Date: 20220303

Files: 566-02-14185, 14700, and 41704

 

Citation: 2022 FPSLREB 11

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

 

MORRIS KLOS

Grievor

 

and

 

Deputy head

(Correctional Service of Canada)

 

Respondent

Indexed as

Klos v. Deputy Head (Correctional Service of Canada)

In the matter of individual grievances referred to adjudication

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

For the Grievor: Himself

For the Respondent: Andréanne Laurin, counsel

Decided on the basis of written submissions,
filed October 7, November 22, and December 10, 23, and 24, 2021,

and January 25, 2022.

REASONS FOR DECISION

I. Summary

[1] Morris Klos (“the grievor”) referred three grievances to adjudication. Each one was referred pursuant to s. 209(1)(b) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the FPSLRA”) as being related to “... a disciplinary action resulting in termination, demotion, suspension or financial penalty ...”.

[2] The three grievance files were joined for hearing the matters. In advance of the hearing, the Correctional Service of Canada (“the respondent” or CSC) objected to the adjudication of the grievances by this Federal Public Sector Labour Relations and Employment Board (“the Board”) on the ground that the grievances do not involve disciplinary actions. Rather, it submitted that their true nature relates to allegations of procedural fairness and abuse of process, which is barred from being referred to adjudication by s. 209(1)(b).

[3] Having discussed the matter with the parties in a pre-hearing teleconference, on November 15, 2021, I informed them that we would proceed by means of written submissions to determine the respondent’s objection before hearing the merits of the grievances.

[4] Having carefully considered the submissions, I find that the grievances do not relate to disciplinary actions resulting in termination, demotion, suspension, or financial penalty. As such, the grievances cannot be referred to adjudication before the Board.

[5] The grievor has also repeatedly requested that the Board order the respondent to reinstate his salary dating to 2016 pending the final disposition of these three grievances. This Board and the Federal Court of Appeal have both declined these requests several times. In fact, on October 22, 2019, the Federal Court of Appeal (in its files A-78-19 and 20-A-1) ruled that the grievor’s repeated requests for it to order such injunctive relief was an abuse of process.

[6] Undeterred, in 2020 and 2021, the grievor again asked the Board for such an order, and upon being declined in 2020 again (unsuccessfully), he sought judicial review of the matter before the Federal Court of Appeal (see Klos v. Canada (Attorney General), 2021 FCA 238). The grievor’s most recent request for reinstatement of his salary was rejected by the Federal Court in Klos v. Canada, 2022 FC 68.

[7] This continuing litigation and repeated requests for injunctive relief suggest that he is unable to accept the outcomes. Endless litigation of the same issues is an abuse of process and a waste of scarce Board resources. It must stop. As such, I find that the grievances and requests for injunctive relief to reinstate his pay in these proceedings are trivial, frivolous and vexatious.

[8] The grievor is barred from bringing forward any further proceedings before this Board with respect to his former employment with the Correctional Service of Canada that ceased on September 20, 2016, without first being granted leave of the Board.

II. Background

[9] The grievor is a former correctional officer. His employment with the respondent was terminated on September 20, 2016, for disciplinary reasons.

[10] In the first of the three grievances before me, the grievor contests the respondent’s request, on November 25, 2016, to recover a salary overpayment of $542.13. On December 21, 2016, he responded by sending a cheque for the requested amount and by writing this:

...

I respectfully disagree with both the rationale for, and the timing of, this debt collection; therefore, please consider this letter a formal grievance under the Public Service Labour Relations Act regarding a principle of fundamental justice, specifically, abuse of process and wilful aggravation of a heart condition resulting from Employer decisions and actions unfounded in facts and law, and per physicians’ explicit notification to the Employer, a wilful attempt to cause physical harm.

...

 

[11] The grievor requests a “... written apology, reversal of Employer decisions and actions upon which the decision to commence this debt collection was made, and reimbursement ...”.

[12] The second grievance is dated October 16, 2017, more than one year after the termination of his employment. It states as follows:

...

On September 7, 2017 ... a decision was made by the Workers’ Compensation Appeal Tribunal (BC) denying coverage for work-place injuries after Correctional Service Canada (CSC) published false documents and altered a sworn Federal Court of Appeal affidavit in the course of the Tribunal’s investigation.

...

