Date: 20211108

File: 525-02-43177

XR: 566-02-8818 and 10674

 

Citation: 2021 FPSLREB 121

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Corey Nash

Applicant

 

and

 

Treasury Board

(Correctional Service of Canada)

 

Respondent

Indexed as

Nash v. Treasury Board (Correctional Service of Canada)

In the matter of a request for the Board to exercise any of its powers under section 43 of the Federal Public Sector Labour Relations Act

Before: Ian R. Mackenzie, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Applicant: Himself

For the Respondent: Caroline Engmann, counsel

Decided on the basis of written submissions,
filed May 12 and 31 and June 24, 2021.

REASONS FOR DECISION

I. Request before the Board

[1] On May 12, 2021, Corey Nash (“the applicant”) applied for a review under s. 43(1) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; FPSLRA) of a decision that the Federal Public Sector Labour Relations and Employment Board (“the Board”) had made in Nash v. Treasury Board (Correctional Service of Canada), 2021 FPSLREB 38 (“the adjudication decision”). The adjudication decision dismissed two grievances that the applicant had referred to adjudication with regard to the interpretation and application of his collective agreement (discussed in the overview section of these reasons). Section 43(1) of the FPSLRA provides as follows:

43 (1) Subject to subsection (2), the Board may review, rescind or amend any of its orders or decisions, or may re-hear any application before making an order in respect of the application.

 

[2] Section 43(2) of the FPSLRA has no application in this case.

[3] As the applicant was represented by counsel hired by his bargaining agent, the Public Service Alliance of Canada, in the proceedings that led to the adjudication decision, his bargaining agent was provided with a copy of the applicant’s application for decision review (“the application”). However, the bargaining agent elected not to participate in the application.

[4] The respondent participated in the application and was represented by the same counsel that had represented it in the proceedings that led to the adjudication decision. On August 6, 2021, the Governor in council appointed that counsel a member of the Board (PC Number 2021-0814), effective September 13, 2021. I have had no discussions with that member of the Board with regard to the application and this decision.

II. Overview

[5] The applicant is employed at the Correctional Service of Canada (CSC). He referred two grievances to adjudication, alleging discriminatory treatment in violation of his collective agreement. The first grievance related to his removal as a member of a board of inquiry in 2011 without prior discussion with him. The second grievance alleged discrimination because of his self-identification to the CSC of his Métis background and the subsequent impact on his career advancement.

[6] The first grievance related to events that commenced in November 2011. The second grievance was filed in 2013.

[7] The grievances were heard in two steps at adjudication. The adjudication hearing began in person in Edmonton, Alberta, on July 3 and 4, 2019, and continued by videoconference on December 1 to 4, 2020, because of pandemic-related restrictions. The Board denied the grievances in the lengthy adjudication decision (639 paragraphs) issued on April 13, 2021.

III. Summary of the submissions

A. For the applicant

[8] The applicant requested that the adjudication decision be rescinded or alternatively that a panel of the Board rehear the evidence.

[9] The applicant submitted that the hearing of his grievances did not take place in a timely manner and that that had caused him prejudice. He submitted that that was an inordinate delay in hearing matters related to human rights.

[10] The applicant also submitted that a Public Service Staffing Tribunal hearing and decision (Nash v. Commissioner of the Correctional Service of Canada, 2014 PSST 10; “the noted PSST decision”) was referenced in the adjudication decision and that that chronology of events caused him prejudice.

[11] The applicant submitted that initially, only three days were scheduled for the adjudication hearing, when the Board should have scheduled enough time to hear both grievances. He stated that at the conclusion of the initial three days, the respondent requested six months to prepare for the resumption of the hearing. He submitted that he was prejudiced by the respondent being given more time to prepare for the adjudication hearing. He also submitted that that was a breach of natural justice.

[12] The applicant also alleged that there was bias in the Board’s conduct of allowing the respondent more time to prepare for the adjudication hearing, delaying the hearing of the grievances for years, allowing other matters (from other grievors) that occurred after the grievances in question to be heard, and using information from the noted PSST decision.

[13] The applicant also submitted that an earlier decision (see Nash v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 98) was referenced at the adjudication hearing but overlooked in the adjudication decision.

[14] The applicant also stated that a witness referred at the adjudication hearing to notes that had not been provided to him through an access to information and privacy request. He submitted that clearly, this caused prejudice to his ability to defend his interests at adjudication.

B. For the respondent

[15] The respondent stated that it was not admitting that s. 43 of the FPSLRA applied to adjudication decisions. Assuming that s. 43 does apply to decisions dealing with grievances, the respondent submitted that the applicant did not meet the test for reviewing a decision. It submitted that clearly, the applicant seeks to relitigate his grievances.

[16] Given the workload of the respondent’s counsel at the time of the adjudication hearing, there was no advantage in terms of preparation because of the scheduling of the hearing. There was also no basis for the applicant’s allegation about “notes” that were not provided to him. The respondent submitted that the notes referenced in the adjudication decision relate to a meeting between the witness and the applicant. After that meeting, another person attending the adjudication hearing sent an email to the applicant and the witness summarizing their discussion.

