FPSLREB Decisions

REASONS FOR DECISION

I. Introduction

1        Tim Patwell, the complainant, filed a complaint of abuse of authority against the respondent, the Deputy Minister of Employment and Social Development, concerning the choice of a non-advertised appointment process for an appointment made to a benefits officer position classified at the PM-02 group and level. In his allegations, the complainant stated his concerns with fairness, access, and transparency.

2        The respondent denied that an abuse of authority occurred and stated that the appointed person was fully assessed and was found to meet the qualifications for the position and the right-fit criteria. It also stated that the appointment was made in accordance with all applicable policies and legislation.

3        The Public Service Commission did not appear at the hearing but presented a written submission that discussed its relevant policies and guidelines. It took no position on the merits of the complaint.

4        The complaint was heard by teleconference, on January 19, 2018, at 9:30 a.m. Only the respondent dialed in and participated.At the outset, the respondent submitted that the complaint should be dismissed for abandonment reasons.Alternatively, it requested that the complaint be dismissed because the complainant failed to meet his burden of proof of demonstrating that an abuse of authority occurred in the choice of process.

5        The Board granted the respondent’s request and dismissed the complaint during the teleconference, with reasons to follow. These are the reasons for that decision.

6        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.

II. Background

A. Events before the hearing

7        On August 9, 2017, a “Notice of Hearing” in this matter was issued to the parties. The hearing was scheduled for October 4 and 5, 2017.

8        A notice of a pre-hearing conference was emailed to the parties on August 11, 2017. The conference was scheduled for August 16, 2017. When the Board’s Registry received an “undeliverable” reply from the complainant’s email host, it sent a paper copy of that notice by Priority Post to the work address indicated in his complaint form. The package was confirmed delivered on August 14, 2017; however, the signatory was not the complainant.

9        The pre-hearing conference was postponed because the complainant failed to attend or inform the Board and the other parties of his absence or of a necessity for a postponement.

10        The Board sent a notice to the parties on August 18, 2017, stating that the pre-hearing conference was rescheduled for September 13, 2017. The Board also sent a letter to the complainant, requiring him to provide updated contact information as soon as possible. It also required him to confirm by September 1, 2017, if he would participate in the pre-hearing conference. He was informed that failing to respond to the letter would result in the pre-hearing conference being cancelled and that the hearing would proceed as scheduled. The notice was sent to his work email address as well as to his personal email address, which he had used in several communications earlier in the hearing process.

11        The complainant never responded. The pre-hearing conference was cancelled.

12        On September 18, 2017, the respondent made a motion that the complaint be dismissed for abandonment or that the hearing be held by teleconference.

13        On September 26, 2017, the Board postponed the hearing. It noticed that with respect to other matters, the complainant had communicated using an email address different from those on file. Consequently, the Board forwarded the respondent’s motion and the other correspondence added to the file since August 9, 2017, to the other email address. The Board directed the complainant to reply to the respondent’s motion and to indicate how or whether he intended to proceed with the complaint by October 17, 2017. It also asked him which email address should be used to contact him.

14        The Board never received a response from the complainant.

15        On November 16, 2017, the Board issued a letter decision rescheduling the hearing to take place by teleconference on January 19, 2018. The parties were reminded that the Board might proceed with the hearing despite the absence of any party and that if a party could not be present at the hearing, it had to notify the Board in a timely manner.

16        On November 21, 2017, the Board sent an amended Notice of Hearing stating that the hearing would start promptly at 9:30 a.m. January 19, 2018, by teleconference. The parties were reminded again that the Board might proceed with the hearing despite the absence of any party. On December 19, 2017, it issued a notice of venue for that date and time.

17        Neither the Board nor its Registry has received any communication from the complainant since at least August 9, 2017. The Registry continued to communicate to him through the known email addresses, all to no avail. He did not inform the Board of any change to his contact information.

18        Lastly, the Board notes that the respondent stated that it attempted to contact the complainant on numerous occasions through both known email addresses and at the phone number listed in his complaint, all to no avail.

B. The hearing

19        The hearing commenced at the scheduled start time of 9:30 a.m. on January 19, 2018, by teleconference. Only the respondent was present, even though the complainant had been properly notified of the hearing. The Registry did not receive any communication from him indicating a problem with his attendance or requesting a postponement of the hearing.

20        Satisfied that the Notice of Hearing had been sent to the complainant, the Board then proceeded with the hearing pursuant to s. 29 of the Public Service Staffing Complaints Regulations, SOR/2006-6 (“the Regulations”).