 

[13] The grievance then refers to the circumstances of his termination, including that it was based on compound disciplinary processes. The grievor requests a remedy that consists of the “... unconditional removal of all discipline from my file, return of financial penalties, reinstatement of leave balances, past and ongoing wages and benefits towards affecting a safe return to work under physician care, and protection from reprisal.”

[14] The second grievance was referred to adjudication on December 27, 2017.

[15] The third grievance is dated December 6, 2019, more than three years after his termination of employment, and states this:

...

Please consider this my grievance against my Employer, Correctional Service of Canada for abuse of process: including inter alia, ongoing financial penalty, untimely filing of a motion or filing a motion manifestly without merit, direct consequences of termination of employment contrary to section 209(1)(b) of the Federal Public Sector Labour Relations Act, a direct consequence of reengagement of a disciplinary process contrary to physicians’ orders causing physical harm.

...

 

[16] The grievor then explains as follows:

On July 5, 2019, after four hospitalizations, and after Abbotsford Police and Royal Canadian Mounted Police declined to interview me, and upon seeking intervention from a Superior Court of British Columbia, the Attorney General advised, “[W]orkplace claims like this [are] barred from being pursued outside of the grievance process: 236(1) The right of an employee to seek redress by way of grievance for any dispute relating to his or her terms of employment is in lien of any right of action that the employee may have in relation to any act or omission giving rise to the dispute.”...

...

[Emphasis in the original]

 

[17] The grievor indicates that this third grievance could be resolved through “... retributive financial and/or incarcerative penalty awarded to parties complicit, and making me whole including restored employment.”

[18] The third grievance was referred to the Board on April 1, 2020.

III. Submissions by the parties

A. The respondent’s objection

[19] The respondent submits that the grievor has not grieved his termination or any disciplinary measures. It argues that the true nature of the grievances relates to procedural fairness and alleged abuse of process, which may not be referred to the Board for adjudication under s. 209 of the FPSLRA. Consequently, the Board lacks jurisdiction to hear the grievances.

[20] The respondent submits that while employees are entitled to present grievances on a wide variety of issues concerning their terms and conditions of employment, ss. 208 and 209 of FPSLRA provide limits on what can be grieved and subsequently referred to the Board for adjudication.

[21] The respondent states that even though the grievor refers to s. 209(1)(b) of the FPSLRA in his reference to adjudication, the essence of his grievances are matters either of the interpretation of the collective agreement or of other administrative actions or procedures. As such, he could not refer his grievances to adjudication because they address matters that either cannot be referred to adjudication under s. 209 of the FPSLRA or require the support of his bargaining agent pursuant s. 209(2) of the FPSLRA, which he does not have in this case.

[22] And further, pursuant to the Federal Court of Appeal’s decision in Burchill v. Attorney General of Canada, [1981] 1 F.C. 109 (C.A.), the respondent submits that the grievor is now precluded from changing the nature of his grievances.

[23] The respondent adds that grievances that were filed more than three months, a year, and three years after the end of the grievor’s employment do not align with the FPSLRA’s labour relations regime and the efficient resolution of matters in respect of terms and conditions of employment.

B. The grievor’s response

[24] The grievor submits that he was terminated based on a disciplinary investigation that was convened, contrary to his physician’s orders, which caused him three cardiac events. He further claims that his termination, based on progressive discipline, was punishment for refusing to accept an earlier settlement offer from the respondent. He submits that he did not accept that offer because he was concerned about its legality and about the consequences to his health.

[25] He asks that the Board declare the respondent’s discipline inappropriate and not reasonably safe, given his health. As such, he submits that he should be reinstated with appropriate retroactive pay and benefits or that alternatively, he should receive an appropriate severance package.

[26] Included with the submissions are what the grievor describes as the “... initial Employer offer with subsequent disciplinary measures ...”, along with a “supporting document Compendium ...”. He also lists the following authorities: Verville v. Canada (Service correctionnel), 2004 FC 767; Tryggvason v. Transport Canada, 2012 OHSTC 10; Tench v. Canada (National Defence, Maritime Forces Atlantic), Decision No. OHSTC-09-001 (20090127)(OHSTC); and Forster v. Canada (Customs and Revenue Agency), Decision No. 02-014 (20020704)(OHSTC).

[27] The respondent’s objection to jurisdiction and the potential consequences of it should it be upheld were discussed with the parties in a case management teleconference. The grievor provided the following after being requested to respond in writing to the objection:

Employee submissions

May it please the Board to consider the following in light of documentary evidence.

