FPSLREB Decisions
Decision Information
The complainant made a complaint against his union (“the respondent”), alleging that it had engaged in an unfair labour practice within the meaning of s. 190(1)(g) of the Federal Public Sector Labour Relations Act (“the Act”) – he alleged that the respondent did not properly advise and represent him – essentially, he accused it of (1) taking no action to help him with his two gradual returns to work, (2) not completing an investigation report, and (3) not following up with him or answering his questions – the respondent raised a preliminary objection, arguing that the complaint was inadmissible and that it should be summarily dismissed because it was not made within the 90 day time limit set out in the Act – the Board found that the complaint was not made within the time limit set out in the Act – the Board also found that the evidence adduced about the alleged events that occurred after the 90 day time limit preceding the complaint did not support an unfair representation case.
Complaint dismissed.
Decision Content
File: 561-02-41087
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Employment Board
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BETWEEN
Complainant
and
UNION OF CANADIAN CORRECTIONAL OFFICERS -
SYNDICAT DES AGENTS CORRECTONNELS DU CANADA - CSN
Ferguson v. Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN
In the matter of a complaint under section 190 of the Federal Public Sector Labour Relations Act
Before: Nathalie Daigle, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Claude Guilbault and Alexandre Painchaud, representatives
For the Respondent: Franco Fiori, counsel
September 7 to 9, 2021, and February 24, 2022.
(Written submissions filed March 1 and 3, 2022.)
[FPSLREB Translation]
REASONS FOR DECISION
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FPSLREB TRANSLATION
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I.
Complaint before the Board
[1]
On October 5, 2019, Stéphane Ferguson (“the complainant”) made a complaint against the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (“UCCO-SACC-CSN” or “the respondent”). He alleged that the respondent committed an unfair labour practice within the meaning of s. 190(1)(g) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”). He alleged that the respondent did not properly advise and represent him between November 20, 2017, and October 4, 2019.
[2] The respondent replied that the complaint is unfounded because it did not refuse to advise or represent the complainant. It provided good advice during the period covered by the complaint and supported him in all his actions and remedies. According to the respondent, it fulfilled its duty under the Act, and the complainant presented no evidence to the contrary.
[3] For the following reasons, I find that with respect to events that occurred before July 6, 2019, the complaint was not made within the 90-day time limit prescribed by the Act. I also find that the evidence adduced on the alleged events that occurred after July 6, 2019 (i.e., in the 90 days preceding the complaint), did not support an unfair-representation case.
II.
Background
[4]
Essentially, the complainant accused the respondent of the following failures: (1) taking no action to help him with his two gradual returns to work, which were from September to December 2017 and from May to July 2018; (2) not completing a “Hazardous Occurrence Investigation Report” (LAB 1070 report) in May 2018; (3) and not following up with him or answering his questions. His complaint reads as follows:
[Translation]
...
The UCCO-SACC CSN union took no concrete action when it handled the complaint about the employer (Correctional Service of Canada) not respecting my medical limitations (twice), during two (2) separate gradual returns (RTWs). The first was from September to December 2017. The second was from May to July 2018. In addition is the union’s failure to complete a report (LAB 1070) that I had already initiated after another (new) work accident, two days after the start of the second RTW, in May 2018. Despite all my attempts, the union (UCCO-SACC-CSN) persists and claims that it is still processing my file but refuses to follow up with me and avoids answering my legitimate questions and showing me the actions taken. Several pieces of evidence may be provided, at your request.
...
190(1) The Board must examine and inquire into any complaint made to it that
...
[6]
Section 185 of the Act defines an unfair labour practice as anything prohibited by ss. 186(1) or (2), 187, 188, or 189(1) of the Act. The complainant alleged that s. 187 had been breached. It provides as follows:
[7]
The respondent raised a preliminary objection. It argued that the complaint was inadmissible and that it should be summarily dismissed because it was not made within the time limit set out at s. 190(2) of the Act, which reads as follows:
III. Issue
IV. Chronology of the events, and summary of the facts
[10]
The parties were asked to provide their respective statements of facts. The complainant provided a table with a chronology of 30 key moments, which showed his discussions with the respondent between November 20, 2017, and October 4, 2019, and an overview of their main communications.
A.
Summary of the evidence
[12]
Four testimonies were presented at the hearing. The parties also adduced into evidence several books of documents, including Book of Documents A (20 tabs and 118 pages), containing documents that the parties adduced jointly into evidence; Book of Documents B (78 pages, numbered 1 to 65), containing additional documents that the complainant introduced; and Book of Documents C (42 tabs and 190 pages), containing additional documents that the respondent adduced into evidence.
[13]
The complainant testified on his own behalf at the hearing.
[15]
The respondent also planned to call nine additional witnesses at the hearing. To reduce the hearing’s length, it was asked to provide witness statements in advance. It was expected that at the hearing, the complainant would have the opportunity to cross-examine those who provided a witness statement. However, after hearing the statements, he clarified that he did not wish to cross-examine those individuals. His only wish was to cross-examine Mr. Rousseau, which is why the respondent called that witness to testify in person at the hearing.
[16]
At the hearing, the respondent also informed the Federal Public Sector Labour Relations and Employment Board (“the Board”) that it would not call a witness to testify whom it had originally planned to — a correctional officer. It informed the Board that there was also no need for that witness to make a witness statement.
[17]
The six witness statements that the respondent adduced into evidence, with the complainant’s agreement, were signed by the following people: Maxime Turcotte, Return-to-Work (RTW) Program Delegate, UCCO-SACC-CSN union local at Cowansville Institution; Jonathan Giard, President, Cowansville Institution union local; Alexandra Lussier, Union Advisor in the CSN’s injured-worker defence unit; Anne-Marie Laurendeau, RTW Delegate, UCCO-SACC-CSN union local at Cowansville Institution; Frédérick Lebeau, Correctional Officer, UCCO-SACC-CSN Quebec Regional President; and Mohamed Boussaïd, Union Advisor in the CSN’s injured-worker defence unit. The complainant informed the Board that he did not wish to cross-examine those people.
[18]
Two additional statements (written, signed, and sent to the Board) were not adduced into evidence because the respondent stated that they were no longer necessary. They are the statements of a counsel who is a union advisor for the CSN’s injured-worker defence unit and of a union advisor who, as of the events, was in that unit.
B.
Summary of the testimonies
[19]
The complainant explained that he has worked for the Correctional Service of Canada (CSC) since 2007. In 2009, he was injured while he was a correctional officer at Port-Cartier Institution. He did not complete an accident report or make a claim with the Commission des normes, de l’équité, de la santé et de la sécurité du travail (CNESST) at that time.
[20]
He was injured again in 2016 when he fell down some stairs at home. He underwent surgery in February 2017.
[21]
On September 11, 2017, after an absence of several months, he returned to work. He and the employer agreed to a return-to-work and accommodation plan. The respondent supported him through a representative, Ms. Laurendeau. It was a gradual return to work.
