the grievor, so there was no opportunity to ensure that the pension contributions were deducted.

III. Summary of the arguments

A. For the grievor

24        This grievance was filed about an error that the employer made when it implemented a settlement between the CSC and the grievor under the Canadian Human Rights Act (R.S.C., 1985, c. H-6; CHRA). The employer violated article 19 of the collective agreement by failing to properly implement the minutes of settlement, which further aggravated the grievor’s pre-existing medical condition. He testified that the settlement implementation had the opposite effect of what the minutes of settlement were supposed to do. Everyone was meant to move on and to continue the employment relationship. The error discovered many years after the agreement was signed caused distress, even without intent.

25        The grievor concedes that a mistake was made but that that mistake had affected him adversely. He is not claiming that the pension contributions and supplementary benefit contributions should not have been deducted. Instead, he argues that the employer was estopped from demanding these payments four-and-a-half years after he received the payment under the minutes of settlement. He is asking for an ex gratia payment from the employer in the sum of $21 274.04.

26        The grievor relies on the equitable doctrine of estoppel, which, according to Lord Denning, a well-known and respected English jurist, is the most flexible and useful of equitable remedies. The grievor recognizes that there is no specific reference to it in the grievance or in the remedy identified. Regardless, this Board has the authority to apply that doctrine in these circumstances.

27        The employer had a duty of care towards the grievor and should have exercised it when implementing the minutes of settlement, particularly given the knowledge it had of his condition. This is not a typical case of an overpayment that the employer attempted to recoup. This grievance is about an error made in implementing clause 13 of the minutes of settlement that occurred in 2009 and that was not brought to the grievor’s attention until 2012.

28        There is a legal basis for the grievor’s proposal. Under the Financial Administration Act (R.S.C., 1985, c. F-11), the CSC’s commissioner has the discretion to make an ex gratia payment to the grievor, which could be used to pay off the pension arrears (see Brown and Beatty, Canadian Labour Arbitration, 4th edition, at paras. 2:2211 and 2:2220).

29        The employer’s initial payment under clause 13 to the grievor was represented as being the accurate and final amount he was due under the settlement. The employer provided no explanation as to how that amount was calculated or that the grievor’s pension contributions had not been deducted. For five years, the employer made no attempt to recover the overpayment, so the grievor was justified thinking that the payment he had received was accurate. It was not his responsibility to ensure or to know whether the pension deductions had been made.

30        The employer made a promise that the amount paid to the grievor was full and final, and it was solidified by five years of silence. The grievor relied to his detriment on the employer’s representation that the amount paid was full and final. It is unjust to go back on the agreement struck to settle the human rights complaint. Therefore, in fairness, the Board should order that the employer make an ex gratia payment as a result of its breach of the agreement that the payment made to the grievor would be full and final, using the equitable doctrine of estoppel. It is only fair that the employer be so ordered, particularly in light of the fact of the human rights implications, the context as to why the payment was made, and the lingering impact on the grievor.

31        The grievor is not asking for damages for a violation of the CHRA. It was referenced merely because the overpayment was directly linked to his condition and to previous CHRA settlement. The employer’s actions have resulted in distress, which has aggravated the grievor’s pre-existing post-traumatic stress disorder (PTSD). Section 7 of the CHRA applies because of the adverse effects that arose from a neutral practice, which affected the grievor’s disability. The emotional distress caused by the financial burden and by reopening the minutes of settlement has caused him to be vigilant about its implementation. The employer’s duty of care to ensure that the minutes of settlement were properly implemented arose from its knowledge of the grievor’s condition.

32        The case of Ontario Human Rights Commission v. Simpsons-Sears, [1985] 2 S.C.R. 536 (O’Malley), sets out what constitutes adverse-effect discrimination. In this case, the grievor suffered from chronic PTSD directly related to his employment. He filed a complaint under the CHRA in 2005, which was settled by the minutes of settlement. The settlement was to make him whole, and when he received a cheque from the employer, he assumed that the calculations were accurate and because of that he could not move on. The employer provided no explanation of the calculations behind the balance.

33        The grievor’s finances were a mess in 2009 when the payment was made. He detrimentally relied on the payment received from the employer to relocate and to purchase a home and a car, which all were concrete proof of his recovery from his injury. He used $29 000 as a down payment on his house. The employer then tried to recoup the overpayment created by its error. The grievor seeks damages for the employer’s breach of its duty of care to be applied to his pension plan arrears.