On September 20, 2016, Correctional Service Canada terminated my employment under section 12(1)(c) of the Financial Administration Act on the basis of a disciplinary investigation convened contrary to physician orders causing three cardiac medical events. In applying this compounding disciplinary process the Employer punished me for refusing to accept wages in exchange for a comprehensive waiver of my right to grieve any related matter, including this matter. It was impossible for me to accept the Employer’s offer because I was concerned for its legality and was fearful of a recurring cardiac response which physicians had linked to my job and subsequently ordered me off work for, and gave conditions for safe medically supervised return to work, initially agreed upon by all parties.

I ask the Board declare the Employer’s discipline inappropriate, in this specific case being not reasonably safe per medical records, and for this reason, to reinstate continuous paid employment, benefits and seniority from the initially agreed-upon return to work date, May 13, 2014, to present and ongoing, taxes and Union dues withheld, and transfer of employment to another department or an appropriate severance package.

Please accept my submission prior to the Board’s deadline with respectful request for any gap in case or evidence the Board may want me to address, if any exists. I respectfully provide the below listed authorities taken from the Employer’s policy manual which the Board may find apply in this case.

Please find attached:

1. initial Employer offer with subsequent disciplinary measures (3 pages);

2. supporting document Compendium (beginning at page 6)

All of which is respectfully submitted on this 10th day of December, 2021.

...

 

[28] In this submission, the grievor includes a copy of what appears to be a “Terms of Settlement” document dated May 2014. I have not read the details of and do not accept this document as being properly before me in my determination of this objection to jurisdiction.

[29] The grievor’s submission also includes the “Applicant’s Compendium” that he submitted to the Federal Court of Appeal in docket A-160-20. Having carefully reviewed this document, I find that it contains many medical records, doctor correspondence, some receipts, a copy of a disciplinary investigation of the grievor, and a letter dated September 20, 2016, terminating the grievor’s employment for disciplinary reasons and citing, among other things, his “repeated negligent behaviour”.

[30] The grievor does not cite any specific part of this 59-page, Federal Court of Appeal compendium of documents. Nor, upon my careful review of its entirety, could I find any information related to the objection challenging my jurisdiction to receive the referrals to adjudication of these three matters.

[31] Following these initial submissions, the grievor requested the opportunity to provide additional submissions, which was granted, along with several extensions in which to do it. However, other than seeking to withdraw the previously noted submissions, he did not provide anything further addressing the respondent’s objection. Rather, he continues to request that he be granted injunctive relief to reinstate his salary.

IV. Analysis and conclusions

[32] In the first grievance (Board file no. 566-02-14185), dated December 21, 2016, the grievor disagrees with the recovery of a salary overpayment and alleges that it constitutes an abuse of process. According to the respondent, this grievance refers to administrative procedures that the respondent took to recover a salary overpayment while the grievor was on sick leave without pay.

[33] As counsel for the respondent submitted, the respondent’s procedure to recover an overpayment constitutes an administrative action based on an employment directive or the interpretation of the pay and leave provisions of the collective agreement. It was not a disciplinary matter resulting in financial penalty, and therefore cannot be referred to adjudication under s. 209(1)(b) as the grievor attempted to do.

[34] In the second grievance (Board file no. 566-02-14700), dated October 16, 2017, the grievor refers to a process of the Workers’ Compensation Appeal Tribunal (in British Columbia; “WCAT”). On September 7, 2017, nearly a year after his employment was terminated, this tribunal denied coverage for his alleged workplace injuries. This grievance alleges that the respondent published false documents and altered a sworn Federal Court of Appeal affidavit in the course of that tribunal’s process.

[35] In this grievance, the grievor also takes issue with the disciplinary process that led to his termination, including that it violated the Canada Labour Code (R.S.C., 1985, c. L-2; “the Code”) and Treasury Board guidelines.

[36] The Board finds that the second grievance is also not related to disciplinary action. Again, the circumstances described in the grievance arose after the grievor had already been terminated. The grievor did not identify in his grievance or submissions what further behaviour the employer is allegedly intending to correct or punish in these actions following his termination. Rather, it seems clear that the grievance is aimed at the grievor’s dissatisfaction with the WCAT’s decision and the respondent’s actions as part of that process. However, the Board is not an avenue for judicial review or appeal of the WCAT decision.