[22]
The complainant explained that beginning in October 2017, the employer failed to respect his functional limitations. On December 20, 2017, he was placed on leave because his physical condition was deteriorating.
[24]
In December 2017, the complainant received his requested medical assessment, which identified the need for a gradual return to work and specified his functional limitations.
[25]
On May 14, 2018, after an absence of several months, the complainant and the employer agreed to a new return-to-work and accommodation plan. The respondent supported him through a representative, Mr. Turcotte. Therefore, the complainant returned to work on May 14, 2018. It was a gradual return to work.
[26]
Two days later, on May 16, 2018, the complainant injured himself by falling down some stairs while racing after an inmate. He went to the healthcare centre and completed an accident report.
[27]
He explained that he took a few days off and that he returned to work on May 19 or 20, 2018. However, again, the work he was assigned was inappropriate for him because of his physical condition. Thus, he was forced to take sick leave on May 23 or 24, 2018.
[28]
On August 4, 2018, the complainant received a medical certificate stating that he was to go on permanent leave. For that reason, and on his initiative, he decided to make a worker’s claim with the CNESST on August 31, 2018, which was received on September 7, 2018. The claim was about the following issue, as he stated on the form: “[translation] Gradual return to work. The employer did not respect the medical certificate (standing for an extended period of 4 hours) exacerbation of my condition.” He explained that he made the claim because the employer failed to accommodate him properly during the months of September to December 2017 when he first returned to work.
[29]
On October 18, 2018, the CNESST decided that his claim about his gradual return to work from September to December 2017 was made outside the six-month time limit set out in the applicable regulations and that the complainant did not submit a reasonable reason for his delay. He was informed that he had a right to have the decision reviewed.
[31]
On October 20, 2018, Claude Guilbault, the complainant’s colleague, sent a long letter to the respondent, which he accused of not serving the complainant well. He also stated that from then on, at the complainant’s request, he would represent the complainant, from whom he had received a mandate for that purpose.
[32]
From that point on, Mr. Guilbault made a series of applications to the respondent on the complainant’s behalf. They both felt that the respondent was not providing sufficient assistance to the complainant and that it was not doing a good job.
[33]
On October 20, 2018, the respondent also informed the complainant that on its own, it was preparing a grievance on his behalf to challenge the fact that his employer had not properly accommodated him. The failure-to-accommodate grievance was filed on October 24, 2018.
[34]
Between October 20, 2018, and November 12, 2018, the complainant and the respondent exchanged several emails. On November 20, 2018, it informed him that a communication had been sent to Sun Life to help him obtain benefits from it.
[35]
Between November 26, 2018, and December 10, 2018, the complainant emailed the respondent several times. In the one dated December 5, 2018, among others, his impatience was evident. On December 6, the respondent updated him on his case.
[37]
On February 12, 2019, Mr. Giard, who then was the UCCO-SACC-CSN local’s president at Cowansville Institution, asked his team to go faster with respect to the complainant’s case. The union advisor who received this request, Mr. Bérubé, contacted Mr. Rousseau to determine the best way to do it. At that time, the complainant was about to begin an administrative review procedure of the CNESST’s decision.
[38]
On May 1, 2019, the CNESST rendered a decision on his request to review the decision in his case of October 18, 2018. It summarized the facts as follows:
[Translation]
...
He gradually returned to work in September 2017. He claims that his employer did not respect the functional limitations that his doctor identified. Apparently, he was in a standing position for a long time.
On July 30, 2018, the doctor diagnosed an L4-L5 disk herniation with L5 radiculopathy and an L5-S1 disk herniation. He pointed out particularly the initial 2009 event. According to the neurosurgeon, the condition has been exacerbated.
On September 6, 2018, the worker made a claim with the [CNESST] for an event that occurred on December 20, 2017.
...
[39]
However, in its decision, the CNESST concluded, “[translation] The worker’s claim for the event that took place on December 20, 2017, was submitted to the [CNESST] more than 8 months after the events that led to his claim.” It stated its decision as follows: “[translation] After reviewing the evidence in the case, the [CNESST] finds that the worker made his claim on September 6, 2018, for an event that occurred on December 20, 2017; thus, he made his claim outside the time limit.” It also noted the following:
[Translation]
...
To explain his lateness, the worker’s representative [Olivier Rousseau] submits that the union takes the steps with the [CNESST], but that was not done. The worker was convinced that the union took the steps.
In the [CNESST’s] view, based on its review, the reason that the worker’s representative provided is not sufficiently reasonable to except the worker from failing to submit his claim within the time limit. In effect, the worker did not demonstrate due diligence in the conduct of his case. And the union’s negligence cannot be considered a reasonable reason.
...
[40]
On May 6, 2019, the complainant again asked for the respondent’s help. It replied that it would handle his CNESST case.
[41]
On May 29, 2019, the complainant made another “[translation] complaint against an employee association” against the respondent, this time with the Tribunal administrative du travail (TAT) du Québec on the grounds that the respondent was negligent, took no action to respect his medical limitations, and failed to make a compensation claim with the CNESST after he left his work on December 20, 2017. He described in the form the harm he suffered because of the respondent as follows: “[translation] outside the CSST’s time limit”.
[42]
On July 4, 2019, through the Service des relations du travail - CSN, the respondent informed the complainant that for it to represent him in his CNESST case, he had to sign a mandate authorizing it to. He did not respond to the invitation.
[43] On September 26, 2019, the complainant asked the respondent’s representatives to contact him in writing within 10 days with all the action taken to assist him. He specifically asked for an update on the game plan (“the game plan”), the steps taken with the CNESST, and the actions taken with respect to the grievance against the CSC.
[44]
On October 3, 2019, the respondent replied.
[45]
On October 4, the complainant asked the respondent to provide a complete copy of his file. It wrote back to him the same day.
[46]
On October 5, 2019, the complainant made his unfair-representation complaint against the respondent. In it, he accused the respondent of not taking “[translation] any concrete action” during his two gradual returns to work, from September to December 2017 and from May to July 2018, and of not completing an accident report (LAB 1070) in May 2018. His complaint also stated, “[translation] Despite my efforts, the union (UCCO-SACC CSN) persists and claims that it is still processing my file but refuses to follow up with me and both avoids answering my legitimate questions and showing me the steps taken.”
[47]
He then stopped responding to the respondent’s communications, which requested his permission to represent him in his application to review the CNESST’s decision. From that point on, he ignored all the respondent’s communications and reiterated that he wanted only to obtain everything in his file that it possessed.
[48]
The complainant explained that he found this period of his life very difficult. He had no salary and felt helpless. He expected that the union local would support him in all his efforts with Sun Life, the CNESST, his grievance, etc. He testified that he was not satisfied with the assistance he received.
[51]
During the complainant’s cross-examination, the respondent’s representative brought to his attention each procedure undertaken to assist him in his gradual returns to work. Together, they reviewed the return-to-work plans and the grievance. The exchanges about his Sun Life and CNESST files were also brought to his attention. The respondent’s representative asked him what specifically he had wanted or wished for from the UCCO-SACC-CSN’s union local. He replied that he was not entirely sure because he did not know the procedures to follow.