21        At the outset of the hearing, the respondent presented a motion to have the complaint dismissed. It argued that the Board should consider the complaint abandoned given the complainant’s lack of communication with the Registry, the Board, and the respondent and given his failure to inform the Board of any change to his contact information, as demonstrated in events before the hearing.

22        In the alternative, the respondent submitted that the complainant bore the burden of demonstrating that an abuse of authority occurred. By not attending the hearing, he has not presented any evidence in support of his allegations, and therefore, he has failed to discharge his burden of proof.

23        At the hearing, the Board granted the respondent’s motion and dismissed the complaint.

III. Reasons

24        Section 29 of the Regulations provides that when a party fails to appear at a hearing and the Board is satisfied that the Notice of Hearing was sent to that party, it may proceed to hear and dispose of the complaint without further notice.

25        In the case at hand, there is no dispute that the complainant was provided with proper notice of the hearing date, time, and location and that he did not attend. He was also informed of the consequences of not attending. Based on the foregoing, the Board proceeded and heard the respondent’s motion that the complaint be dismissed for abandonment reasons or because he failed to meet his burden of proof of demonstrating an abuse of authority.

26        In support of its motion that the complaint be dismissed for abandonment, the respondent referred to two decisions rendered by the Public Service Labour Relations Board in the labour relations context. Although they originate from labour relations matters, the Board finds that they are equally applicable and relevant to the current matter.

27        In Tshibangu v. Deputy Head (Canadian Food Inspection Agency), 2011 PSLRB 143, the former Public Service Labour Relations Board (PSLRB) said that a party’s failure to communicate with it throughout a matter demonstrates a lack of interest in advancing its case. Meanwhile, in Smid v. Deputy Head (Courts Administration Service),2014 PSLRB 24, that Board found that a party is required to take reasonable steps to inquire about the proceeding it started and to inform the Board of any changes to its contact information.

28        In the present case, the complainant has neither taken reasonable steps to inquire about the proceeding he started nor informed the Board of any change to his contact information. Neither the Board, its Registry, nor the respondent has received any communication from him since at least August 9, 2017.

29        In addition, the complainant has demonstrated a lack of interest in advancing his case. The Board notes that it made sufficient attempts to contact him but that he failed to respond or acknowledge receiving the communications. He also failed to attend the pre-hearing conferences and the hearing.

30        Note that the Board can only operate based on the contact information that complainants provide. In this case, the Board and its Registry sent numerous electronic communications to the complainant in addition to apaper copy of the notice of pre-hearing conference by Priority Post to his work address. The respondent also attempted to contact him by phone. Yet, he did not respond and did not take reasonable steps to apprise himself of the state of the complaint proceedings or send the Board updated contact information. However, he had the Board’s mailing address, phone number, and email address and in the past had communicated with it by email.

31        Therefore, the Board finds that the complainant has displayed all the hallmarks of abandoning his case. His lack of communication with the Registry, the Board, and the respondent and his failure to inform the Board of any change to his contact information, as demonstrated in the events before the hearing together with his failure to appear, are sufficient to constitute the abandonment of his complaint. The public interest and the efficient administration of justice also lean in favour of the complaint being treated as abandoned.

32        For those reasons, the Board finds that the complainant has abandoned his complaint.

33        In addition, the Board notes that another reason warrants dismissing the complainant.

34        In a staffing complaint, the complainant bears the burden of proving, on a balance of probabilities, the allegations of abuse of authority he or she raises (see Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008 at paras. 49 and 50). In the present case, the complainant submitted allegations but did not tender any evidence to support them.

35        A complainant cannot merely rely on the statements made in a complaint or allegations to establish abuse of authority. These contentions must be supported with evidence from witnesses, facts, or documents(see Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 0020 at para. 50). A failure to present evidence in support of the allegations may result in the complaint being dismissed (see Kerr v. Chief Statistician of Canada of Statistics Canada, 2012 PSST 0001, and Sharma v. Chief Public Health Officer of the Public Health Agency of Canada, 2011 PSST 0027).

36        As the complainant has failed to present evidence in support of his allegations, his complaint must be dismissed. He has not established an abuse of authority.

37        On a final note, time and resources were expended by those involved. If the complainant did not intend to pursue his complaint, he should have notified the Board in a timely manner. His actions show a lack of regard towards the Board and the parties involved.

38        Based on the foregoing, the Board grants the respondent’s motion and dismisses the complaint on the grounds of abandonment and lack of evidence.

39        For all the above reasons, the Board makes the following order:

IV. Order

40        The complaint is dismissed.

April 27, 2018.