[37] To the extent that the grievor tries to tie the WCAT decision to the disciplinary process leading to his termination, again, his claim about being unfairly treated does not convert the employer’s actions before the WCAT into a disciplinary action. Similarly, the second grievance further requests the unconditional removal of all discipline from his file, without identifying what those disciplinary actions are or how they are linked to the WCAT process.

[38] With respect to the alleged violations of the Code or Treasury Board guidelines, no specific provisions or guidelines have been identified by the grievor. In any event, as submitted by counsel for the respondent, such a violation is either a question of the application or interpretation of the relevant collective agreement, which requires the bargaining agent’s approval and representation to refer a grievance to adjudication before this Board (see ss. 209(1)(a) and 209(2) of the FPSLRA), or it is a question of the interpretation or application of a direction or instrument made or issued by the employer that deals with terms and conditions of employment, which cannot be referred to adjudication (see ss. 208(1)(a)(i) and 209 of the FPSLRA).

[39] The third and final grievance (Board file no. 566-02-41704) was filed more than three years after the grievor’s employment was terminated and alleges an abuse of process by the respondent. The grievance identifies the untimely filing of a motion or a motion without merit as one ground. Presumably this arises from something that was done in the course of the several applications that he pursued before the Federal Court of Appeal. The grievor also identifies an event on July 5, 2019, before the Superior Court of British Columbia.

[40] Besides this grievance being filed years after his employment ceased, I cannot discern that even with the most generous reading of his grievance possible, the grievor alleges any specific disciplinary action by the respondent. Like with the second grievance, the grievor seemingly tries to connect his applications before the Federal Court of Appeal and the British Columbia Supreme Court to the disciplinary process leading to his termination. However, a general allegation of an abuse of process, founded in a claim of being unfairly treated during the disciplinary process, does not then convert the respondent’s alleged actions in these other court proceedings into disciplinary actions. Again, the Board is not an avenue to appeal the grievor’s dissatisfaction with these other court proceedings or the respondent’s actions as part of that process.

[41] In his submissions in response to the present objection, the grievor argued that the disciplinary investigation leading to his termination was convened contrary to physician orders. He added that, in applying this compounding disciplinary process the respondent punished him for refusing to accept wages in exchange for a comprehensive waiver of his right to grieve any related matter. He claims that he did not accept that offer because he was concerned about its legality and was fearful about the repercussions on his health.

[42] While the grievor has tried to link the three present grievances to his termination or the disciplinary process leading to his termination, for the reasons stated above, I do not accept that argument or that the grievances are otherwise related to any disciplinary action.

[43] The allegation about being punished for not accepting a settlement is new. It does not appear in any of the grievances and, as the respondent submitted, would change the nature of the grievances, which is precluded pursuant to the Federal Court of Appeal’s decision in Burchill.

[44] Similarly, as mentioned previously, the grievor’s submissions, included a copy of what appears to be a “Terms of Settlement” document dated May 2014. Again, the grievor was terminated in 2016 and the circumstances described in the present grievances arose following that termination. Despite the grievor’s additional claim that he was punished as a result of not accepting the settlement in 2014, it still does not explain how the post-termination events specified in the three grievances were related to continued punishment or disciplinary actions by the respondent.

[45] The grievor’s submission also included the “Applicant’s Compendium” that he submitted to the Federal Court of Appeal in docket A-160-20. Having carefully reviewed this document, I find that it contains many medical records, doctor correspondence, some receipts, a copy of a disciplinary investigation of the grievor, and a letter dated September 20, 2016, terminating the grievor’s employment for disciplinary reasons and citing, among other things, his “repeated negligent behaviour”.

[46] The grievor does not cite any specific part of this 59-page, Federal Court of Appeal compendium of documents. Nor, upon my careful review of its entirety, could I find any information related to the objection challenging the referrals to adjudication of these three matters.

[47] Therefore, I conclude that the grievances do not relate to disciplinary actions resulting in termination, demotion, suspension, or financial penalty. As such, they are not grievances that can be referred to adjudication as the Board lacks jurisdiction to hear these matters.

V. The grievor’s conduct and pattern of behaviour

[48] This decision is not the first in which the Board has dealt with a grievance that this grievor referred to adjudication in which he complained of similar circumstances. As stated previously, the heading of the third grievance (Board file no. 566-02-41704) listed three applications for judicial review of previous Board decisions: A-1-17, A-424-17 and A-78-19.