[52]
Although it is not mentioned in his complaint, during his cross-examination, the complainant alleged that an investigation and a LAB 1070 report should have been completed in December 2017 after the failure of his first gradual return to work. He then left his job on the ground that his employer had not respected his functional limitations. However, he admitted that he did not complete an accident report on the matter.
[54]
He acknowledged that he also failed to complete an accident report when he left his work on December 20, 2017, on the ground that his employer did not respect his functional limitations. However, he completed one on May 16, 2018, before leaving his work.
[55]
The complainant insisted that at least two properly completed LAB 1070 reports should have been included in his employer file, of which he obtained a copy; namely, a LAB 1070 report that he claimed the respondent should have completed in December 2017 and one that he started in May 2018 but that should have contained more information. In cross-examination, the respondent brought to the complainant’s attention the following excerpt that his representative, Mr. Guilbault, prepared:
I am sending you this because I have not heard anything about my email sent last November 2. I heard from Stéphane Marcotte on November 3, the next day, which informed me no LAB 1070 had been initiated and that there would not be one because it is not a separate event that took place in an institution. I did not reply to his remark, as those concerned can testify. In this respect, I fully agree that this is not a one-time event but rather a series of successive and untimely ones that were contrary not only to the two RTWs initiated but also to Stéphane Ferguson’s medical condition. In the same vein, I think that it is a matter of reporting a practice contrary to the well-being of a CX member with respect to practices that have occurred in institutions. How can the CSST conclude and/or know that this failure to respect the RTW had impacts and consequences for Stéphane Ferguson if nothing is initiated to prove it?
[56]
The complainant confirmed that after reviewing his employer file, he was motivated to make his unfair-representation complaint against the respondent. The reason is that he did not find in the employer’s file all the LAB 1070 reports he had hoped to find, and in his opinion, the 2018 report that he found was incomplete.
[57]
In particular, the complainant explained that when he completed the Hazardous Occurrence Investigation Report on May 16, 2018, he filled out its section 4 (“Description of what happened”). He explained that no one completed section 6 (“Direct causes of hazardous occurrence”). With respect to section 7 (“Corrective measures and the date employer will implement”), the employer entered “N/A” (not applicable; i.e., there was no safety issue to address). Finally, with respect to section 9 (“Work place committee’s or health and safety representative’s comments”), the respondent wrote, “[translation] He injured himself after running after an inmate. The officer injured his knees and shins. A few days later, lower-back pain.” His representative, Mr. Marcotte, signed the report on July 1, 2018.
[58]
Mr. Marcotte, a correctional officer, testified at the hearing. He explained that as of the events, he was an OHS delegate of the UCCO-SACC-CSN union local at Cowansville Institution.
[59]
He explained that the work he had done on the complainant’s file included coordinating the tasks between the different parties involved in the case, building the case, and following up with the complainant about it. He also spoke to the complainant about the Employee Assistance Program.
[60]
Specifically, he explained that he helped the complainant with his requests and claims made with Sun Life and the CNESST. The respondent also filed a grievance about the employer’s failure to respect the complainant’s functional limitations between September and December 2017.
[61]
Mr. Marcotte explained that he had several exchanges with the complainant. He adduced into evidence copies of more than 100 text messages that they exchanged between March 23 and October 28, 2018, at all times of day, including evenings and weekends.
[63]
Mr. Marcotte explained that on March 22, 2018, Sun Life denied the complainant’s request. In the following days, Mr. Marcotte was involved in preparing a game plan to help the complainant in his efforts, who no longer had any income and was trying to address it.
[65]
Thus, on March 24, 2018, Mr. Marcotte emailed the game plan to the complainant. It stated clearly each person’s responsibilities. The roles of each of the six people who were supposed to help him were specified in writing. Mr. Marcotte explained what each respondent representative should accomplish and had accomplished to help the complainant once the plan was implemented.
[66]
Mr. Marcotte stated that for his part, the complainant had to complete the following tasks set out in the game plan: “[translation] Provide all requested documents”, “[translate] Create a chronology of the events since the operation”, “[translation] Check the available evidence on the cause of the injury after an incident that took place at Port Cartier Institution”, and “[translation] Inquire about current medical limitations (possibility of an RTW).” However, Mr. Marcotte stated that over time, the complainant did not provide the requested documents, or that he provided them late and piecemeal, which ultimately complicated things.
[67]
As set out in the plan, in April 2018, Mr. Marcotte continued to coordinate the tasks in the complainant’s different files and to ensure that things developed. For example, with Caroline Langis’s help, he took steps to ensure that the complainant’s Sun Life file moved ahead. He also verified the complainant’s eligibility for potential employment-insurance sickness benefits.
[68]
On April 6, 2018, Mr. Marcotte emailed Mr. Rousseau who, as of the events, was a UCCO-SACC-CSN union advisor assigned to the Quebec Region. The email’s subject was, “[translation] Quick question S Ferguson case”. He informed Mr. Rousseau that Ms. Langis, one of the six people who had been identified to help the complainant with the game plan, told him that she had done everything in her power with Sun Life but that the challenge was to prove that the complainant’s current injury was due to an intervention at Port-Cartier in 2009, since that injury was not documented at that time. Mr. Marcotte also stated, “[translation] We will be able to see the extent to which they did not respect the limitations that the doctor imposed when he returned in September 2017.”
[69]
For his part, Mr. Marcotte took steps to obtain reports, which were called “[translation] roll calls”, and forward them to the complainant. They were intended to describe the positions he had held earlier, to establish links between the tasks to perform and his inability to perform them because of his disability. The work periods covered by what he termed “roll calls” covered the following periods: 1) May 30, 2016, to December 31, 2016; 2) January 1, 2017, to December 31, 2017; 3) January 1, 2018, to December 31, 2018; and 4) August 28, 2017, to December 22, 2017. The data were to be used to support the complainant’s claim that the correctional managers did not respect the medical limitations set out in his medical certificates during his return-to-work plan from September to December 2017.
[71]
Mr. Marcotte brought to my attention the responsibilities associated with the OHS delegate role, which are described in section 9.29 of the UCCO-SACC-CSN’s constitution document. A duty referred to in (g) is “Assisting members in Workers Compensation Appeals and completing the relevant documentation.”
[72]
Mr. Marcotte explained that the respondent’s wish on this matter was, as specified in the game plan, to “[translation] [c]heck the [complainant’s] file since the initial injury resulting from an incident that took place at Port-Cartier Institution [in 2009]”, “[translation] [u]nderstand what happened and make sure that it cannot happen again with another employee in the future”, and “[translation] [c]heck whether this is an OHS case following the RTW in September”. However, to do this, first, the complainant had to provide any documentation that he could find about his 2009 injury. However, he found nothing.