34        In Lapointe v. Treasury Board (Department of Human Resources and Skills Development), 2011 PSLRB 57, the grievor in that case received more than $9000 in overpayment. He had not been put on the correct pay scale and was allowed to remain on the wrong one for the four years immediately preceding his retirement. The recovery of the overpayment damaged his ability to enjoy his retirement. The employer could have written off the debt but did not. The employer misled the grievor for four years while paying him on the wrong pay scale. The adjudicator found that it was a promise by the employer and ordered that it reimburse the more than $9000 it recouped from the grievor.

35        In Molbak v. Treasury Board (Revenue Canada, Taxation), PSSRB File No. 166-02-26472 (19950928), [1995] C.P.S.S.R.B. No. 95 (QL), the grievor in that case received an overpayment of 2% of her salary. She bought a condo based on her inflated salary. The adjudicator applied the doctrine of estoppel, allowed the grievance, and ordered the repayment of the amount. This decision was upheld on judicial review.

36        In Murchison v. Treasury Board (Department of Human Resources and Skills Development), 2010 PSLRB 93, the employer had made an error in the amount of leave available to the grievor in that case, who then used the leave. Only five years later did the employer discover its error and try to recoup its value from the grievor. The adjudicator determined that the employer had not been vigilant and that waiting five years before recouping that value was unreasonable.

37        In this case, the grievor brought the question of the pension contributions deductions to the employer’s attention in 2012. In April 2013, the employer confirmed that an overpayment had occurred. Some eight months later, and more than four years after the settlement agreement had been implemented, the employer demanded that the grievor pay his pension contributions retroactively. Estoppel is the crux of the grievor’s argument.

38        The requirement to repay the employer may reinjure the grievor, which Mr. Campbell confirmed. The conflict with the employer over the implementation of the settlement of his human rights complaint has been a trigger for the grievor’s symptoms. If the repayment is allowed to continue, the extra stress it causes could be life threatening to him.

39        The employer’s witnesses spoke only to the process involved in calculating and remitting pension contributions and the obligation to make them. Normally, pension contribution deficiencies are identified and resolved as soon as possible when an employee returns from leave without pay. Certainly, the payments begin within three months of the employee’s return. None of the employer’s witnesses could explain why that did not happen for the grievor. As in Defoy v. Treasury Board (Employment and Immigration Canada), PSSRB File No. 166-02-25506 (19941025), [1994] C.P.S.S.R.B. No. 131 (QL), the grievor would not have bought his home but for the fact that he assumed that the payment he received from the employer was correct. The grievor relied on a letter from the employer and a cheque, without an explanation of how the amount on the cheque was calculated.

40        There is a clear human rights link between the error and how the employer recovered the overpayment. That recovery adversely affected the grievor. The employer knew of his chronic illness, which he had developed in the course of his employment. He is being victimized again by that recovery.

B. For the employer

41        This Board is without jurisdiction to deal with grievances having as their pith and substance the requirement that an employee make contributions to the Public Service Superannuation Plan pursuant to the PSSA. The question before the Board is whether the employer can waive an employee’s statutory requirement to make pension contributions. The answer is no. The grievor could have elected not to include the period for which he had not made payments in the calculation of his years of pensionable service. But when he chose to include it, he was obligated to make his contributions for that period, which triggered the employer to pay its share.

42        It was the grievor’s choice. He admitted to his obligation to make the payments. He now seeks to obtain indirectly what he could not receive directly. Under the minutes of settlement, the employer agreed to pay its share of the pension contributions, which could not be done unless the grievor had paid his. In essence, he is asking the Board to order the employer to make an ex gratia payment equal to the arrears in his pension contribution or, described in another way, to pay both the employee’s and employer’s shares.

43        To waive the payment of the pension contributions in such a way as to make it fall within the Board’s jurisdiction would require that such a proviso be included in the collective agreement. Section 113 of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA)) prohibits including in a collective agreement any term or condition established under the PSSA. Furthermore, this Board cannot order anything that has the effect of changing legislation (see s. 150(1)(a) of the PSLRA and Association of Justice Counsel v. Treasury Board, 2009 PSLRB 20); nor does it have the authority to amend a collective agreement (s. 229 of the PSLRA). (See also Pelletier v. Treasury Board (Department of Human Resources and Skills Development), 2011 PSLRB 117; Dodd v. Canada Revenue Agency, 2015 PSLREB 8; and Barbot v. Treasury Board (Department of Foreign Affairs, Trade and Development), 2016 PSLREB 113).