[49] In Klos v. Treasury Board (Correctional Service of Canada), 2017 FPSLREB 41 (“Klos 2017”), the Board determined that it could not adjudicate the grievance referred to it by the grievor under s. 209(1)(b) of the FPSLRA as it was not related to a disciplinary action thus depriving the Board of jurisdiction (para. 29).

[50] In that decision, the Board concluded that the grievance at issue concerned the way the employer managed the investigation process into disciplinary issues, as well as the grievor’s gradual return to work. The Board noted that while the grievance provided some information on previous discipline imposed, it did not state that a disciplinary measure was being grieved; nor did it ask for any disciplinary measure to be reversed (see Klos 2017, at para. 25).

[51] Without any disciplinary action apparent in what he was grieving, the Board concluded that the alleged discrimination and the handling of the investigation process could come before it only by being linked to the collective agreement, with the bargaining agent’s support (see ss. 209(1)(a) and (2) of the FPSLRA).

[52] The grievance at issue in Klos 2017 was filed before the grievor’s termination. On that point, the Board noted that the grievor tried to add his termination to the grounds of the grievance as further illustrating disciplinary intent and that he asked for reinstatement as a remedy.

[53] However, the Board concluded that there was no evidence to suggest that the termination was ever part of his grievance and that the grievance, as originally presented, was against a failure to accommodate a physical ailment in the context of an investigation and a return to work (see Klos 2017, at para. 28).

[54] The Board’s decision in Klos 2017 was upheld on judicial review in Klos v. Canada (Attorney General), 2018 FCA 160 (Federal Court of Appeal docket A-424-17), and an application for leave to appeal that decision to the Supreme Court of Canada was dismissed (case no. 38408, February 14, 2019).

[55] On August 16, 2018, the grievor filed another grievance with respect to an access-to-information and privacy request he made to the CSC and referred to his judicial review application in Federal Court of Appeal docket A-424-17. The grievance stated this:

...

This grievance alleges obstructively slow processing prevented the Applicant in Federal Court of Appeal file no. A-424-17 from providing a complete record to the Court, which hindered his ability to prove causation of medical events and unlawful termination in the matter.

...

 

[56] That grievance was referred to the Board on January 23, 2019, again pursuant to s. 209(1)(b) of the FPSLRA. The Board dismissed it on February 5, 2019, as follows:

...

The documents filed show nothing which would indicate that a prima facie case of discipline exists, nor anything which might trigger the Board’s jurisdiction under section 209(1)(b) of the Federal Public Sector Labour Relations Act as alleged by the grievor, or, for that matter, any of the other possibilities under section 209.

...

 

[57] The grievor then sought judicial review of the Board’s decision of February 5, 2019, but that application was subsequently discontinued on January 21, 2020 (Federal Court of Appeal docket A-78-19).

[58] As indicated, the third grievance at issue in this decision was referred to the Board on April 1, 2020. Its heading lists the grievor’s previous Federal Court of Appeal applications, including dockets A-424-17 and A-78-19.

[59] Shortly after referring that third grievance to the Board, on June 1, 2020, the grievor requested that the Board “... initiate proceedings to acquire an injunction to stop the employer from with-holding [sic] pay until this matter is heard on its merits, and appeals or time for appeals are expired.” The Board denied that request on June 15, 2020.

[60] The grievor then commenced another application for judicial review against the Board’s decision of June 15, 2020, denying him injunctive relief (Federal Court of Appeal docket A-160-20).

[61] On August 16, 2021, the parties were notified that a hearing for the three grievances at issue in this decision was scheduled for November 22 to 26, 2021. In response, among other things, the grievor requested that a case management conference be convened before the hearing. The Board offered its availability for one at the end of September 2021. However, the grievor indicated that he would provide his availability only once he received a hearing date from the Federal Court of Appeal for his judicial review application in docket A-160-20.

[62] On September 28, 2021, the Board indicated that the hearing remained scheduled and that unless it received a request to postpone, it would proceed with the hearing, as scheduled. In subsequent correspondence, it provided further availabilities for a case management conference at the end of October 2021. When the grievor subsequently indicated that his availability remained unchanged, the Board scheduled such a conference for October 18, 2021.

[63] On October 15, 2021, the grievor requested that his hearing be postponed until his judicial review application in docket A-160-20 was heard. Among other things, these were the reasons for the postponement request:

...

