FPSLREB Decisions

Decided on the basis of written submissions,
filed July 10, 13, 14, and 17, 2017.

REASONS FOR DECISION

I. Introduction

1        On February 22, 2017, the complainant, Peter Taticek, filed three complaints with the Public Service Labour Relations and Employment Board, as it was known then. He alleged that the president of the Canada Border Services Agency (CBSA or “the respondent”) abused its authority with respect to the application of merit in a selection process (file numbers EMP-2017-10984 to 10986). The three complaints were consolidated into one file, the lead file being EMP-2017-10984 (“the first proceeding”).

2        On April 24, 2017, the complainant filed a fourth complaint (file number EMP-2017-11151), arising out of the same selection process and also alleging an abuse of authority in the application of merit (“the second proceeding”).

3        On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9), received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board and the title of the Public Service Labour Relations and Employment Board Act to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”) and the Federal Public Sector Labour Relations and Employment Board Act (FPSLREBA).

4        The history of the two proceedings is similar and will be set out in greater detail later in this decision. On July 4, 2017, after the respondent had missed deadlines in both proceedings and the Board then granted it extensions, it filed another extension request for both proceedings. The Board denied the request in each proceeding and furthermore advised the respondent that it was precluded from raising any issue or leading any evidence in response to the allegations in either proceeding, except with the prior leave of the Board and subject to any conditions it determined.

5        The CBSA filed a request for leave. The issue before this Board is whether it should be granted.

6        Having reviewed the parties’ submissions, the Board finds that it has not been presented with any evidence that would persuade it to grant the leave, in these circumstances. In light of this determination, as the same complainant filed the two proceedings against the same respondent relating to the same appointment process, which are now procedurally at the same stage, the Board finds it appropriate to consolidate the first and second proceedings.  In accordance with the request of the complainant, the Board will issue a decision on the merits of the proceedings on the basis of the written record.

II. Background and submissions

A. The first proceeding

7        The Public Service Staffing Complaints Regulations (“the Regulations”) set out the procedure to be followed with respect to filing staffing complaints with the Board. The Regulations establish timelines for filing a complaint, for the subsequent exchange of information, for the complainant to file allegations, and for the respondent to reply to them. The complete history of the first proceeding was set out in a letter decision to the parties dated July 6, 2017. A summary of the information in that letter is provided later in this decision.

8        After the first three complaints were filed, the Board set March 20, 2017, as the deadline to complete the information exchange. On March 22, 2017, the respondent sought an extension to that deadline, with the complainant’s consent. The Board granted the request.

1. The first contested extension request

9        The complainant filed his allegations within the time frame set by the Board. The respondent’s reply to them was due by April 25, 2017. On April 21, 2017, it requested an extension until May 5, 2017, to file its reply, in its words due to “workload pressures”. His representative stated that the complainant was “not in favour” of the request. The Board did not find the request unreasonable and granted it.

2. The second contested extension request

10         On the evening of May 10, 2017, five days after its reply was due, the respondent requested an additional extension until May 19, 2017. The respondent was aware that the reply was overdue and added that its “intent” had been to file it on time but that it was still unable to submit a complete response. The respondent stated that it needed “additional time to finalize.” The complainant objected to the request.

11        On May 18, 2017, the Board granted the extension until May 19 but stated that it had been unreasonable for the respondent to make its request five days after the first deadline expired, especially given the minimal reasons it provided for the late request and the extension.

12        The respondent failed to file a reply by May 19, 2017.

13        On May 23, 2017, the complainant’s representative emailed the Board, copying the other parties (including the respondent). He noted that the reply had yet to be filed. He sought information from the Board as to what would be done to ensure that its decisions were respected and adhered to as well as the consequences for such failure.

14        On May 29, 2017, a registry officer from the Board’s secretariat emailed the respondent, stating that “[t]he deputy head’s reply to the complainant’s allegations … was due on May 19, 2017.” This presented the respondent with another opportunity to explain its delay; however, no response was received.

15        On June 20, 2017, the complainant’s representative emailed the Board again. He requested that it issue a decision on the complaints based on the written information on the record, pursuant to s. 22 of the FPSLREBA, which authorizes the Board to decide any matter before it without holding an oral hearing. A copy of this correspondence was also sent to the respondent.

16        On July 4, 2017, the respondent communicated with the Board for the first time since asking for an extension on May 10, 2017. In a three-line email, it stated as follows that it “… acknowledges the delays with the respondent’s Deputy Head Response and regrets the administrative delays.” As in its prior request, it stated only that it “intends” to submit the reply “as soon as possible”, and it sought a further extension until July 10, 2017. The respondent provided virtually no explanation or justification for the request.