44        The pith and substance of this grievance is the obligation to pay the employee’s share of the pension contributions. Clause 13 of the minutes of settlement does not require the employer to deduct from the sum due under the agreement the grievor’s pension contributions. If clause 13 was intended to include that deduction, clause 15, which states that the employer was to pay its share of the pension contributions, would be redundant, as the employer’s contributions would be triggered by the payment of the employee’s portion. The employer’s Finance Division used the lump-sum method of paying the grievor to put as much cash in his hands as possible. If he disputed this method or the amount that he received, he had the option of using the mediation provision in clause 23.

45        In the event that the Board accepts jurisdiction, the principles in Amos v. Deputy Head (Department of Public Works and Government Services), 2009 PSLRB 61, apply. Ms. Allain testified that the contributions cannot be waived if an employee elects to include periods of leave without pay in his or her total years of pensionable service. The PSSA identifies the contributor as the employee. Ordering the employer to make contributions on the grievor’s behalf would require changing the definition of “contributor”, which is prohibited.

46        The grievor has argued that the issuance of the lump-sum payment to him was a representation by the employer that his pension deductions had been made. The letter in question contains no details, so there is no way to imply from it that the pension contributions had been deducted. The grievor assumed that it made him whole, and since the question of his pension was of particular importance to him, why did he not clarify this at that time or even later on, since he had other communications with the employer as to the accuracy of the payment?

47        There is no basis upon which to support an argument for estoppel. The employer made no clear representation that it would deduct the pension contributions. The minutes of settlement lack clarity about that. Even in the midst of ongoing communications between the parties between 2009 and 2012, when the grievor raised the question, there was no discussion of the grievor’s pension contributions. His T4 received in 2010 clearly indicated that he had made no pension contributions.

48        The employer’s letter including the first cheque was not clear and unambiguous. The employer did not state that it had made all the relevant deductions. This letter is not sufficient to support an estoppel argument. In the cases the grievor’s representative cited, the employers had made clear errors and clear and unequivocal representations that despite the errors, the information was correct. The grievors in those cases relied upon these representations to their detriment.

49        In this case, the employer made no clear and unequivocal representations, and the grievor made no detrimental reliance. How would the employer have known that he would rely on the sum paid to him in the settlement of his human rights complaint to secure a mortgage? What the employer reasonably understood cannot be inferred, and there is no evidence to establish what it knew. It is also unclear to what extent the grievor’s hardship was caused by his detrimental reliance on representations by the employer.

50        As to the remedy sought by the grievor, the Board may make an order for damages if discrimination is found. Ex gratia payments are governed by policies that are outside its jurisdiction. It cannot order the employer to exercise its jurisdiction under separate legislation and policies. There is no jurisprudence stating that a disagreement over the implementation of a human rights settlement becomes harassment. The entire situation must be looked at contextually.

IV. Reasons

51        Before I can render a decision in this case, I must first determine the question before me. It is clear from the grievance that the grievor alleged a violation of article 19 of the collective agreement. However, his representative argued extensively that the employer is estopped from recovering the pension contributions arrears.

52        Ostensibly, the employer has discriminated against the grievor on the basis of disability by requiring him to make his statutorily required pension contributions. Based on the evidence before me, I conclude that the grievor is of the opinion that his pension contributions were to be deducted from the payout of the settlement reached in his human rights complaint against the employer. Essentially, the theory is that since the settlement was proof of the employer’s discrimination against him, any failure to abide by what he considered the terms of the agreement was further discrimination.

53        The arguments presented were very fluid and had little to nothing to do with what must first be decided, which is whether the grievor has been discriminated against. My jurisdiction comes from the PSLRA and the wording of the grievance and not from what was presented by way of argument at the hearing. The question before me is not whether the employer is estopped from recovering unpaid pension contributions from the grievor but rather whether doing so is discrimination.