[73]
Mr. Marcotte provided light with respect to the LAB 1070 reports that the complainant sought in his file. He explained that the employer initiated a LAB 1070 report and that it was responsible for sending it to Employment and Social Development Canada (ESDC). Mr. Marcotte explained that an employee who suffers a workplace accident or injury must first go to the healthcare centre so that a nurse may complete a workplace accident report, which is then forwarded to the assistant director, management services (ADMS). A member of the ADMS team then informs the employee’s manager of the accident and asks the manager to complete a LAB 1070 form and return it to the team member. The LAB 1070 is then forwarded to the local Joint Health and Safety Committee so that an investigation may be conducted in which the LAB 1070 is reviewed. Once those steps are completed, the LAB 1070 is sent electronically to ESDC.
[74]
Mr. Marcotte explained the reason behind preparing a LAB 1070 report. The goal is to identify occupational health and safety hazards. For example, if an employee slips and is hurt because a path that the employee must take to work is not cleared of snow, it is an occupational health and safety issue. In particular, he brought to my attention the first note of the instructions in the form. It sets out the type of situation that involves occupational health and safety and sets out the following: “Part II of the Canada Labour Code stipulates in paragraph 125. (1)(c) that every employer has to investigate all hazardous occurrences....”
[75]
Mr. Marcotte also brought to my attention explanations that he received from the ADMS team about the procedure to follow to submit a LAB 1070 report. The excerpt he brought to my attention reads as follows:
[Translation]
...
Last question: Who is responsible for setting up a CSST file - the employer, the employee, or the union? Who sends it to the CSST?
The first step is that the employee consults a doctor, if necessary. If so, the employee is responsible for notifying his or her manager and providing the manager with the medical certificate (form 1936) completed by the doctor. The employee must also complete the worker’s claim (form 1939). As soon as the employer is notified (as soon it receives the medical certificate), it is responsible for returning these documents in a single file and forwarding them to the email address “NC-FWCS-SFIAT-CLAIMS-RECLAMATIONS-GD@HRSDC-RHDCC.GC.CA” and to the regional work-accidents office; i.e., to this address: “Accidents.GEN-QUE@CSC-SCC.GC.CA.”
A workplace-accident report is not necessarily the same as a CNESST file. The employee must complete the documentation and consult with a doctor if he or she considers it appropriate.
[76]
Mr. Marcotte explained that on May 16, 2018, the complainant went to the healthcare centre after incurring knee and shin injuries from chasing an inmate so that a nurse could complete a workplace injury report. The procedure was followed, and Mr. Marcotte completed section 9 of the report and signed it on July 1, 2018.
[78]
In the meantime, the complainant involved Mr. Guilbault in his files, who was the former president of the union local. On October 4, 2018, the complainant emailed both an employer representative and Mr. Marcotte, specifying that “[translation] ... by this email, I would like to add Claude Guilbeault [sic] to my file.”
[79]
On October 20, 2018, Mr. Marcotte received the lengthy accusatory email from Mr. Guilbault, who said that he was mandated to represent the complainant. Mr. Marcotte felt that Mr. Guilbault had attacked and criticized him, despite all the hours he spent helping the complainant between March 23 and October 28, 2018.
[80]
Mr. Marcotte spoke about changes at the union local shortly before then. He explained that the entire previous executive had resigned hastily, which made it necessary to elect a new one. Mr. Guilbault was the former president of the local executive and decided to run for president again but was not re-elected. However, according to Mr. Marcotte, Mr. Guilbault was still involved informally in some files afterwards, including the complainant’s. That hindered the newly elected representatives’ work. As for Mr. Marcotte, he was elected the union local’s OHS delegate by acclamation.
[81]
Mr. Marcotte explained that when the complainant found himself without an income, he called on the respondent to help him secure one because he had none and was vulnerable. Initially, he did not wish to file a grievance to report the situation to the employer. Only later, in September 2018, did he communicate his desire to file a grievance about the employer’s failure to respect his functional limitations between September and December 2017. Before that date, he wanted only to continue his efforts with Sun Life and the CNESST to address his lack of income.
[82]
Mr. Marcotte explained that when the complainant informed him of his wish to file a grievance, the respondent agreed to file one on his behalf to report the situation to the employer. The grievance was filed on October 24, 2018. Mr. Marcotte clarified that he explained to the complainant that the limited period to file a grievance was 25 days. However, in this case, the respondent agreed to argue that although the accommodation difficulties dated to the previous year, the grievance was not late, given the employer’s ongoing failure to accommodate the complainant.
[83]
On November 2, 2018, Mr. Marcotte emailed those concerned to confirm that a grievance had been filed on the complainant’s behalf.
[84]
On November 3, 2018, Mr. Marcotte emailed Mr. Guilbault and Mr. Rousseau. A response to it was entitled, “[translation] Information sharing and request for guidance from the regional union.” Mr. Marcotte replied to Mr. Guilbault as follows:
[Translation]
...
I must tell you that there is no LAB 1070; nor will there be one, as it is impossible to link the leave to a specific incident in a specific place and time. It is a series of bad decisions (not respecting the RTW) that led to the leave, which is why a grievance was filed.
[85]
Mr. Rousseau was also called to testify at the hearing. He is counsel and a union advisor for the UCCO-SACC-CSN in the Quebec Region, which has 11 federal penitentiaries. Mr. Rousseau helps in the most complex cases.
[86]
Mr. Rousseau explained that his role in this case was to advise and provide legal support. He was consulted precisely because of the file’s complexity.
[87]
On March 13, 2018, Mr. Giard (who was the president of the UCCO-SACC-CSN’s Cowansville Institution local) emailed him. The subject was, “[translation] Difficult SunLife case”. Mr. Giard sought his support in the complainant’s case to receive compensation from Sun Life.
[88]
Mr. Rousseau has experience in this field. In the past, he was able to help several members who had problems with Sun Life. He explained that when a member provides him with the necessary medical documents, he can make representations to Sun Life. In this case, the complainant encountered difficulties in his dealings with Sun Life. He had been without an income since November 19, 2017, and Sun Life was about to reassess his file.
[89]
Mr. Rousseau indicated that the respondent was prepared to help the complainant with his Sun Life claim, even though doing so did not fall within his scope of activities.
[90]
Thus, on March 16, Mr. Rousseau asked for power of attorney from the complainant, which would have enabled him to speak to Sun Life’s representatives. He also asked the complainant to provide him the basic information, which included the medical certificates and letters from Sun Life.
[91]
On March 22, 2018, the complainant signed a power of attorney and sent certain documents to Mr. Rousseau. However, Mr. Rousseau noticed that they were insufficient to demonstrate the complainant’s unfitness for duty.
[92]
On the same day, March 22, 2018, the complainant’s Sun Life compensation claim was denied. Mr. Rousseau spoke with the complainant, who informed Mr. Rousseau that he wished to have his 2009 workplace injury recognized. Mr. Rousseau asked him to provide any documentation he could find on this subject and to forward it to him.
[93]
In the game plan to help the complainant that was developed on March 24, 2018, one of the objectives identified was to resolve the Sun Life dispute. According to the plan, Mr. Rousseau was one of the people identified to help, and the complainant was responsible for providing the necessary documents demonstrating his unfitness for duty. Mr. Rousseau reiterated that the problem was that the complainant’s application was related to a 2009 workplace injury that had not been reported. According to the complainant, his back pain in 2017 arose from his 2009 injury.