1. I do not have a functioning .pdf reader on my private device, document review, including of the objection at hand, is currently not possible;

2. I am not aware of functioning meeting software on my private device, I cannot attend any meetings;

3. Public access hardware/software has proven unreliable for me, therefore is not viable;

4. I do not have safe/healthy access to my files for review in my current living space, as things are, I am simply unable to present my case;

all of which may be remedied by injunctive relief.

...

 

[64] That same day, the respondent wrote to the Board, objecting to the grievor’s postponement request. Among other things, it argued that the proceeding in front of the Federal Court of Appeal in docket A-160-20 would not bring about a final resolution of his actual grievances, and as such, there was no reasonable reason to postpone the hearing pending the outcome in the Federal Court of Appeal’s file.

[65] Despite not previously indicating his availability for the case management conference, the grievor attended it on October 18, 2021. Among other things, he explained during the call that he had no means to participate electronically in the hearing of his grievances. As in his postponement request, he suggested that an expected financial award arising from his judicial review application to the Federal Court of Appeal in docket A-160-20 would allow him the wherewithal to prepare for his Board hearing. During the call, the grievor also asked that the Board provide him with a paper copy of his three grievance files. Given that he did not have an address to which the Board could send him these documents, he suggested that they be sent to one of the CSC’s parole offices in Abbotsford, B.C., where he would collect them.

[66] The Board prepared the files and coordinated with the respondent to identify a contact person in Abbotsford, where the documents could be couriered and subsequently picked up by the grievor. These instructions were provided to the parties on October 22, 2021, and on November 1, 2021, the Board confirmed with the grievor that the files were available for pickup, along with instructions on how to do it.

[67] On November 3, 2021, the grievor wrote to the Board’s registry officer as follows:

...

Please confirm your intent to direct me to attend the same place for the same reason to meet one of the same persons under the same conditions as caused me multiple cardiac events, and adding conditions that have no regard for a cardiac medical exemption.

...

 

[68] In response, on November 3, 2021, the Board reminded the grievor that the files awaiting pickup were those that he requested and at a location that he suggested. He responded the next day, indicating that his availability for pickup was December 2, 2021, at a different location. I note that this delayed availability for the pickup of his files was after the dates scheduled for his hearing before the Board (November 22 to 26, 2021) and corresponded to the day after his Federal Court of Appeal hearing was to be heard (December 1, 2021).

[69] Also, on November 4, 2021, the respondent wrote to the Board, indicating as follows:

...

The employer would like to inform this Board of serious allegations that were made against it. In an email dated November 3, 2021, and addressed solely to the employer (attached), the grievor alleged that the employer committed bribery by having Mr. [L] facilitated [sic] the procedures for the grievor being provided with a copy of his grievance files. However, this procedure was discussed during the case management teleconference that occurred on October 18, 2021, and we all agreed that the grievor would pick up the documents in one of the employer facilities in Abbotsford, B.C. as the grievor was not able to provide a mailing address. It was understood that the persons that attended the call on behalf of the employer were not located in B.C. and that a contact person would be identified to facilitate the procedures. The employer cannot accept that serious allegations like bribery are being made by the grievor.

...

 

[70] The grievor’s email of November 3, 2021, attached to the respondent’s correspondence, was as follows:

Good morning Employer,

I intend to resume work on this compound discipline termination matter December 2, 2021 per my October 18, 2021, section 128 CLC work refusal.

This matter was founded on an offer Mr. [L] facilitated in violation of section 120 CCC and section 81(a)(i) FAA, completed by Ms. [V] in violation of 217.1 and 221 CCC and Mr. [L] in violation of 23(1) CCC, which all may be prudently punished, deterred and remedied as discussed prior under the Labour Code, rather than per sections 11 and 12 CCC or the FAA.

Due to the case-fatal prohibitive Employer-caused financial situation, additional activity taken to obstruct or attempt or cause to fail, my FCA A-160-20 application, including a position opposed to the Employer-Employee agreement before the Court in that application, or refusal to adjourn current Board proceedings, violates sections 21(c) and 139(2) CCC and 80(1)(c) FAA, now compounded by [the Board Registry Officer’s] actions and ommisions chargeable under sections 21, 22, 23, 24(1) and 25.1(11), 217.1, 221, and 660 CCC.

Please advise regarding your consent to adjourn and your position on injunctive relief.

...

[Sic throughout]

 

[71] On November 15, 2021, I rejected the grievor’s motion to postpone the hearing and ordered that the matter instead proceed by means of written submissions, commencing with considering the respondent’s objection to the grievances. In response to the grievor’s message of November 3, 2021, to the respondent, I indicated that this communication was unacceptable on his part as it named staff of the respondent and the Board’s registry officer in accusations that were completely undeserved.