54        The grievor’s representative made a passing reference to O’Malley but made no argument on how what happened to the grievor constituted discrimination, whether direct or indirect. It is unclear whether the alleged discrimination is the employer’s enforcement of the statutory requirements, which had the adverse impact of discrimination, or its error of not deducting the pension contributions in the first place and requiring that they be paid. As part of his grievance, the grievor did not allege that the CHRA had been violated.

55        To succeed in a grievance filed under article 19 of the collective agreement, a grievor must establish that the employer has in some way contravened the following:

Article 19

No Discrimination

19.01 There shall be no discrimination, interference, restriction, coercion, harassment, intimidation, or any disciplinary action exercised or practiced with respect to an employee by reason of age, race, creed, colour, national or ethnic origin, religious affiliation, sex, sexual orientation, family status, mental or physical disability, membership or activity in the Alliance, marital status or a conviction for which a pardon has been granted.

56        To establish that an employer engaged in a discriminatory practice, a grievor must first establish a prima facie case of discrimination, which is one that covers the allegations made and that if the allegations are believed, would be complete and sufficient to justify a finding in the grievor’s favour in the absence of an answer from the employer (see O’Malley, at para. 28). The Board cannot consider the employer’s answer before determining whether a prima facie case of discrimination has been established (see Lincoln v. Bay Ferries Ltd., 2004 FCA 204 at para. 22).

57        An employer faced with a prima facie case can avoid an adverse finding by calling evidence to provide a reasonable explanation that shows its actions were in fact not discriminatory or by establishing a statutory defence that justifies the discrimination (see A.B. v. Eazy Express Inc., 2014 CHRT 35 at para. 13). If a reasonable explanation is given, it is up to the grievor to demonstrate that the explanation is merely a pretext for discrimination (see Maillet v. Canada (Attorney General), 2005 CHRT 48 at para. 4).

58        It is not necessary that discriminatory considerations be the sole reason for the actions at issue to substantiate a discrimination claim. A grievor need only show that discrimination was one of the factors in the employer’s decision (see Holden v. Canadian National Railway Company (1990), 14 C.H.R.R. D/12 (F.C.A.)). The standard of proof in discrimination cases is the civil standard of the balance of probabilities (see Public Service Alliance of Canada v. Canada (Department of National Defence), [1996] 3 FC 789 (C.A.)).

59        It is insufficient to meet his burden of proof and to establish a prima facie case of discrimination for the grievor to merely state that the employer knew he had a disability and that anything that upset him would constitute discrimination. A grievor must show a nexus between a prohibited ground of discrimination and the distinction, exclusion, or preference of which he or she complains or in other words that the ground in question was a factor in the distinction, exclusion, or preference. It is not essential that that nexus be exclusive; for a particular decision or action to be considered discriminatory, the prohibited ground need only have contributed to it (see Quebec (Commission des droits de la personne et des droits de la jeunesse v. Bombardier Inc. (Bombardier Aerospace Training Centre), 2015 SCC 39 at paras. 48 and 52; and Bodnar v. Deputy Head (Correctional Service of Canada), 2016 PSLREB 71 at para. 142).

60        For the reasons that follow, I find that the grievor has failed to meet the initial onus of establishing a prima facie case of discrimination. As set out in Moore v. British Columbia (Education), [2012] 3 SCR 360, 2012 SCC 61, at para. 33:

... to demonstrate prima facie discrimination, complainants are required to show that they have a characteristic protected from discrimination under the Code; that they experienced an adverse impact with respect to the service; and that the protected characteristic was a factor in the adverse impact.

61        In this case the grievor has chronic PTSD, a recognized disability under the Code. The grievor has adduced evidence as to the adverse impact, his emotional distress and the additional debts, that he has suffered as a result of the failure of the employer to make his pension contribution deductions and its subsequent recovery action.

62        However, as set out above, it is not sufficient to make a bald assertion that the protected characteristic was a factor in the adverse impact. The grievor has not led any evidence whatsoever to suggest that the statutory requirement that a public service employee make contributions to his or her pension plan, or the belated recovery of these contributions, is linked to a prohibited ground under the CHRA.

63        That said, there is no prima facie case of discrimination, and this grievance must be dismissed. Even if I am wrong, the employer has clearly established statutory authority for requiring that the grievor make his pension contributions if he elects to have his period of leave without pay included in the pensionable service calculation. The grievor had the option of waiving the period of leave without pay, but when he chose not to, he became obligated to make the pension contributions.