17        The complainant objected to the request.

18        In its letter decision dated July 6, 2017, the Board rejected the request, holding as follows:

…

According to s.22 of the Regulations, complainants are required to provide a detailed explanation of the allegations upon which they intend to rely and full particulars of the relevant facts. This is important to inform respondents of the nature of the complaint and the evidence they will have to refute (see Laroche v. Deputy Minister of Foreign Affairs, 2009 PSST 17, at para. 13). The Board may dismiss a complaint for failure to submit allegations in a timely manner. The complainant in the present case complied with this duty and filed his allegations within the applicable timelines.

As also noted in Laroche at para. 14, procedural fairness requires that respondents fully reply to the allegations to ensure that complainants are well-informed [sic] of the respondent’s response and the nature of the evidence the respondent plans to produce to refute the allegations. A respondent’s duty to provide its reply is therefore not to be taken lightly. A delay or failure to file a reply is not an “administrative” matter, as the respondent implies in its motion, but a potential denial of procedural fairness to the other parties.

The respondent has not filed its reply even though it has sought and obtained two extensions. It has ignored the clear orders of the Board on when the reply is due not just once but twice. The second extension request was filed five days after the reply’s due date.

Pursuant to s.5(3) of the Regulations, the Board may extend timelines in the interest of fairness. The respondent has not established that it would be in the interest of fairness to grant this latest extension request. The due dates set down by the Regulations and any extensions ordered by the Board must be respected.

The respondent has completely ignored the Board’s previous orders. Furthermore, it has not provided any explanation or justification for its request for an additional extension. Accordingly, the Board denies the respondent’s untimely request for a further extension to file its reply to the allegations.

In the absence of any outline of its position on the complainant’s allegations in the form of a reply, and consistent with the fundamental principles of procedural fairness, the respondent will not be entitled to raise any issue or lead any evidence at the hearing in response to the allegations, without first obtaining the prior leave of the Board. In effect, unless such leave is granted, the respondent cannot participate at the hearing in the same way that other parties cannot participate when they do not file replies (see s.25(1) of the Regulations).

…

B. The second proceeding

19        The chronology of the second proceeding was set out in that letter decision and is summarized later in this decision.

20        After the complaint was filed and the exchange of information was completed, the complainant filed his allegations. While the filing was three days late, the Board accepted it.

21        Given this delay, the respondent was advised that it had until June 16, 2017, to file its reply. It failed to. On June 30, 2017, the Board’s secretariat emailed the respondent, advising it that the deadline had expired and that it should provide the reply as soon as possible.

22        On July 4, 2017, the respondent communicated with the Board on this matter for the first time. In a three-line email, it merely stated as follows that it “… acknowledges the delays with the respondent’s Deputy Head Response and regrets the administrative delays.” It added that it “intends” to submit the reply “as soon as possible” and sought an extension until July 10, 2017. The respondent provided no explanation or justification for its failure to file the reply on time or for the extension request.

23        The complainant objected to the request and asked that the Board issue a decision on the complaints based on the written information on the record.

24        Applying the same reasoning as in the first proceeding, the Board denied the request. The respondent was notified that if it wished to participate further in the second proceeding, it would be required to seek the leave of the Board.

III. The request for the leave of the Board

25        Following the Board’s two letter decisions, the respondent emailed it on July 10, 2017, stating that the submissions contained within it were to apply to both proceedings. To explain its delay, the respondent submitted only that “[t]here had been ongoing challenges related to workload and expertise in the past few months.” It stated that it “… understands the clear message from the Board and respects its decision not to grant the last request for extension.” It continued, stating as follows:

…

… you will find attached to this communication the respondent’s reply to the complainant’s allegations ….

…

Whether the reply to allegations [sic] is accepted formally or not on the record because of a procedural defect or tardiness, the respondent submits that it is still in the best interest of justice to hear all the parties to the complaint despite the respondent’s failure to produce its reply to the complainant’s allegations in due time.

While fully respecting the Board’s discretion to refuse the production of the reply to allegations [sic], the respondent submits that, as a matter of fact, the other parties are now aware of the respondent’s reply to the complainant’s allegations, whether or not it is deemed part of the official record before the Board.

…

26        In conclusion, the respondent requested leave to fully participate in the next steps of the proceedings.

27        By letter decision dated July 11, 2017, the Board struck the purported reply from the record of each proceeding, given its earlier decision that the reply could not be filed without its leave. It invited the other parties to each proceeding to make submissions on the respondent’s request for leave. Specifically, the parties were asked to make submissions on the following three questions:

…

Should the Board grant the respondent’s request of leave to:

1. file its reply to the complainant’s allegations;
2. raise issues at the hearing in response to the allegations;
3. raise evidence at the hearing in response to the allegations?

If any of the preceding questions is answered in the affirmative, what conditions, if any, should attach to the granting of such leave?

…

28        In response, all the appointees that made submissions answered “yes” to the questions; in their view, the Board should allow the respondent to file its reply and to participate in the proceedings, without conditions.