[72] I directed that the grievor address all future communications solely to the respondent’s legal counsel and the Board’s registry and that they be written in a respectful manner, and I indicated that further disrespect or poor decorum from him would not be tolerated. He was asked to provide a response to the respondent’s objection to his grievances by December 13, 2021.

[73] The grievor’s judicial review application in docket A-160-20 was heard on December 1, 2021, and was dismissed on December 8, 2021, in Klos v. Canada (Attorney General), 2021 FCA 238.

[74] On December 10, 2021, as indicated, the grievor provided his initial response to the respondent’s objection. Then, on December 13, 2021, he requested that “... a copy of the Board’s record be scanned to me here, with any extension the Board may deem appropriate, so I can review what is already before the Board and gather myself and my submissions.”

[75] The Board granted both of the grievor’s requests. He was provided until December 23, 2021, to complete his response to the respondent’s objection and was provided an electronic copy of the Board’s files. Similarly, the Board reminded him that paper copies of the files remained available for pickup at the location and in the format that he had previously suggested.

[76] On December 23, 2021, the grievor attempted to retract his submissions and reiterated his request for injunctive relief, as follows:

...

On November 15, 2021, the Board returned an interim decision at paragraphs [3] and [7] referencing both oral and written respondent caused fatalities (also at pages 12-13 of A-160-20 Motion to Reconsider).

As on pages 27 and 24 of my A160-20 Compendium, these fatalities were predicted medically and psychologically, also evident before the honorable Court in a case fatal physiological malfunction in oral argument December 1, 2021.

For these reasons and the likely impact of a Board decision on unreliable or inadequate material, and to prevent violation of sections 122.1 and 124, Part Ii, Canada Labour Code, considering my Employment is continued under s. 2(2) of the FPSLRA until the honorable Board renders its final decision, I respectfully retract my current submissions to the Board as unreliable and admit due to lengthy passage of time I cannot safely continue working on disciplinary material without pay per medical and psychological orders.

I respectfully ask the Board cause the Minister to bring a request for injunctive relief to an appropriate superior court of record, or to intervene immediately in A-160-20 in support of reconsidering injunctive relief, on the basis of case fatality, so we can conclude this matter quickly and safely, or to direct the Employer to respond to A-160-20 in such a manner that we may continue before you reliably and safely, or anything else the Board may deem just.

...

[Emphasis in the original]

 

[77] In response, the respondent asserted that the Board had already rejected the grievor’s request for injunctive relief and further that the Federal Court of Appeal upheld that decision. Counsel requested that the grievor’s latest request be declined and declared res judicata.

[78] On January 14, 2022, the Board determined that there was no basis to grant the retraction of the grievor’s submissions. It had already made a decision on injunctive relief, an application for judicial review with respect to that decision had been dismissed, and several extensions had already been granted to him.

[79] To the extent that the grievor sought an order from the Board with respect to his continued judicial review efforts, the Board noted that the Federal Court of Appeal, and the respondent’s actions before it, were completely independent of the Board.

[80] In light of the respondent’s submissions, the Board also notified the grievor that continuing to raise the issue of injunctive relief could result in a declaration that the issue was res judicata or, otherwise, an abuse of the Board’s process. Further, any continued attempts to delay the consideration of his grievances could result in them being summarily dismissed as being trivial, frivolous and vexatious pursuant to s. 21 of the FPSLREBA. He was given until January 18, 2022, to provide any further submissions.

[81] On January 17, 2022, the grievor again reiterated his request for injunctive relief, as follows:

...

Thank you for the extension, I would kindly ask more of the same as follows:

My res judicata injunctive requests were no more than concurrent opportunities for the Board to give jurisdictional direction to mitigate severe, now fatal, prejudice. To reject merit on the basis of a concurrent non-jurisdictional process, well, [sic]

While Canada (Border Services Agency) v. C.B. Powell Limited, 2010 FCA 61, [2011] 2 F.C.R. 332 may be construed by some as permitting every manner of International, Charter, Criminal or other violations of law, in context, Criminal Code sections 25.1(11) and 464(a) do not.

