FPSLREB Decisions

Heard at Ottawa, Ontario,
March 5, 2018.

REASONS FOR DECISION

I. Complaintbefore the Board

1        On December 23, 2016, Bao Jin Ding (“the complainant”) filed a complaint against the Canadian Merchant Service Guild (“the Guild” or “the respondent”) under s. 190(1)(g) of the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the PSLRA”).

2        The complainant is a former employee of the Department of Fisheries and Oceans (“DFO”). According to the complaint, in 2011, he was offered an appointment as an officer cadet in the Marine Engineering Program at the Canadian Coast Guard College (“CCGC”). As part of his appointment, the complainant was required to complete the Officer Training Program. On June 10, 2015, he was dismissed from that program, and on July 10, 2015, the Guild filed a grievance against his dismissal from the CCGC, which was then dismissed at all levels of the grievance process. It was not referred to the Public Service Labour Relations and Employment Board (PSLREB) for adjudication.

3        In his complaint, the complainant alleged that the Guild had failed in representing him in his grievance against his employer, specifically with respect to it not being referred to adjudication.

4        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 PSLREB and the titles of the Public Service Labour Relations and Employment Board Act, the PSLRA, and the Public Service Labour Relations Regulations to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, the Federal Public Sector Labour Relations Act (“the Act”), and the Federal Public Sector Labour Relations Regulations (“the Regulations”).

5        The complaint was filed on the complainant’s behalf by his legal counsel, Russell MacCrimmon of the law firm of Lister Beaupré.

6        On February 6, 2017, by letter dated February 3, 2017, the Guild, via its legal counsel, David Jewitt of the law firm of Jewitt McLuckie & Associates LLP, replied to the complaint. On February 24, 2017, the complainant, by his legal counsel, responded to the respondent’s reply.

7        By letter dated October 12, 2017, the parties were advised that the complaint was scheduled to be heard by a panel of the Board in Ottawa from January 30 to February 1, 2018.

8        On November 23, 2017, by fax, the Board received a letter from Andrew Lister of Lister Beaupré, stating as follows:

…

Re:     Notice of Withdrawal

                   Complainant: Bao Jin Ding

                   PSLREB Reference No.: 561-02-828

                   Our File No. 1029-001

Pursuant to s. 11(1) of the Federal Public Service [sic] Labour Relations Regulations SOR 2005/79, please accept this letter as notice of the Complainant’s intention to withdraw his above-referenced complaint.

…

cc.  Client

      David Jewitt, For the Respondent (By E-mail)

[Emphasis in the original]

9        On November 23, 2017, the Board wrote via fax to Mr. MacCrimmon (in care of Lister Beaupré), the complainant, and the Guild, with copies to Mr. Jewitt and Mr. Lister, acknowledging its receipt of Mr. Lister’s correspondence of earlier that day confirming that the matter had been withdrawn and advising the parties that the proceedings had been terminated, that the file had been closed, and that the hearing scheduled for January 30 to February 1, 2018, had been cancelled.

10        On December 15, 2017, the complainant called the Board’s offices and advised it that he did not authorize the withdrawal of the complaint. Also on that day, the Board’s registry emailed Mr. Lister, requesting clarification.

11        As of December 27, 2017, the Board’s registry had heard nothing from Mr. Lister in response to the email of December 15, 2015, and so it sent a follow-up email. Late in the day on December 27, 2017, Mr. Lister replied by email, advising that his associate, Sogol Naserian, was handling the matter and requesting an extension to January 2, 2018, to respond.

12        On January 2, 2018, Ms. Naserian emailed the Board’s registry stating, “… most recent instructions from Mr. Ding are that he wishes to proceed with his DFR [duty of fair representation] matter.”

13        On January 4, 2018, the Board’s registry wrote to counsel for the Guild, the complainant, Mr. Lister, and Ms. Naserian, stating as follows:

…

At the direction of the panel of the Board, and [sic] I am writing to outline what has happened after the request by the complainant’s counsel to withdraw this complaint.

As the parties are aware, the subject file was withdrawn at the request of the complainant’s counsel, Mr. Andrew Lister, as indicated in the Board’s letter dated November 23, 2017.

On December 15, 2017 the complainant, Mr. Bao Jin Ding, contacted the Board by telephone and said that he did not authorize the withdrawal of his complaint.

On December 15, 2017, I emailed Mr. Lister to request clarification and their position regarding Mr. Ding’s statement. I followed up with Mr. Lister on December 27, 2017 and received a reply the same day advising that Ms. Sogol Naserian was handling the file, but was away until January 2, 2018.