29        The Public Service Commission (PSC) submitted that the respondent should be allowed to file its reply and raise issues and evidence at the hearing, subject to any conditions the Board considers appropriate.

30        The complainant submitted that the Board must deny the respondent’s request for leave in the interest of fairness. Its failure to respond within the time frames set by the Board constituted abuse. He noted that the respondent has not provided any evidence that it was not able to respond in a timely manner or as to why it did not request an additional extension of time in a timely manner. It has shown complete disregard for the Board’s authority and has tainted the procedure by sharing its response with the Board and the parties, which is unfair to the complainant.

31        In conclusion, the complainant submitted that the respondent’s actions should have consequences; in his view, by its disrespectful actions towards the Board and him, the respondent has foregone its right to participate further in the complaint process.  The complainant reiterated its request that the Board “render a decision on the complaint without a hearing and on the basis of the official record as of today as the considerations of fairness so require.”

32        None of the parties — the complainant, the respondent, the appointees, or the PSC — referred to the jurisprudence that the Board should consider when making its determination.

IV. The issue

33        Having refused to grant an extension of time to the respondent to file its reply, should the Board now grant it leave to file its reply and to participate in the next steps of the proceedings?

V. Analysis

34        As a starting point, the Board considered Macaulay and Sprague’s Practice and Procedure before Administrative Tribunals, which sets out at page 12-19 that “… the essence of administrative law is the balancing of the procedural rights to be accorded individuals in the protection of their rights with the need of society for efficiency in administrative decision-making.”

35        The audi alteram partem rule requires tribunals to provide parties with an adequate opportunity to present their cases. However, as noted by Macaulay and Sprague, at page 12, paragraph 176.13, “… fairness requires only that a reasonable opportunity be afforded to a party to present their case. It does not require that the agency ensure that the individual takes advantage, or has taken advantage, of that opportunity.”

36        The respondent has already been given multiple extensions to enable it to present its reply. However, it failed to file its reply within the time limits set by the Board. Furthermore, it failed to even request extensions of time in a timely fashion. Given the history of the proceedings, there can be no question that the respondent has been afforded ample opportunity to file its reply.

37        When considering each request for an extension of time, the Board applied the test set out in s. 5(3) of the Regulations, determining whether it would be “in the interest of fairness” to grant each one. In the respondent’s final extension request, it indicated only its regret for the “administrative delays”, and it provided no explanation to justify its request.

38        While denying the final request for an extension of time to file its reply, the Board provided the respondent with an opportunity to file an application for leave, so that it could participate further in the process. However, the respondent did not use its leave application to present the Board with any new information, which would warrant varying its earlier determination. It failed to raise any extenuating circumstances for the Board’s consideration. The only justification the respondent proposed for its repeated delays was related to “… ongoing challenges related to workload and expertise in the past few months.”

39        The Federal Court considered the question of whether workload constitutes an acceptable reason for a delay in Hudon v. Canada (Attorney General), 2009 FC 1092. In that case, the Court reviewed a decision by the Chief of Defence staff to refuse to consider the applicant’s grievance because it was filed out of time. The Court held as follows:

…

[21] At the hearing, it clearly emerged that this issue centres on the interpretation of paragraph 7.10 of the QR&O [Queens’s Regulations and Orders for the Canadian Forces]….

[22] This provision clearly indicates that the Grievance Authority may accept a grievance submitted after the expiration of the time limit if it is of the opinion that it is in the interests of justice to do so. As noted above, the applicant raises the heavy workload of his counsel’s law firm as the reason for his lateness.

…

[27] The evidence on the record shows that this nearly two-month delay did not result from an event that was unforeseen, unexpected or beyond their control. In this Court’s opinion, granting an extension of time solely on the ground that the firm’s heavy workload caused the delay in question, without any other explanation, is not in the interests of justice. If extensions were to be granted for this reason alone, the mechanism under article 7.10 of the QR&O would quickly be short-circuited and rendered meaningless.

…

[29] In this respect, the Court is in full agreement with the words of Justice Reed on this issue in Chin v. Canada (M.E.I.), (1993), 69 F.T.R. 77, A.C.W.S. (3d) 1141 at paragraph 10:

It is too easy a justification for non-compliance with the rules for counsel to say the delay was not in any way caused by my client and if an extension is not granted my client will be prejudiced. I come back again to the question of fairness. It is unfair for some counsel to be proceeding on the basis that barring unforeseen [sic] events the time limits must be met and for others to be assuming that all they need do is plead overwork, or some other controllable event, and they will be granted at least one extension of time. In the absence of an explicit rule providing for the latter I proceed on the basis that the former is what is required.

