FPSLREB Decisions

REASONS FOR DECISION

I. Introduction

1         In my decision in Grant v. Deputy Head (Correctional Service of Canada), 2017 PSLREB 59, which was issued on May 30, 2017, I upheld one of three grievances (a breach of article 19, the no-discrimination clause of the relevant collective agreement), and upon the grievor’s request, I refrained from ordering a remedy. Rather, the parties were directed to discuss details of a remedy and to advise the Board whether they had successfully reached an agreement on the issue of remedy, no later than 60 days from the decision date. I also ordered that I would remain seized of the matter for 120 days following the issuance of the decision to deal with any issue arising from the order.

2         Before the 120-day period expired, the parties sought the assistance of the Board’s mediation services to help them with their discussions. The file shows that on December 11, 2017, the parties signed an agreement to mediate. It then shows that a mediation status report was filed on January 23, 2018, which states that one meeting was held when the agreement was signed and that the matter was not settled. The memo concludes by stating that the matter will be “put in abeyance”.

3         The file shows that the parties took no action for the entire calendar year of 2018. There is no indication of any request from either party that I extend the period during which I would remain seized.

4         Counsel for the grievor has now requested that the issue of the appropriate remedy for the grievance that was allowed be scheduled for hearing. I directed the parties to make written submissions on the question of whether I had jurisdiction to hear arguments and issue an order on remedy.

II. Facts

5         The following passages are in my order arising from my decision in 2017 PSLREB 59:

...

[113] Counsel for the grievor requested in his closing arguments, that if any of the grievances were to be allowed, that I not order a remedy. Based upon this submission, I will refrain from ordering a remedy for the grievance I have allowed.

[114] (The Order appears on the next page)

VI. Order

[115] The discrimination grievance is allowed.

[116] The harassment and termination grievances are dismissed.

[117] The parties are directed to discuss details of the remedy.

[118] No later than 60 days from the date of this decision, the parties will advise the Board whether they have successfully reached an agreement on the issue of a remedy as set out above.

[119] I will remain seized of this matter to deal with any issue arising from this order for a period of 120 days following the issuance of this decision.

...

III. Submissions of the grievor

6         Counsel for the grievor submits that there is no question that the Board has jurisdiction to determine the appropriate remedy arising out of its decision. He adds that the issue of remedy was not determined in that decision. Rather, I reserved jurisdiction over that issue and permitted the parties an opportunity to resolve it. Therefore, it remains a live issue before the Board. He also states that there is no basis to interpret my decision as preventing the parties from returning to the Board to determine the issue of remedy should their own efforts have been unsuccessful. Counsel states that my order did not state that the file would be closed if the matter of remedy was not resolved or brought back to the Board within 120 days. It simply stated that I would remain seized for 120 days.

7         Counsel for the grievor states that upon reaching an impasse in discussions with the respondent to try to agree to damages, he wrote to the Board’s registry on July 28, 2017, requesting the assistance of the Board’s mediation services. He notes that that was well within the 120-day period I ordered to retain jurisdiction over the matter.

8         He also notes that the Board’s registry replied on August 11, 2017, advising that the matter had been referred to its mediation services and that at no time did the Board’s registry or mediation services advise him that the matter had to be resolved or referred back to the Board within any stipulated time frame. He then adds that after some delays associated with the assignment and scheduling of a mediator, the parties did engage in mediated discussions beginning in December 2017 but that their efforts were unsuccessful.

9         Counsel for the grievor argues that two discrete legal issues have been raised. First, whether the Board had jurisdiction to determine the remedy for the discrimination grievance, and second, whether I remain seized to determine the issue.

10        On the first issue, he argues that there is no question that the Board has jurisdiction since the issue of the remedy was not determined in the decision. He contends that I expressly reserved jurisdiction over the issue to give the parties the opportunity to resolve it. I did not dismiss any remedial request and he submits that accordingly, the remedy for the discrimination grievance remains a live issue.

11        Counsel adds that it would be a breach of procedural fairness for the Board to dismiss the remedy sought by the grievor without a hearing and without prior notice. He cites Brown and Evans, Judicial Review of Administrative Action in Canada, loose-leaf edition at paragraph 9:1100, for the proposition that a fundamental element of the duty of fairness is that prior notice be given to those entitled to participate that a decision will be made or that some administrative action will be taken.

12        Counsel also states that it would be a deterrent to parties engaging in mediation if the Board could lose its jurisdiction as a result of a delay in the mediation process, particularly one being conducted by the Board’s mediation and dispute resolution services.