On January 2, 2018, I received an email from Ms. Naserian advising that the firm’s “most recent instructions from Mr. Ding are that he wishes to proceed with his DRF [sic] matter.”

At the panel’s direction, counsel for the respondent is asked to provide their position concerning the above by January 11, 2018.

…

[Emphasis in the original]

14        On that same day, after the Board’s registry had written to the parties, the Board received a letter via email from Mr. Lister advising that the complainant would be representing himself, going forward. This letter was copied to the complainant and counsel for the Guild.

15        Counsel for the Guild requested an extension of time to respond to the Board’s January 4, 2018, request, which was granted, allowing it until January 19, 2018, to respond. On that date, counsel for the Guild responded, stating as follows:

…

We have now had an opportunity to consult with our client and can advise that the Guild’s position is that the Board is without jurisdiction to deal with this matter further as the Complainant has formally withdrawn the Complaint through his legally authorized representatives who at all time were acting with full authority and agency on his behalf.

For these reasons the Guild objects to this matter proceeding and requests that the Board issue a formal decision dismissing the Complaint.

…

16        The complainant was given until January 26, 2018, to respond to the Guild’s position.

17        On January 20, 2018, the complainant responded by email, stating as follows:

As I had pointed out that Mr. Lister had no authorization to submit the withdrawal letter, so I asked the Board to proceed my DFR case, please.

My ptevious lawyer is Russell, who helped me submit the DFR complaint and follow-up documents and we received the Board’s receipt mentioned that it might need months waiting time.

During the waiting time since 2017 April, Russell half retired … so he noticed me that my case was transferred to Andrew Lister. I did NOT meet Mr. Lister until our initial and only meeting in 2017 November. That meeting was badly organized, without any writting notice sent to me before or after it mentioned what will do or did in that meeting.

Mr. Lister and his assistant issued that withdrawal letter without my writting authorization, thus it is should be disregarded… .

I had worked months with Russell my previous lawyer and then waited for months to get the hearing chance … .

My position is as this, I ask the Board disregard that illegal withdrawal letter without my writting authorization and continue to proceed my DFR case, please.

…

[Sic throughout]

18        On January 24, 2018, after receiving counsel for the Guild’s January 19, 2018, correspondence and the complainant’s January 20, 2018, email, the Board’s registry wrote to the parties, stating as follows:

…

Further to the Board’s letter dated November 23, 2017, notifying the parties that the above-noted matter has been withdrawn and the file closed, as well as the respondent’s letter dated January 19, 2018, and the complainant’s email dated January 20, 2018, providing each parties’ respective position on the withdrawal, the panel of the Board has provided the following direction:

Mr. Ding has alleged that he did not authorize the withdrawal of the complaint.

The Board has determined that it will hold a one day hearing in which to hear the parties on the issue of whether or not the complaint was withdrawn.

In this regard, the parties are asked to provide, as soon as possible, their availability to appear before the Board, for one day between February 1-9, 2018 and during the months of March and April of 2018.

…

[Emphasis in the original]

19        The matter was scheduled for a half-day hearing on March 5, 2018.

20        At the hearing, the complainant sought to provide copies of his communications with his lawyers at Lister Beaupré. I informed him that by submitting those communications, he would waive the solicitor-client privilege that attached to his relationship with his lawyers. He indicated that he understood, and he submitted them.

21        The complainant submitted an email that was dated November 13, 2017, at 5:23 p.m., and that Ms. Naserian had sent to him (and copied to others, including Mr. Lister) confirming a meeting with him and the law firm at its offices scheduled for Friday, November 17, 2017, at 2:30 p.m.

22        It would appear from the complainant’s submissions and from other documents submitted that the meeting did take place on that day.

23        The complainant also submitted an email Ms. Naserian sent to him dated November 23, 2017, at 11:15 a.m., which stated as follows:

Subject: RE: Your employment with the Canadian Coast Guard College

…

It was a pleasure meeting you last Friday.

Further to your instructions and as discussed, we have notified the PSLREB as well as the Guild’s legal counsel of your intention to withdraw your DFR complaint. I have attached a copy of our correspondence to this effect for your records.

Please contact me should you have any questions.

…

24        Attached to that email were a copy of the letter sent to the Board and dated November 23, 2017, withdrawing the complaint, and a copy of the letter that had been sent to Mr. Jewitt, also on November 23, 2017, enclosing the correspondence of that date to the Board. That letter stated as follows:

…

Please find enclosed a copy of our correspondence to the Public Service Labour Relations and Employment Board in respect of the above-referenced matter.