[94]
Mr. Rousseau clarified that at that time, the complainant did not wish to file a grievance against his employer. Instead, he sought financial assistance.
[95]
On April 6, 2018, Mr. Marcotte emailed Mr. Rousseau. He stated that Ms. Langis, another person identified in the plan, said that she had done everything in her power with Sun Life and that the difficulty was proving that the complainant’s injury arose from an intervention at Port-Cartier that was not properly documented when it occurred.
[96]
On May 25, 2018, the complainant provided Sun Life’s refusal letter to Mr. Rousseau. He explained that he had been unable to secure the magnetic resonance imaging report and that he would receive it only in a few months.
[97]
In May 2018, Mr. Rousseau took several steps with Sun Life to have the complainant’s file recognized. The file’s handling was slowed because the complainant had to obtain the medical documents that Sun Life required and because Sun Life’s processing agent had changed.
[98]
The complainant did not provide Mr. Rousseau with documents about his 2009 accident. He had found none. As for the medical documents necessary to receive Sun Life benefits, he did not provide them to Mr. Rousseau in a timely manner. He was slow to send them to Mr. Rousseau because he had not yet received or forgot to send them.
[99]
In early October 2018, the complainant asked that Mr. Guilbault be added as his representative in his case. So, Mr. Guilbault took parallel steps with Sun Life.
[100]
On Friday, October 20, 2018, Mr. Guilbault sent his lengthy accusatory email to the respondent’s representatives. Mr. Rousseau read it the same evening. Shortly after that, he replied to the complainant that the grievance was being prepared but that the process had been slowed as he was waiting for a summary of the complainant’s facts. He asked whether Mr. Guilbault’s version was accurate. Mr. Rousseau explained that Mr. Guilbault’s reported facts constituted hearsay. Generally, he does not rely on hearsay to prepare a grievance. As for Mr. Guilbault’s representation of the complainant, Mr. Rousseau reminded the complainant that certain tasks are reserved for elected delegates. He stated the following:
[Translation]
...
It is equally necessary to avoid having several representatives defending positions that may be contradictory. Therefore, it is important to know whether Claude is mandated, whether he must act without union assistance, and whether you have any expectations of the union.
...
[102]
On October 28, 2018, Mr. Guilbault emailed Mr. Rousseau, the subject of which was, “[translation] Request for information on Stéphane Ferguson’s end of salary”. Mr. Guilbault stated that he had received a copy of the grievance filed on the complainant’s behalf. He pointed out that it could be several years before the hearing was held.
[103]
On October 30, 2018, Mr. Rousseau emailed Mr. Guilbault in response to the email with the subject, “[translation] Request for information on Stéphane Ferguson’s end of salary”. Mr. Rousseau reiterated that the respondent filed the grievance despite the recourse limitation (the time limit was 25 days, and the accommodation difficulties dated from the year before). He stated that he explained it to the complainant and that the respondent chose to file the grievance to report the situation to the employer. Mr. Rousseau also recalled that he was awaiting documents from the complainant and that the respondent was prepared to help him with his Sun Life claim, although doing so was outside its scope of activities. He also stated that it was willing to request a review of the CNESST’s decision.
[104]
On Friday, November 2, 2018, Mr. Guilbault emailed Mr. Rousseau. The subject was, “[translation] Information sharing and request for guidance from the regional union”. Mr. Marcotte responded to the information request on November 3, 2018. He clarified that there was no LAB 1070 report related to the complainant’s departure from work on December 20, 2017. The complainant sent his reply to Mr. Guilbault and Mr. Rousseau.
[105]
On November 12, 2018, Mr. Guilbault sent a lengthy email to Mr. Lebeau (UCCO-SACC-CSN Quebec Regional President), copying the complainant and Éric Thibault (UCCO-SACC-CSN First National Vice-President). The subject was, “[translation] Request for union position UCCO SACC CSN.” Mr. Guilbault complained that the complainant had not received a reply to his November 2 email addressed to Mr. Rousseau.
[106]
In his email, Mr. Guilbault added that he had been the complainant’s designated representative since last October 30, that the respondent had not been assisting the complainant properly since November 3, 2018, and that since 2017, it had “[translation] [d]one ... nothing to direct and guide him and/or address his concerns and questions and relieve his anxiety”.
[107]
Mr. Rousseau explained that he was still waiting for a chronology of facts that the complainant had to prepare and that the complainant told him that he was working on it. However, Mr. Rousseau found that Mr. Guilbault was striving to “[translation] build a case” against the respondent. Despite everything, Mr. Rousseau continued to assist the complainant.
[108]
On November 14, 2018, the complainant provided Mr. Rousseau with a new document. He stated the following: “[translation] ... I am sending you the [occupational therapy] consultation request and the last medical note from my surgeon to see what you can do on your side with Sunlife.” However, the surgeon’s document did not establish a link with the complainant’s 2009 accident.
[109]
On November 18, 2018, the complainant asked Mr. Rousseau whether he had contacted Sun Life.
[110]
On November 20, 2018, Mr. Rousseau wrote to the complainant to confirm that he had submitted a review request to Sun Life. In addition, Mr. Rousseau informed him that a CSN member could advise him on how to prepare for his CNESST hearing.
[111]
On that point, Mr. Rousseau clarified that when an employee is injured and can no longer work, the employee is responsible for making a worker’s claim with the CNESST. The respondent is not mandated to make such claims. However, the department specializing in disputes before the CSN’s TAT, the injured-worker defence unit, can advise employees preparing for a hearing. The unit may also agree to represent an employee. In this case, the complainant had the burden of explaining why he did not make his claim within the applicable six-month time limit.
[112]
On November 26, 2018, the complainant asked Mr. Rousseau whether he had received a reply from Sun Life. Since its November 20 sending, Mr. Rousseau had not received a response from Sun Life. He thought that he called the complainant to inform that he had not received one.
[114]
Mr. Rousseau found that the complainant and Mr. Guilbault challenged each respondent action beginning on October 20, 2018. However, the respondent did not deny any of the complainant’s requests and assisted him in all his efforts, even when doing so did not fall within its mandate.
[115]
Mr. Rousseau clarified that since his time ended as the local executive’s president, Mr. Guilbault has criticized every action of the local executive at Cowansville Institution. According to Mr. Rousseau, this was a political dispute fueled by Mr. Guilbault, who presented himself as championing the underdog while at the same time strongly criticizing the Cowansville Institution local executive’s every initiative and effort.
[116]
Mr. Rousseau later became aware that on January 4, 2019, the complainant had taken care of providing a medical report to Sun Life. Only on February 26, 2019, did he provide the report to Mr. Rousseau, who found that he was not well equipped to help as the complainant failed to send him the requested documents in a timely manner.