13        As for whether I remain seized to determine the remedies issue, counsel submits that the same Board member typically determines subsequent issues arising out of his or her initial decision even after a time period set out in the decision has expired. In support of his submission, he cites Grover v. National Research Council of Canada, 2006 PSLRB 117. That decision stated that the adjudicator would remain seized for a period of 90 days from the date of this decision to address any matters relating to the implementation of her order. The parties then wrote to the Board within 90 days advising that they had been unable to resolve all remedial issues. The same adjudicator ultimately determined the matter more than one year after the initial decision.

14        Counsel for the grievor also referred to House of Commons v. Professional Institute of the Public Service of Canada, 2009 PSLRB 144, where a member of the Public Service Labour Relations Board held that he would remain seized for 90 days following his initial decision but ultimately ruled on a subsequent issue between the parties well after that period had expired.

IV. Submissions of the respondent

15        Counsel for the respondent opposes the Board reconvening the parties to hear arguments and issue an order on remedy. She submits that the matter is functus officio, meaning that the Board’s authority to deal with the matter has come to an end. Under this doctrine, once a tribunal has finished making its decision, its grant of jurisdiction is terminated and thereafter it has no power to render any further decision or award.

16        She cites Brown and Beatty, Canadian Labour Arbitration, at para. 2:4100, for the proposition that an adjudicator, even when retaining jurisdiction on a narrow and specific issue, is not conferred with a perpetual authority to deal with a grievor’s employment.

17        Counsel submits that a fair reading of the decision makes it clear that following the grievor’s request to refrain from ordering a remedy, I remained seized for a period of only 120 days to determine the issue of remedy following unsuccessful settlement discussions. This deadline was clear.

18        In addition, Counsel disagrees with the grievor’s submission that the issue of remedy was never resolved. She maintains that the decision already provided a remedy for the discrimination grievance in the form of a declaration of discrimination for the day the grievor was placed on administrative leave. She notes the Supreme Court of Canada’s decision in Chandler v. Alberta Association of Architects, [1989] 2 SCR 848 at para. 23, which states that if an administrative tribunal is empowered to dispose of a matter by one or more specific remedies, the fact that one is selected does not entitle it to reopen proceedings to make another selection.

V. Reasons

19        I do not agree with the submission of counsel for the grievor that there are separate legal questions of determining the Board’s jurisdiction and me being seized. They are in fact the same issue. When a Board member is assigned to hear a grievance, she or he sits as a panel of the Board and is, for that case, the Board.

20        It is not possible that I hear the merits of a case and that then, through some course of events such as transpired in this case, a different member will be assigned to hear arguments on the remedy.

21        Contrary to that reasoning, the order I made by which I remained seized for 120 days created a clear deadline for counsel for the grievor to resolve the matter in the way he requested in closing argument, or failing that, to request my intervention to receive arguments and order a remedy. The decision disposed of the remedial issue by directing the parties to negotiate it, failing which they could return to the panel of the Board to resolve it within the indicated period of 120 days. To that extent, there was indeed a “live issue” before me, but only for 120 days.

22        Contrary to his submission that such a clear deadline could be a deterrent to parties seeking mediation to resolve the remedies issue, the deadline is a deterrent to exactly the situation the grievor now finds himself in, with his file having been left dormant for an unacceptable period of over a year.

23        No good purpose can be served by determining a remedial award that has been left unresolved indefinitely. The grievor was not self-represented in this matter. Instead, his bargaining agent retained experienced counsel from a firm that regularly appears before the Board. As such, I am not willing to allow that my order was possibly misunderstood.

24        In reviewing the jurisprudence cited by counsel for the grievor, I note that in Grover and House of Commons, the Board had remained seized for 90 days to deal with the implementation of the remedial order in the former case and to hear evidence regarding the impact of the decision in the latter case. In both instances, the parties notably returned to the Board seeking a hearing on the outstanding matters within the 90 days. In the present case, over a year had elapsed after my final decision before the matter was brought to my attention. The fact that the parties may have sought the help of mediators employed within the Board’s secretariat does not in any way equate with a request to me, the panel of the Board that adjudicated the grievance, to issue an “appropriate remedy,” as the grievor is now requesting.

25        While I might have considered extending the retained jurisdiction period had such a request been made during the original period or if the request had been delayed due to factors beyond the grievor’s control, that is not so in the matter before me. My authority to deal with the matter has come to an end.

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

VI. Order

27        The grievor’s request to schedule a hearing is denied.

28        I order that the files remain closed.

February 12, 2019.