We wish to take this opportunity to request a letter from your client stating that it is no longer able to provide assistance to Mr. Ding in regards to the internal redress process. We thank you, in advance for your assistance with respect to this matter and please do not hesitate to contact me should you have any further questions.

…

25        The complainant submitted copies of emails he sent to Ms. Naserian on November 23, 2017, which stated as follows:

[sent at 4:37 p.m.:]

My main concern is about my human rights case reactivition, I am wondering the withdrawal will be regarded as try all the other resources or NOT, because at the beginning Mr. Russell told me I have to sue the Guild for the DFR to get that approval.

[sent at 4:49 p.m.]

I think what I heard at the meeting, there will be a hearing by the Board, and we need to get a letter from the Board to show to the Human Rights Commission to reactive my case. For the letter from the Guild, they said they had expressed that idea of no further supporting through their serial emails. So COULD you please explain how the Board part approval be obtained.

[sent at 5:13 p.m.]

Russell mentioned in his last email to HRC,

“

To the extent that his human rights are not considered or adjudicated through this other process arising from his termination from employment and failure of his union to advance his matter to adjudication, he will be asking for his complaint to be reinstated.”

[Sic throughout]

26        The complainant submitted the following email that he sent to Ms. Naserian and that was dated November 28, 2017, at 5:40 p.m., which attached earlier emails between Mr. MacCrimmon and Louise Allen of the Canadian Human Rights Commission (“the CHRC”):

…

This email is to forward Russell’s email to Human Rights Commission regarding my complain in May, as we just talked on the phone.

I want to confirm which stage are we at now, and wether there is a major change from Russell’s original plan, and why I did NOT get a chance to review the draft document before it was officially served which was the regular procedure Russell followed. Would you briefly explain these three points, please.

…

[Sic throughout]

27        Attached to that email were the following two emails. It is unclear which came first, as one has the date in Asian character set:

[email of March 28, 2017, at 2:27 p.m., from Ms. Allen to Mr. MacCrimmon:]

…

I’m responding to your letter of March 17, 2017 regarding your above client Mr. Ding. To be able to reopen his file we require a letter from the union stating that they are no longer able to help in regards to the internal redress process within the PSLREB. Also we required a confirmation that the Public Service Labour Relation and Employment Board are unable to help your client.

With this information you or your client can complete a complaint form on line and fax the Commission his three pages official complaint. Once we have all the documents, his file will be reopened and I will continue with the process.

…

[Sic throughout]

[email with date in Asian character set from Mr. MacCrimmon to Ms. Allen:]

…

Please be advised that Mr. Ding has filed a Duty of Fair Representation case against his union. Please see the attached correspondence from the PSLREB in this regard confirming his application in this regard. As part of the remedy sought in that case, Mr. Ding is seeking that his matter be referred to adjudication (with or without his union support) or damages arising from the failure to represent him fairly.

To the extent that we are successful in this regard, there may be overlap with the remedies that would be sought in the human rights complaint. As such, we respectfully request that Mr. Ding’s matter continue to be held in abeyance pending the conclusion of the DFR case. To the extent that you require anything further to ensure that his matter is held in abeyance, please advise.

To the extent that his human rights are not considered or adjudicated through this other process arising from his termination from employment and failure of his union to advance his matter to adjudication, he will be asking for his complaint to be reinstated.

…

28        The complainant also submitted an email that Ms. Naserian sent to him and that was dated December 4, 2017, at 3:12 p.m., which stated as follows:

…

I have reviewed my notes of your meeting with Mr. Lister and me on November 17, 2017. During this meeting, Mr. Lister discussed the nature of the DFR applications in general, and the very low likelihood of their success. More specifically, Mr. Lister explained that so long as the union is able to demonstrate that it considered a member’s concern, it has discharged its mandated duty to the member. In other words, the threshold to be met by the union is very low, and therefore, very easy to satisfy.

As it relates to your matter, Mr. Lister explained to you that you face an additional hurdle in your application, with respect to the timeliness of your application. In light of these facts, Mr. Lister advised that you are more likely to succeed in your human rights complaint, which you initiated in August 2016.