Further, C.B. Powell grants the Court precedent to adequately remedy fatal prejudice, in this case to make possible a reasonably fair hearing on merit per the Supreme Court in Cardinal c. Directeur de l’Etablissement Kent, [1985] 2 R.C.S. at page 661 - all concede the Board has no jurisdiction to remedy fatal prejudice; moreover, by granting a 5 week medically supervised extension from delivery of injunctive relief to make submissions, the Board will prevent further violations of the Criminal Code.

I respectfully offer imposing equal conditions on the Employer’s authorized representative to balance prejudice is neither lawful or desirable precedent; however, should the Board, as Master of its own processes, direct such remedy I would kindly intervene for the respondent and ask the Board authorize some form of sedation prior to the breaking of three molars.

Although perhaps uniquely prone to abuse due to my adherence to Romans 13, I remain confident in a positive outcome.

This submission is respectfully made in violation of 464(a) CCC and 128 CLC.

...

 

[82] Given the Board’s previous directions, no further extension was granted to the grievor, but he was given until January 18, 2022, to make any final submissions on the respondent’s objection. He did not provide any further submissions.

[83] I note that very recently, the Federal Court has ruled in Klos v. Canada, 2022 FC 68, that:

...

(3) Declaration of the Plaintiff’s right to pay from the date of termination

[8] The Court does not have jurisdiction to grant this relief for several reasons.

...

[37] To be clear: a party making unjustified allegations of criminal conduct on the part of counsel for making legal submissions, even if those submissions are adverse to the party, undermines their own case, and such conduct may be considered frivolous and vexatious, and an abuse of process of the Court ....

...

 

[84] In my view, despite the grievor’s very unfortunate personal circumstances, his conduct and pattern of behaviour as outlined above indicates that he may continue to refer grievances to this Board, raising similar issues as those in this decision and that have been dealt with in other Board decisions.

[85] Additionally, the grievor’s conduct towards the Board, its registry and the respondent was, at times, vexatious and intent on frustrating the Board’s process. His continuing litigation of similar issues and repeated requests for injunctive relief suggest that he is unable to accept the outcome of previous Board decisions.

[86] Continued litigation of this nature is an abuse of the Board’s process and a waste of resources for all involved, including those parties who await a hearing date before the Board.

[87] In the letter of decision (unpublished) dated, November 15, 2021, the Board warned the grievor:

...

[8] This communication is contemporaneously incoherent and unacceptable as it names staff of the respondent and also the Board registry officer assigned the file in accusations that are completely undeserved in this venue.

...

[13] The grievor shall henceforth address all communications solely to the respondent’s legal counsel and the registry of this Board. All communications from the grievor shall be written in a respectful manner. No further disrespect or poor decorum from the grievor will be tolerated.

...

 

[88] The Board has addressed similar circumstances in which a litigant seems incapable of accepting the final disposition of his or her file. See Bernard v. Canada Revenue Agency, 2017 PSLREB 46 at para. 91, in which Adjudicator Jaworski wrote this:

91 Given all the facts that have been set out and the findings that have been made in this decision, it is clear to me that the complainant is not prepared to leave this matter alone, despite the rulings made thus far, including by the SCC. Clearly, she is attempting to relitigate the same issue that has long been dealt with fully and finally, and her actions are unnecessarily putting costs and expenses to the CRA, the PIPSC, and the Board to which they should not be subjected. As such, I find that the complaint in these proceedings is vexatious. Accordingly, the complainant will not be allowed to bring any further proceedings before this Board with respect to the issue of the disclosure of home contact information to bargaining agents without first seeking leave of the Board.

 

[89] I have come to the same conclusion for the same reasons in the matters before me. The three grievances at bar and the related matter of the grievor’s efforts to have his pay reinstated independently of the disposition of these grievances are declared trivial, frivolous and vexatious.

[90] In the circumstances, I find it appropriate to put similar conditions on any further attempts by the grievor to refer these same matters in grievances or complaints to adjudication before the Board.

[91] The complainant is barred from bringing forward any further proceedings before this Board with respect to his former employment with the Correctional Service of Canada that ceased on September 20, 2016, including reinstatement of his pay related thereto, without first being granted leave of the Board.

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

(The Order appears on the next page)

VI. Order

[93] The three grievances are denied.

[94] The complainant is barred from bringing forward any further proceedings before this Board with respect to his former employment with the Correctional Service of Canada that ceased on September 20, 2016, without first being granted leave of the Board.

March 3, 2022.

Bryan R. Gray,

a panel of the Federal Public Sector

Labour Relations and Employment Board