C. The applicant’s rebuttal submissions

[17] The applicant submitted that the FPSLRA and its associated regulations do not provide any guidance on s. 43 or the intent of it. He submitted that there was no requirement for judicial review of an adjudication decision, although that is one option.

[18] The applicant submitted that the scheduling of human rights issues should be a priority for the Board. The Board’s delay in hearing his grievances has caused him prejudice, the applicant stated. He also submitted that the respondent’s representatives deliberately caused him prejudice from their delays and lack of prioritizing human rights issues for Indigenous people, as well as health-and-safety issues.

[19] The applicant submitted that the Board is responsible for scheduling hearings and that the Board is responsible for the fair conduct of those hearings. He submitted that it was the intent of s. 43 to deal with those types of issues.

[20] The applicant referred to a decision of the Board, Lavoie v. Treasury Board (Correctional Service of Canada), 2021 FPSLREB 54, which related to an overtime meal-allowance grievance from 2015 that was decided by the Board in May 2021. He submitted that this was evidence of the Board and the respondent prioritizing overtime meal allowances over human rights issues concerning Métis people and of systemic and institutionalized racism and discrimination. He submitted that it was the obligation of the Board and the respondent to prioritize cases and that in this case, they both failed.

[21] The applicant also submitted that there should be a transcript of hearings before the Board, as there is with other tribunals, such as the Parole Board of Canada.

[22] The applicant also referred to the Truth and Reconciliation Commission’s calls to action on justice, professional development, and training for public servants.

[23] The applicant submitted that s. 43 of the FPSLRA contemplates that the Board will act fairly and that the unjustified delays hearing his grievances have been prejudicial to him. He submitted that the only reasonable alternative is to rescind the adjudication decision and to rehear the evidence by scheduling an appropriate amount of time for both parties to present the facts at a new adjudication hearing and on a level playing field.

IV. Reasons

[24] There are two threshold issues in this application for decision review. The first is whether s. 43(1) applies to grievance adjudication decisions under Part 2 of the FPSLRA. In the affirmative, the second threshold issue is whether the Board can conduct a decision review of a grievance adjudication decision dealing with the interpretation of application of a collective agreement without the support of the applicant’s bargaining agent.

[25] The first threshold issue in this application for decision review is whether s. 43(1) of the FPSLRA applies to decisions made about grievances referred to adjudication under Part 2 of the FPSLRA or is limited to decisions made about labour-relations complaints and applications filed under Part 1. The applicant stated that the Board had broad powers of review. The respondent stated that it was not admitting that the Board had the power to review an adjudication decision.

[26] In Kruse v. Deputy Head (Canada Border Services Agency), 2021 FPSLREB 28, the Board recently noted that given the structure of the FPSLRA and the division of powers between its Part 1 and Part 2, there is uncertainty as to whether s. 43 could be applied to grievance adjudication. That uncertainty results from the Federal Court of Appeal having muddied the water in Canada (Attorney General) v. Philps, 2017 FCA 178. In earlier decisions, the court had held that the Board’s decision-review power only related to Part 1 of the Public Service Labour Relations Act and its predecessor legislation: Doyon v. P.S.S.R.B., [1979] 2 F.C. 190 (C.A.); Sincère v. Canada (Attorney General), 2005 FCA 103; and Chaudhry v. Canada (Attorney General), 2009 FCA 376. In Chaudhry, the court stated that “... [s]ince grievance decisions of Adjudicators appointed under the PSLRA are not decisions of the Board, they are not subject to reconsideration under section 43.”

[27] Under the FPSLRA and the Public Service Labour Relations Act, the powers of decision makers with regard to grievance adjudication are set out in s. 226 (1) and do not include the power to review decisions set out in s. 43(1) or any power similar to that set out in s. 43(1). Those powers are generally similar to those set out in predecessor legislation. What distinguishes the current statutory regime is that the Board now can decide grievances referred to adjudication: that change occurred in 2014. However, that does not mean that the Board was given more powers with regard to grievance adjudication than those that adjudicators have under the FPSLRA or previously had under the Public Service Labour Relations Act and its predecessor legislation.

[28] Although the distinction between “adjudicators” and the “Board” has lost its significance in light of changes made to the Public Service Labour Relations Act in 2014, it remains that powers given by legislation to decision makers (whether adjudicators or the Board) with regard to adjudication proceedings under Part 2 of the FPSLRA are different than those given to the Board with regard to labour relations proceedings under Part 1. It is true that, in some instances, similar powers exist both under Part 2 and Part 1. For example, the general power to summons witnesses is given to the Board with regard to any proceedings by section 20 of the Federal Public Sector Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) and has been extended to adjudicators by section 226(1) of the FPSLRA. However, in other instances, some powers are exclusive to Part 2 or Part 1. For example, section 226(2)(a) provides all decision makers with a specific power to interpret and apply the Canadian Human Rights Act (R.S.C., 1985, C. H‑6) with regard to adjudication proceedings under Part 2 that the Board does not possess with regard to labour relations proceedings under Part 1. Similarly, section 43(1) provides the Board with specific decision-review powers with regard to labour relations proceedings under Part 1 that decision makers do not possess with regard to adjudication proceedings under Part 2 and that the Board itself does not possess with regards to proceedings not covered by Part 1 of the FPSLRA.