We therefore sought your instructions to withdraw your DFR complaint (which was scheduled to be heard before the PSLREB on January 30, 31 and February 1, 2018), and to submit the necessary paperwork for this purpose. At the meeting, you provided us with your instructions to proceed with withdrawing your DFR application. In accordance with those instructions, we wrote to the PSLREB to notify them. A copy of our correspondence was provided to you for your records. While we do generally provide a draft of correspondence to clients for their review, this practice does not extend to pro forma documentation (such as a notice to withdraw an application), because these documents are not contentious and generally require specific language in accordance with the rules of the tribunal.

As stated in our letter to the Guild’s counsel, we have requested that a letter from the union be forwarded to us, stating that it is no longer able to assist you. We will continue to keep you informed as to the status of this matter.

I hope this email provides further clarification of our meeting. If you have any further questions, please do not hesitate to contact me.

…

29        The complainant submitted an email he sent to Ms. Naserian dated December 8, 2017, which stated as follows:

…

I clearly do NOT remember Mr. Lister asked me to confirm the withdrawal, and I think for such a important action regarding what Russell had wrote in his email to HRC this May, I will only regard my writting authorization is valid.

First, you still did NOT explain the conflict with Russell’s original routine map, I am waiting for that. Logically, your approach and Russell’s can NOT both be correct.

Second, you did NOT provide me with the meeting brief to ask my confirmation.

Third, the most important, my concern is focus on whether the withdrawal will affect reactivating my HR case, and how to get the Board’s approval to be provided to HRC.

Please give me the explain focus on my concerns, NOT your notes which you never asked my review.

…

[Sic throughout]

30        The complainant submitted an email he received from Mr. Lister dated December 13, 2017, which stated as follows:

…

I have no reason to believe that you did not understand what was discussed during our meeting (or thatyou were in any way compelled to instruct us as you did.) Your instructions to us to withdraw your DFR complaint were clear. Given your instructions, your present position that our correspondence to PSLREB to withdraw your application was without your authorization, is untrue.

As Sogol explained to you in her December 4^th e-mail, while it is our practice to provide you with a copy of all outgoing correspondence for your review and approval, we do not send a copy of pro forma documentation (which are generally in standard format and non-contentious) to clients, as this exchange results in delays and added legal fees.

…

31        The complainant submitted an email he sent to Mr. Lister dated December 14, 2017, which stated as follows:

…

I always give instruction in writting format, because the legal field is so complicated, and English is NOT my mother language. That was also the way Russell worked with me, I felt really disappointed that you did NOT follow his way.

…

In summary, your assistant failed to prepare authorization document to sign in the meeting, nor to ask my confirm after the meeting by email, how can you prove that the withdrawal letter had my authorization.

I need to get clear direction of how I noticed the PSLREB that the withdrawal letter is NOT authorized by me and to confirm my case hearing is still valid before I accept a referral to seek new counsel for my DFR complaint. Because that withdrawal letter was submitted by your assistant Sogol without any type of my writting authorization.

…

[Sic throughout]

32        The complainant submitted an email he received from Mr. Lister dated December 15, 2017, which stated as follows:

…

I am in receipt of your e-mail of December 14, 2015 [incorrect date]. As stated in my earlier e-mail, I do not agree with your position.

You have been provided with a summary of our November 17^th meeting on a number of occasions. We acted on your instructions to withdraw from the DFR matter and to proceed with your complaint before the Canadian Human Rights Commission. Once again, your instructions to us were very clear.

…

II. Summary of the arguments

A. For the complainant

33        The complainant submitted that originally, Mr. MacCrimmon was his lawyer, and that in May or June of 2017, his matters were transferred to Mr. Lister. He stated that a meeting was arranged with Mr. Lister; however, the complainant was not sent an agenda for it. He said that he went to the meeting thinking that it was just an initial meeting. He said that just a discussion took place and that nothing was put in writing.

34        The complainant stated that at the meeting, Mr. Lister told him that they had notice of the hearing and that they would attend it. The complainant said that the CHRC had told him that he had to finish the grievance process first. He also stated that Mr. Lister told him that he would change Mr. MacCrimmon’s approach.

35        The complainant stated that at the meeting, he never said that he would withdraw his complaint.

36        The complainant stated that he did not make any notes of the November 17, 2017, meeting with Mr. Lister and Ms. Naserian.

37        The complainant stated that he came to Canada in 2005 and that English is not his first language.

38        The complainant stated that he did not understand everything that was said at the November 17, 2017, meeting.

B. For the respondent

39        The respondent’s position is twofold:

1. the complainant discontinued his complaint, which was a unilateral act of abandonment; and
2. the law of agency applies.