…

40        From that excerpt, it is clear that the Federal Court does not require accepting a late filing if the delay was caused by workload alone. This excuse was not sufficient to convince the Board to grant the respondent an extension of time to file its reply; it certainly is not a sufficient ground in this application for leave for the Board to now grant it the right to file a reply.

41        The respondent contends that it would not be “in the best interest of justice” to deny it the right to be heard. However, it did not present any authoritative source to aid in interpreting that phrase.

42        The Board notes the Court of Appeal of Newfoundland considered the meaning of the phrase “interests of justice” in its decision in R. v. Smith, 2002 NFCA 8. The Court undertook a detailed analysis of this phrase and concluded at paragraph 39 as follows:

[39] … applying the standard “when the interests of justice require”, usually involves taking account of other interests in addition to the interests of individuals or entities directly involved in a proceeding. It usually includes the interests of all who may be affected by the functioning of the system of justice in relation to that proceeding, including the elements of the system of justice itself, and the state or society as a whole. In doing so particular emphasis is placed on taking account of and balancing competing interests while preserving the integrity and repute of the system of justice….

43        As evidenced by that passage, considering the “interests of justice” mandates that the integrity and repute of the system of justice must also be taken into account. The Board is responsible for providing a fair and efficient recourse system. To accomplish this, the timelines that it establishes and the orders it issues must be respected by all parties.

44        In this case, in the first proceeding, the respondent had until April 25, 2017, to file its reply. It was afforded multiple additional opportunities to do it, since (1) its initial request for an extension until May 5, 2017, was granted; (2) its next request, for an extension until May 19, 2017, was granted; and (3) on May 29, 2017, the Board’s Registry reminded the respondent that it needed to file its reply and explain its delay.

45        In the second proceeding, the respondent had until June 16, 2017, to file its reply. It failed to. Again, on June 30, 2017, the Board’s Registry reminded the respondent that it still had to file its reply and explain its delay. In both proceedings, the respondent repeatedly failed to file its reply and provide a sufficient explanation for its delay.

46        On July 4, 2017, the respondent made one more extension request, indicating that it “intends” to file its reply by July 10, 2017, in both proceedings. The Board denied it because, among other reasons, it was filed days after the due date, and no new explanation or justification was provided. Still, the Board provided the respondent with an opportunity to file an application for leave and to provide acceptable reasons for its delay.

47        Yet, on July 10, 2017, the respondent repeated that its delay to file its reply was caused by workload pressures, and ignoring the denial of the third extension request, it filed its reply in any event. It added that whether or not the Board deemed its reply part of its official record, the parties were now aware of the respondent’s reply to the complainant’s allegations.

48        However, in its last order, the Board refused to grant the extension because workload alone does not constitute an acceptable reason for delay. If extensions were to be granted for that reason alone, the mechanism under ss. 10 (making a complaint), 16 (exchanging information), 22 (making allegations), and 24 (replying to the allegations) of the Regulations would quickly be short-circuited and rendered meaningless.

49        By its conduct and by asserting that it makes no difference whether or not the Board deems its reply part of its official record, the respondent has communicated that it can flaunt the Board’s orders and regulations with impunity. This clearly demonstrates its disrespect for the Board’s orders and regulations.

50        The Board notes that the complainant also failed to respect the deadline for filing his allegations in the second procedure. He did so three days late. Although the Board’s opinion is that this omission should have been the subject of a request for an extension of time, it notes that the omission was not a recurrent error or indicative of a systemic irregularity. However, the respondent’s conduct in this instance displayed a demonstrable pattern of behavior.

51        Thus, the Board’s considered opinion is that the respondent’s attitudes and actions strike at the heart of the public’s confidence in this system and its respect for this Board and its administration of the Public Service Employment Act.

52        In fact, the Board is of the view that the respondent’s pattern of behaviour, including repeatedly missing deadlines, failing to seek extensions in a timely manner, and providing little or no explanation for its actions, amounted to an abuse of process. In Tipple v. Attorney General of Canada, 2012 FCA 158 at para. 29, the Federal Court of Appeal set out that “… courts and adjudicative decision makers have the inherent authority to control their own process and to remedy its abuse.”

53        The Board has determined that the appropriate remedy for this abuse is to limit the respondent’s right to fully participate in this process. In light of the fact that the respondent failed to file its reply in accordance with the Board’s orders and failed to provide acceptable reasons for its delay in this leave application, the Board will not accept a late filing. The respondent is barred from participating at the hearing in the same way that other parties cannot participate when they do not file replies (see s. 25(1) of the Regulations).

54        The complainant’s request that the Board issue a decision on the complaints based on the written information on the record is allowed pursuant to s. 22 of the FPSLREBA.  A decision on the complaints will follow.

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

VI. Order

56        Board file EMP-2017-10984 will be consolidated with Board file EMP-2017-11151.  The lead file will be EMP-2017-10984.

57         The application for leave is denied.

May 16, 2018.