[117]
On February 27, 2019, the complainant forwarded to him documents from Sun Life and his family doctor. The same day, Mr. Rousseau called the complainant. He then informed the complainant that he had left a message for the Sun Life representative.
[118]
On March 1, 2019, the complainant asked him about any new developments in his case.
[119]
On March 6, 2019, the complainant emailed Mr. Rousseau. He was extremely frustrated after a call from the Sun Life representative. Mr. Rousseau said that he understood the frustration. He was extremely frustrated by Sun Life’s lack of support.
[120]
On March 15, 2019, the complainant provided Mr. Rousseau with an additional medical note. Mr. Rousseau faxed it to Sun Life the same day.
[121]
Finally, on April 8, 2019, Mr. Rousseau received a call from a Sun Life representative, who confirmed that the complainant’s compensation claim was accepted. He immediately informed the complainant of this positive development.
[122]
In the end, Mr. Rousseau stated that the complainant never thanked the respondent’s representatives who helped him during this difficult period. Despite all the criticism, the respondent helped the complainant, without protesting.
[123]
Mr. Ouellette is a lawyer. He was also called to testify at the hearing. As of the events, he was a UCCO-SACC-CSN union advisor in the Quebec Region.
[124]
He explained that on September 26, 2019, the complainant asked the respondent’s representatives to inform him in writing, within 10 days, of all the actions taken in his case. Mr. Lebeau forwarded the email to Mr. Ouellette to obtain his support handling the case.
[125]
On October 3, 2019, Mr. Ouellette replied to the complainant and clarified that he was a union advisor for the Quebec Region and that he had been asked to support him in his case. He provided the complainant information about Sun Life (he confirmed that the matter was settled), the CNESST (he confirmed that the file was in order and that it had been transferred to the CSN’s defence unit; the case was waiting for hearing dates), and the grievance (he confirmed that the grievance was at the final level of the grievance process and that it would then be transferred to the Board). Mr. Ouellette confirmed that in the next month, the grievance was referred to the Board within the applicable time limit.
[126]
On October 4, 2019, the complainant emailed him, Mr. Lebeau, and Mr. Thibault, complaining about Mr. Ouellette’s reply to his email. He criticized the local executive for not having a complete file about the LAB 1070 or proof from the respondent that his medical condition resulted from the employer’s failure to respect his limitations. He added that the Sun Life dispute was settled but that it was no thanks to the respondent. He also stated that the department specializing in disputes before the CSN’s TAT, the injured-worker defence unit, had agreed to represent him.
[127]
Mr. Ouellette noted that on October 4, 2019, Mr. Lebeau replied to the complainant and stated that he had forwarded his email to Mr. Ouellette, who received a copy of the message. Mr. Lebeau gave his telephone number to contact him and explained the respondent’s difficulty because of Mr. Guilbault’s interference in his case. Finally, Mr. Lebeau reminded the complainant that the respondent was still there for him but that if he wished, he could waive that representation.
[128]
On October 5, 2019, the complainant made his unfair-representation complaint.
[134]
Again, on November 22, 2019, Mr. Ouellette emailed the complainant, reiterating his request. Despite everything, he did not receive a response.
[135]
Mr. Marcotte brought to my attention the responsibilities associated with the OHS delegate role, which are described in section 9.29 of the UCCO-SACC-CSN constitution document. A duty referred to under (g) is, “Assisting members in Workers Compensation Appeals and completing the relevant documentation.”
[136]
Mr. Ouellette explained that the respondent assists its members in their appeal cases when it receives a representation mandate for a TAT hearing. But no such mandate was received in this case.
[137]
Mr. Ouellette also clarified that the respondent is not responsible for assisting its members with their Sun Life claims, as doing so does not fall within its scope of activities. However, in this case, the complainant received assistance, to make things easier. The responsibilities that fall within the respondent’s scope of activities are working conditions and filing grievances.
C.
Overview of witness statements
[138]
Mr. Turcotte is a correctional officer, and as of the events, he was a UCCO‐SACC‐CSN representative. He helped the complainant with his return-to-work and accommodation plans and is his colleague.
[139]
Specifically, he helped the complainant with his return-to-work plan dated May 14, 2018. In his written testimony, Mr. Turcotte provided this overview of his involvement in the case:
[Translation]
...
I was involved with developing two return-to-work programs for Stéphane and acted in accordance with my mandate [the return-to-work and accommodation plans, as well as the UCCO-SACC-CSN’s constitution and by-laws, were introduced as exhibits]. Stéphane then contacted me. He wanted to return to work. He no longer had any income. Sun Life did not acknowledge him. He had financial difficulties. He had to return to work. He had severe back pain. He is a big guy. His situation was deteriorating. Even if he sat at home, his back hurt. But financially, he truly had to go back to work. The word that comes to me is “hopeless.” He was facing bankruptcy.
He and I prepared ourselves and then went to meet with the employer together during the RTW development meeting. The employer was reticent with respect to our requests. It did not want to set a precedent for light work and did not want to displace other CXs too much and cause internal divisions.
Before the meeting, we talked about his medical certificate. He told me that he did not want to do 12 hours. He even had difficulty enduring 3-hour shifts. And several positions were not possible for him.
Each cell block usually has two CX2s accompanied by one CX1. According to the post order, the CX1 remains in the control post and does not have to do rounds, which allows the CX1 to avoid inmate contact and making rounds that could lead to difficulties. Between rounds, the other two CXs would allow him to move some, take a walk, and so on. So, we arranged for him to be the CX1 in the control post in Cell Block 9.
That did not unify the members. The union had to fight to get it across to the members. Some correctional officers were unhappy that an officer was present but could not respond to an emergency. There are far fewer of us correctional officers than inmates, so it is worrying.
From a union perspective, it was argued with everyone that in any case, we still need someone in the control post, and that the group’s safety would not be endangered. We also made it clear to them that we had to be in solidarity and to put ourselves in Stéphane’s place.
He returned to work in these conditions. Stéphane wanted to work. When we were together, he was happy with my services, and the conditions suited him. I went to see him again after he returned to work. He was happy, and everything looked fine. I would say that he was relieved at being paid again and that he was happy to be back at work. He was satisfied with his conditions.
In addition to accommodating him in terms of the position, we were able to accommodate him in terms of his schedule. Mr. Ferguson normally worked 12-hour schedules, which were too much for him. We managed to secure an 8-hour schedule. The first RTW for which I assisted him started on May 14, 2018.
...
[140]
Mr. Turcotte also clarified in his statement that an incident occurred on May 16, 2018. He described it and what happened next as follows:
[Translation]
...
However, shortly after he returned to work, on May 16, 2018, Stéphane unfortunately did not respect the limitations of his RTW. I was not present. I cannot testify about what happened. One thing is sure — he left his post and ran after an inmate. The goal of his RTW was precisely for him to stay in the control post. I do not know why the incident occurred. You would have to ask him.
After the event, Mr. Ferguson went on leave for a work-related injury for about two weeks. Stéphane Marcotte took care of ensuring that the LAB 1070 was completed.