1. The unilateral act to withdraw

40        The respondent referred me to Canada (Attorney General) v. Lebreux,[1994] F.C.J. No. 1711 (C.A.)(QL), which dealt with similar circumstances before the predecessor Public Service Staff Relations Board (“PSSRB”). Those facts involved an employee who had filed grievances against the termination of his employment that he then withdrew two days before their scheduled adjudication. In accordance with this request, the PSSRB ordered the two pending cases terminated and the files closed. The grievor applied to the PSSRB for a review of that decision. The PSSRB allowed it; however, on judicial review, it was quashed by the Federal Court of Appeal. The Court accepted the argument that the grievor’s act of discontinuance was a unilateral legal act abandoning the grievance proceedings, which the PSSRB could only note and then close its files. The Court held that the PSSRB did not have to make an order to close the files simply as an administrative matter.

41        The Court went further in Lebreux, stating that from the time the grievor discontinued his grievances, the PSSRB and the designated adjudicator became functus officio [of no further authority],since the matter was no longer before them. The PSSRB was not required to look into the merits or feasibility of the discontinuance or to agree to accept or reject it. The act of discontinuance immediately and without more terminated the grievance process in respect of which it was filed. Accordingly, there was no decision or order, within the meaning of the Act which could be reviewed by the PSSRB.

42        Howarth v. Deputy Minister of Indian Affairs and Northern Development, 2009 PSST 11, follows the reasoning in Lebreux. A complaint was withdrawn, which was neither conditional nor claimed to have been done under duress. The former Public Service Staffing Tribunal lost its jurisdiction once the complainant filed the withdrawal. A withdrawal is a complete bar to adjudication.

43        Fournier v. Deputy Head (Correctional Service of Canada), 2011 PSLRB 65, held that withdrawing a grievance from adjudication is unilateral and irrevocable. Once that is done, both the Board and any designated adjudicator lose jurisdiction, and the grievance is terminated. The Board is not obliged to inquire into the reasons for the withdrawal; nor is it required to agree to the discontinuance. At paragraph 22, that decision states that once withdrawn from adjudication, a grievance cannot be revived; nor can another grievance be filed about the same matter.

44        The respondent also referred me to Clark v. Samson Family Support Services, 2008 CarswellNat 6805, which albeit involved proceedings under the Canada Labour Code (R.S.C., 1985, c. L-2), held that after a complainant has formed an intention to withdraw a complaint and unequivocally notifies the adjudicator and the employer that she or he no longer wishes to pursue it, the adjudicator has no jurisdiction to inquire into it.

2. Law of agency

45         A client is bound by his or her lawyer’s actions. The lawyer has ostensible authority. In this respect, the respondent referred me to Scherer v. Paletta,[1966] 2 O.R. 524 (C.A.), which states, as follows:

As between principal and agent, the authority may be limited by agreement or special instructions but as regards third parties the authority which the agent has is that which he is reasonably believed to have, having regard to all the circumstances, and which is reasonably to be gathered from the nature of his employment and duties. The scope of authority is, therefore, largely governed by the class of agent employed provided that he is acting with the limit of his ordinary avocation or by relation of the agent to the principal or by the customs of the particular trade or profession.

A solicitor whose retainer is established in the particular proceedings may bind his client by a compromise of these proceedings unless his client has limited his authority and the opposing side has knowledge of the limitation, subject always to the discretionary power of the Court, if its intervention by the making of an order is required, to inquire into the circumstances and grant or withhold its intervention if it sees fit; and, subject also to the disability of the client… .

46        The respondent also referred me to Northwood Oaks Ltd. v. Winnipeg (City) Board of Revision,[1999] 11 W.W.R. 77 (Q.B.), in which a tax consulting company filed a notice of withdrawal of appeals for a number of individual applicants for certain years. There was no mistake that the withdrawals were filed. However, the company did not have the authority from the individual applicants it represented to make the withdrawals; nor had they intended to withdraw their appeals. At paragraphs 17 and 18, the Court held as follows:

17 … Where a litigant chooses to deal with the court through an agent, as is ordinarily the case, the court must be assured at all times that the agent has the authority of his or her client for all he or she does. It would be an intolerable situation if the court had to verify the authority of the agent before accepting a document for filing or acting upon it.

18 Other parties to the litigation need protection too. They need to know that service on the agent of record is effective and that a document filed by the agent, such as a notice of discontinuance or abandonment of an appeal, can be relied on.

47        The reasoning in Northwood Oaks was followed in Windermere Golf & Country Club v. Edmonton (City), [2008] A.W.L.D. 4516.