64        Unlike the cases that the grievor’s representative cited, this is not a case of an overpayment of salary or of a miscalculation of leave entitlements. It is a case of a statutory requirement with which the employer and the grievor equally have an obligation to comply, which was conceded in the course of argument.

65        Much time was spent arguing that the employer was estopped from pursuing the recovery of an overpayment of the amount due under the settlement. In my opinion, that is not an accurate reflection of what happened. The employer paid the grievor an amount representing the net amount he was due under the settlement. It neglected to deduct his pension contributions before making the payment, which was an error, and it does not relieve the grievor from making the contributions as only he can pay the contributor’s portion of the premiums. This is a statutory obligation pursuant to the PSSA over which I have no jurisdiction (see Pelletier, Dodd, and Barbot).

66        Regardless, this is not a proper case for the Board to make an equitable award as argued by the grievor’s representative. The employer made an error in the implementation of a human rights complaint settlement that was clearly identifiable. The grievor knew or ought to have known in 2010 when he received his T4 that the contributions had not been deducted from the lump sum paid to him. When he was told that he would be required to make additional monthly contributions to his pension plan if he elected to have the period of leave without pay covered, he was clear that he intended to have all his years of service included in his pension. He was also aware that there was a cost to doing so. The letters to him that included the cheques are lacking in detail, but that does not constitute a representation upon which the grievor could base an argument for estoppel, particularly since he was aware that errors had been made in the calculation of monies owed to him.

67        In Molbak, the Court reasoned that the decision of the employer to collect the overpayment of salary arose directly from the improper application of the collective agreement to the circumstances of the applicant. As a result, the arbitrator had jurisdiction to hear the grievance and to apply the principle of estoppel.

68        In Menard v. Canada, [1992] 3 F.C. 521 the Federal Court considered the jurisdiction of an adjudicator under the PSSRA to consider the recovery of an overpayment issue. The employer argued the adjudicator had no jurisdiction as it was not an interpretation or application of the collective agreement. The Court held at page 528:

With respect for the contrary view, I cannot accept this argument. The very source of the dispute between the parties is this erroneous interpretation given by the parties to the agreement, and its "improper application" to the applicants' case (the expression is that used by the employer itself in its reply to the grievances, quoted above). Had it not been for this interpretation the applicants would never have made claims for overtime, those claims would never have been paid and the employer would therefore never have tried to obtain reimbursement. Since it is the attempt at recovery which led to the grievances, there is a direct cause-and-effect relationship between them and the interpretation and application of the collective agreement.

69        However, in this case, there is no such direct cause and effect relationship.  The decision of the employer to collect the pension deficiencies arose directly from the alleged improper application of the minutes of settlement of the CHRC complaint, not from the collective agreement.

70        In essence, this dispute is truly about the implementation, or the improper implementation, of the terms of a settlement agreement within the agreed upon time. The grievor is alleging that employer is in breach of that agreement as it failed to make the appropriate deductions and provide payment within 60 days. The grievor argues that having failed to make appropriate deductions at the time of the settlement, it is estopped from taking recovery action now.

71        In the absence of a violation of the collective agreement, this Board does not have jurisdiction to hear this dispute, which at its essence arises from the settlement a complaint that was before the CHRC. As stated at paragraph 22 of the minutes of settlement, “the parties consent to these minutes of settlement being made an order of the Federal Court for the purpose of enforcement pursuant to Section 48(3) of the Canadian Human Rights Act”. As I have already ruled there has been no violation of Article 19 of the collective agreement, the dispute between the parties is purely an issue of enforcement of that Federal Court Order. Accordingly, redress on this matter is not available from this Board.

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

V. Order

73        The grievance is dismissed.

74        Rather than order that the exhibits be sealed, I am directing that they be redacted to remove all references to the grievor’s social insurance number, personnel record identifier, and the grievor’s date of birth. The parties shall redact this information from all exhibits that they filed with the Board during the hearing and will file a copy of those redacted exhibits by 4:00 p.m. Ottawa local time on June 30, 2017. The original exhibits on the Board’s file shall be temporarily sealed until, the first date on which the parties file a copy of the redacted exhibits or 4:00 p.m. Ottawa local time on June 30, 2017. The original exhibits in the Board’s file will be replaced with those redacted by the parties upon filing of those redacted exhibits.

May 31, 2017.