Before returning to work again, the employer organized another return-to-work plan meeting. Mr. Ferguson contacted the employer directly. He sent his medical certificates to it directly. I went to the RTW and realized that the new medical certificate was much more detailed and restrictive. The employer was represented by Sylvie Gagnon, who suggested a CX 2 position at the visitors’ entrance and in the detention area. That position was higher than Mr. Ferguson’s. Someone else was also following an RTW. Thus, I assisted him well during the second RTW, dated June 1, 2018.
Again, accommodation was required in terms of his schedule. The position at the entrance is set up for 2 adjoining areas, which makes it possible to create better schedules. However, theoretically, 3 officers are assigned to 1 of the sections (entrance and detention), but Stéphane could not meet the established schedules. Therefore, we accommodated his position and schedule so that he could return to work. Normally, these positions are 9-16-9 (a 9‐hour and a 16-hour shift), which makes 34 hours. You then have 2 days OFF. It is not necessarily 40-hour weeks. You sometimes work longer weeks, which are compensated for later.
Again, Stéphane was very happy. We obtained for him an 8-hours-per-day schedule, with 2 days off. Therefore, he worked 5-2 weeks. It gave him a regular and predictable 40 hours, and he avoided working more than 8 hours per day. In addition, it was a promotion, because normally, he is a CX1 and did not enter the CX2 competition.
After signing this RTW, I did not bump into him directly, and he did not contact me. The Deputy Warden (Marie Claudine Béland) later came to see me. She told me that Stéphane had gone back on leave. Stéphane did not advise me of anything. He did not give me any papers afterwards.
...
[141]
With respect to the complainant’s claim that the union failed to complete the LAB 1070 report in May 2018, Mr. Turcotte replied as follows in his statement: “[translation] I do not see what is missing in this LAB 1070. The LAB 1070 is properly completed. The employer initiated the report. On the union side, we can see that the report has been completed.”
[Translation]
...
... The LAB 1070 has been sent to the CNESST. When you are injured, you give your documents to the employer, which sends the papers to the CNESST. The CNESST contacts you. You are supposed to have access to all the files about you at all stages. I do not see how they could have become aware of the reasons for their complaint in October 2019, and I do not see what it could disprove about my involvement. I was there for two RTWs, I supported Stéphane, and I would have been available had he informed me of anything that would not have complied with his RTWs. I was never informed of any irregularities.
...
[143]
In his statement, Mr. Turcotte also explained that the complainant did not ask him to exercise recourse against the employer and that the complainant chose to be represented by his friend, Mr. Guilbault. The following is an excerpt from the statement:
[Translation]
...
... he never contacted me directly for my help. In the two RTW cases, the employer made me aware of the problem. For the first RTW, we met before sitting down with the employer, but not in the second case. Everything always looked right, and then, I learned much later through the employer that something was wrong. In the two situations, it happened the same way. I never hesitated to help him. I would have been happy to help him even more. I wanted to help him. Had he asked me to support him otherwise, I would have done it or referred him to the right person.
The employee is also not obliged to engage the union. At one point, Stéphane chose to be represented by Claude Guilbault. Claude has been involved in his case for quite some time. Personally, I respected his choice. My career has been done under three different presidents. Francine Boudreau, Nancy Ouellette, then Jonathan Giard. Between Nancy and Jonathan’s arrival, Claude resigned from his seat and was not re-elected. I was not a representative during Claude’s term. At one point, I was informed that Stéphane wanted to go through Claude, even though he was no longer in the union. I respected his choice, as in any other situation of a member preferring someone else’s help. For my part, my last term ended around March 2021. I decided not to run again. Otherwise, I have always maintained a professional and cordial relationship with all my colleagues and with Stéphane as well. I must admit that I was surprised by the turn of events.
I have always enjoyed defending my colleagues to assert rights and to make sure that I defend us against the employer, which often likes to turn the covers to its advantage and interpret a black-and-white text its way. I thought that it was important to prevent our conditions from deteriorating, but over the years, we ended up investing much personal time and effort. It sometimes takes a heavy toll on one’s personal life. Given that an officer’s job is not particularly happy, bringing your colleagues’ problems home with you weighs you down. I finished my last term, then I decided to put my priorities elsewhere.
...
[Translation]
...
Then [in 2016], problems arose within Cowansville’s local executive, which required Regional to intervene; that is, UCCO‐SACC‐CSN’s representation at the province-of-Quebec level. Claude Guilbault then resigned from his position. There were elections between Claude Guilbault, Dany Duval, and me. I won the elections and thus became the president of the UCCO-SACC-CSN local at Cowansville from December 2016 (or early 2017) to March 2021. The dates may not be accurate, but that is pretty much it.
...
[146]
In his statement, Mr. Giard explained that his role as the president was to “[translation]... represent the Cowansville members before management and the Region”. It also involved communicating with regional elected officials and CSN representatives in more complex cases.
[147]
As for the complainant’s case, he said that he referred to Mr. Rousseau, in his role as a union advisor, and Mr. Lebeau, in his role as the Quebec Regional president, to better support him. In his statement, he explained that when the complainant wrote to him, he forwarded his emails to the region “[translation] ... because his case mattered to us, and I wanted him to receive the best service”.
[148]
Mr. Giard also intervened as follows to help the complainant:
[Translation]
...
... Stéphane came to see me once in the union office to tell me that he found his return difficult and that the managers in place did not respect his RTW (the one for July 2018). I told him that we would intervene and do everything in our power to ensure that his RTW was respected but that it was also his duty not to agree to carry out tasks contrary to his RTW. He had to come to us as soon as the manager did not follow his RTW, to avoid injuring himself. We cannot know what is going on if he tells us nothing, and the employer, not us, decides the tasks that the officers carry out. When he came to report that his RTW was not being respected, I went to the manager in charge to inform the manager that day of Stéphane’s limitations. I even temporarily took over for him in his work-supervisor position, to give him a break. I was not his RTW delegate, and Stéphane did not provide me with the document, but I intervened for him anyway.
In addition, the few times he came to see me, he told me what Claude Guilbault had told him. Claude Guilbault served as the local president for a half term, but he has always continued to defend members’ cases, even though he resigned and was not re-elected. I told Stéphane to seek advice from us and that if necessary, I would seek help from the Region. He would leave the office and immediately go to Claude Guilbault every time.
...
[149]
With respect to the LAB 1070 report, this witness stated the following:
[Translation]
...
... This is a hazardous occurrence investigation report. The federal government uses it to report a situation in which an employee is injured, whether it is a minor or major injury. The OHS union representative’s role is to review the situation and to rely on his or her observations to ensure that the report is in compliance.
...
[Translation]
...
... This statement is false. You have the document adduced into evidence signed by our OHS representative on June 1, 2018, Stéphane Marcotte. I do not see the omission in question. The union’s section is complete. As can be seen in the instructions for a LAB 1070, we completed our section, and the employer completes the rest. In any event, even had there been an omission in the LAB 1070, I do not see what that would change in terms of Stéphane’s disability situation. The report is completed after a workplace injury occurs. After the injury, the worker goes to the healthcare centre and then goes to the worker’s doctor or to Emergency, if necessary. Afterwards, all CNESST papers, including the worker’s statement that the employee must complete, come into play.