48        The respondent also referred me to McKeown v. Royal Bank of Canada,2001 FCT 81, Davies v. Public Service Alliance of Canada,2011 PSLRB 98, Canadian Food Inspection Agency Financial Officer Association v. Canadian Food Inspection Agency,2015 PSLREB 68, Sifft v. International Brotherhood of Boilermakers Local 128, 2017 CarswellOnt 10802, Jackson v. Brink’s Canada Ltd., 1993 CarswellNat 2352, Chaudhry v. Canada (Attorney General), 2009 FCA 376, and Bialy v. Gordon,2016 PSLREB 109.

49        The respondent submitted that the complainant was represented and that the lawyer had authority to withdraw the complaint. While there could possibly have been some miscommunication, it would not negate the withdrawal.

C. The complainant’s reply

50        The complainant reiterated that he did not give the authority to withdraw his complaint.

III. Reasons

51        It would appear that from the available facts, the complainant had been employed in the federal public service with the DFO as an officer cadet in the Marine Engineering Program at the CCGC. He was terminated from his employment, and the Guild filed a grievance on his behalf. He pursued the grievance with the Guild’s support through the final level of the grievance process; however, it was not referred to the Board’s predecessor, the PSLREB, for adjudication. It would appear that the Guild’s failure to pursue the grievance to adjudication led to the complaint he filed against it on January 9, 2017.

52        Although no specific details were made available, the complainant also appears at some point to have filed a complaint with the CHRC. It would appear that that complaint related to his employment; however, no details were provided.

53        On November 23, 2017, the Board received by fax from the law firm representing the complainant notice under the Regulations that he was withdrawing his complaint against the Guild. Therefore, the Board terminated the proceedings and closed its file. On December 17, 2017, the complainant called the Board’s offices and advised that he did not authorize the withdrawal of the complaint. Also on that day, the Board’s registry immediately emailed his lawyer, requesting clarification. The clarification that was eventually received from the complainant’s lawyer merely stated that the complainant wished to pursue his complaint and did not address the withdrawal or the allegation that he had not authorized it.

54        On January 24, 2018, the Board ordered a one-day hearing to determine if the complaint had been withdrawn.

55        During the course of the complainant’s submissions, he provided the hearing with a number of pieces of correspondence, mostly emails, between himself and either Mr. Lister or Ms. Naserian discussing what occurred at a meeting on November 17, 2017, involving the three of them and the direction of the complainant’s complaint against the Guild and possibly his CHRC complaint.

56        The jurisprudence submitted by the Guild in its argument clearly demonstrates that legal counsel acting on behalf of their clients in matters in which they have been retained to act have the ostensible authority to bind their clients. While there are exceptions to the law of agency, the complainant has not provided me with sufficient evidence to be able to conclude that the law of agency should not be applied in these circumstances.

57        In his submissions before me and the correspondence that the complainant submitted to the hearing, the evidence clearly indicates that as of November 23, 2017, the date on which the Board received the correspondence from Mr. Lister withdrawing the complaint against the Guild, Mr. Lister, Ms. Naserian, and the Lister Beaupré firm were the complainant’s lawyers. Therefore, the letter they sent to the Board bound him. I find that the complaint was withdrawn on November 23, 2017. Following Lebreux, the complainant’s proceedings before the Board were terminated at that point.

IV. Other Comments

58        While the complaint sets out in detail how the complainant viewed the action or inaction of the Guild in representing him with respect to the termination of his employment, in essence, his complaint is about the failure of the Guild to refer the grievance as against his termination of employment to the Board for adjudication.

59        According to the complaint, the grievance as against the complainant’s termination of employment was denied at the final level of the grievance process on April 6, 2016. It also confirms that, at that time, he was aware of the denial of the grievance.

60        While the Guild may not have referred the grievance to the Board for adjudication, there was nothing preventing the complainant from referring it to the Board. Section 61 of the Federal Public Sector Labour Relations Regulations SOR/2005-79 (“the Regulations”) provides for the extension of time to refer a grievance to adjudication.

61        An application to extend time under s. 61 of the Regulations is not contingent on the success of a complaint filed as against a bargaining agent under s. 190 of the Act.

62        While the complainant may have missed the deadline to refer his grievance to the Board for adjudication, he or his representatives could have brought an application under s. 61 of the Regulations to extend the time to do so. A review of the Board’s files discloses no such application has been brought as of the date of this decision.

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

IV. Order

64        I declare the Board’s letter, dated November 23, 2017, closing the file was valid.

June 8, 2018.