[29] Despite its seminal decision in Doyon, as reaffirmed decades later in Sincère and Chaudhry, the Federal Court of Appeal has more recently commented that it believes that in a grievance adjudication the Board has the jurisdiction to amend grievance adjudication decisions; see Philps (at paragraph 8):

[8] ...I nonetheless believe that the adjudicator possessed jurisdiction to deal with the request by virtue of section 43 of the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2. This section gives the PSLREB jurisdiction to amend issued decisions. In light of the clear wording of section 43, the Board’s determination that it lacked the authority to make the requested redactions by reason of the doctrine of functus officio is unreasonable.

[30] However, the Federal Court of Appeal seemingly expressed those comments without hearing submissions from the parties on that point. In addition, the court did not explain how it came to believe that the Board now has the jurisdiction to amend adjudication decisions or why the court departed from its previous jurisprudence, which had up to then been applied assiduously by the Board since Doyon. Clearly, the court’s comments in Philps directly contradicts the court’s earlier jurisprudence. I find the longstanding jurisprudence of the court, as stated in Doyon and reaffirmed in Sincère and Chaudhry, to still be applicable, especially in the absence of any clear indication by the court that those precedents ought not longer be followed. Further, although the types of decision makers set in Part 2 of the FPSLRA has been expanded in 2014, it remains that the powers of decision makers with regard to grievance adjudication are specified in Part 2 of the FPSLRA and have been specified similarly in its predecessor legislation and that the powers of the Board with regard to labour-relations complaints and applications are specified differently in Part 1 of the FPSLRA and have been also specified differently in its predecessor legislation. I therefore find that the court’s precedents of Doyon, Sincère and Chaudhry are still applicable, especially in light of the fact that they better reflect the intention of Parliament at the time that it enacted the FPSLRA and its predecessor legislation. I therefore find that section 43 of the FPSLRA does not give the Board jurisdiction to review adjudication decisions under Part 2.

[31] I do not need to address the other threshold issue of whether a decision review of the adjudication decision requires the agreement of the applicant’s bargaining agent because of my conclusion on the first threshold issue. In any event, the parties did not make any submissions on this issue.

[32] Despite my finding that the Board has no jurisdiction to hear the decision review application and that I do not need to address the second threshold issue, I want to stress that I would have been of the view that the applicant would not have met the burden of establishing that a review of the adjudication decision was warranted.

[33] The Federal Court of Appeal has confirmed that an application for decision review under s. 43 is not an appeal or a request for a new determination; see Chaudhry at para. 8, which states as follows: “... Rather, it is a limited exception to the finality of the Board’s decisions which enables the decision-maker to revisit the decision in the light of fresh evidence or a new argument.”

[34] Chaudhry v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 39, had set out the following guidelines for reviewing a decision under s. 43(1):

...

29 ... The reconsideration must:

•not be a relitigation of the merits of the case;

•be based on a material change in circumstances;

•consider only new evidence or arguments that could not reasonably have been presented at the original hearing;

•ensure that the new evidence or argument have [sic] a material and determining effect on the outcome of the complaint;

•ensure that there is a compelling reason for reconsideration; and

•be used “... judiciously, infrequently and carefully ...” ....

...

 

[35] The applicant now raises the following allegations related to the adjudication decision: the delay hearing the grievances, the time given to the respondent to prepare compared to the time given to him, the failure to consider an earlier decision with regard to the applicant, and the alleged reliance by a witness on notes to which he did not have access. He also referred to the lack of a transcript of the adjudication hearing. The subject of none of those allegations had a material and determining effect on the outcome of the adjudication decision. In addition, with the exception of the alleged failure to consider an earlier decision, the applicant has not raised new evidence nor arguments that could not have been raised at the adjudication hearing by his bargaining agent’s representative.

[36] Delay in scheduling a hearing was an argument that the applicant could have made at the commencement of the adjudication hearing. I have already mentioned that the applicant was represented by counsel hired by his bargaining agent in the proceedings that led to the adjudication decision. The argument that the respondent was given more time to prepare is also not a new argument as it could have been raised by the applicant at the time of the adjournment or at the reconvening of the adjudication hearing.

[37] The failure to consider an earlier decision relating to the applicant is not a compelling reason for decision review. On its face, that earlier decision was not related to the subject matter of the grievances referred to adjudication and could not have had a material and determining effect on the outcome of the adjudication decision.

[38] The issue of notes used by a witness is not new either. It could have been raised at the adjudication hearing by the applicant when the evidence was provided. Similarly, the issue of a transcript of the adjudication hearing could have been raised by the applicant at that hearing, as the Board’s longstanding practice has been not to record its hearings.

[39] Clearly, the applicant is unhappy with the outcome of the adjudication decision. However, an application for decision review is not an opportunity to relitigate grievances.

[40] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

V. Order

[41] The application for decision review is dismissed.

November 8, 2021.

Ian R. Mackenzie,

a panel of the Federal Public Sector

Labour Relations and Employment Board