...
[151]
Mr. Giard also provided the following clarification about the situation:
[Translation]
...
... At no time was Stéphane denied services. The case required us to spend significant time outside working hours on different emails, messages, plans, and telephone meetings so that our CSN advisor would prioritize his case. We worked hard on this case. I also bumped into him in everyday life, and we discussed the case during my personal time. But from what I have seen, since the beginning of the case, Stéphane was in constant contact with the previous executive, as he came to see me after consulting Claude. Emails show that Claude Guilbault was involved in Stéphane’s case, but he also made many other interventions with members. It was as if there was a constant attempt to find fault with us.
...
... It is difficult to be accused of bad faith or discrimination given that we used our personal time to help. In the end, I want to say that I am a correctional officer, not a lawyer or a workplace injury specialist. I carried out my union duty by doing everything I could and by seeking all help available to me.
...
[152]
Mr. Lebeau is a correctional officer and the UCCO‐SACC‐CSN’s Quebec regional president. He also provided a witness statement in which he noted that he is responsible for 11 penitentiaries in Quebec. On this case, he stated the following:
[Translation]
...
... In this case, I made sure that this file was taken care of properly at the local level. It is a complex case, and we had very limited access to Mr. Ferguson. I made sure that our local and our union advisor assigned to the Quebec Region would follow up closely, given Mr. Ferguson’s precarious financial situation.
...
[153]
Mr. Lebeau described the issue in this case as follows:
[Translation]
...
... Mr. Ferguson would have had to accept our interventions. He could have surrounded himself with very dedicated, competent, and well-qualified people.
Mr. Ferguson’s case was always on the list of the Cowansville local’s priorities, and as soon as the region was informed of intervention opportunities, we were there. Except that every time Mr. Ferguson or Claude Guilbault (who was his “representative”) was supposed to follow up with us, they came to us with incomplete documents, or we did not receive them, but we suddenly had a complaint that we were doing nothing. As far as I know, Mr. Ferguson could have been more actively involved with the union local and earlier, according to his deadlines.
It must be said that several levels represented Mr. Ferguson. Claude Guilbault was the president. In my term, I met with his executive with two other members of the Region, to support him. However, it appeared that a re-election would help secure his support, but it did not work, and his term ended. Despite that, he continued being involved, including in Mr. Ferguson’s case. Personally, I just want to find solutions for members, but in Mr. Ferguson’s case, I found it difficult to find out how to satisfy them; we did not know who was being asked to provide what service, and information or documentation was not making it to the union. It was difficult to know how to intervene, while Claude Guilbault was the “representative”, to then be told that we were doing nothing or that we were acting discriminatorily.
...
[154]
He also noted that in their organization, a return-to-work plan is managed locally, since that level can intervene and knows the workplace. He provided these further details on the matter:
[Translation]
...
[Question:] Essentially, the complainant accuses the union of the following breaches: No action taken during two gradual returns, i.e., from September to December 2017 and from May to July 2018; then, failing to complete the LAB 1070 report in May 2018. Comments, reply, defence?
Reply: more specific factors should be validated with our advisor at that time and the local. However, I can testify to the period in which the Region was involved. As for the Region, we had trouble obtaining documents and Mr. Ferguson’s trust. Before appearing at a hearing before the TAT or grievance adjudication, it is necessary to wait for a court date and to have a mandate, but Claude Guilbault has been acting as his representative since 2018. We wanted to be able to defend Mr. Ferguson faster, but we cannot set the hearing dates ourselves. Today, we are in 190, before going to adjudication, even though we were ready to defend him.
[Translation]
...
Reply: That is impossible in this case. Mr. Ferguson’s case has always been handled carefully, and the UCCO-SACC-CSN has supported it at all service levels.
Except that Mr. Ferguson made a complaint nonetheless and indicated the same complaints from well before October 2019. Since the beginning of our email exchanges, he has accused us of the same things, which are that we would do nothing (see the emails that were sent).
...
[157]
Ms. Lussier is a CSN union advisor, specifically in its Health, Safety, and Environmental Services. She stated the following:
[Translation]
...
... I did not intervene directly in the case as Marie-Pier Dupuis-Langis handled it. After checking with my collaborator at that time, our notes on file indicate that three attempts were made to obtain a representation mandate from the worker, without his cooperation. Certainly, we would have immediately taken up his defence had we received the necessary mandate.
...
[158]
Ms. Laurendeau is a correctional officer, and as of the events, she was involved with members who had suffered workplace injuries. She summarized her discussions with the complainant as follows:
[Translation]
...
Reply: We talked several times; for example, we spoke on the telephone and often in person. We also communicated in writing, but I do not have access to the institution.
The exchanges were quite frequent, but when Stéphane came to see me, it was at the last minute. He came to me with a situation, gave me a bit of information, and then I did not hear of it again. He even often came to see me after the fact. Otherwise, I had a good relationship with him; it was respectful and problem free. We had exchanges that I thought were nice. I am surprised that it turned out this way. I was always available when he came to see me, and I would have continued to help him until I started to telework, had he so wished.
The problem is also that our resources were limited. His injury began at Port-Cartier. Personally, I never received the documents. I requested some from him, but he did not provide us with the documentation, and then he came back later and said that we were doing nothing. But when I received the documents, I always processed them. Otherwise, his case was also handled by Cécile Gendron, an administrative officer. I did not receive a complaint from Stéphane on this subject.
...
[159]
She also summarized her involvement in the complainant’s case as follows:
[Translation]
...
... I met with him to tell him to come see us. I asked him to bring us his files and evidence, at all times. For example, when he went to perform site supervision, he did not come see us right away. I heard about his story only after he returned to work — after he performed site monitoring and went back on disability.
However, we explain it every time. When we complete their papers, we tell all our members that if our bosses do not respect the limitations, they should come to the union right away. Then we can intervene.
The fact remains that I am surprised by the turn of events. I thought that I had a very good relationship with him. I was always available, and it would have been my pleasure to continue, to intervene at the appropriate time, and to file grievances. I was never asked to.
[160]
As for Mr. Boussaïd, he has been a union advisor since March 2019. He described his duties in his statement as follows: “[translation]... analyze the workplace injury cases in dispute, represent workers at the CNESST and the TAT, and plead contested cases before the TAT.”
[161]
He was involved in the case between May 6, 2019, and May 28, 2019. He described his intervention as follows:
[Translation]
...
As part of my responsibilities at that time, I helped him analyze his file and contest the case at the TAT despite it being outside the time limit. I know that he then shopped for some services, but to my knowledge, all the advisors consulted would have been prepared to take up his case, although he is at fault. Our unit’s core principle is that we understand people’s distress and want to help them.
As we interacted, he also wanted to be assisted by Claude Guilbault, who had been an elected member of the union local and thus had been his representative for some time. Since there seemed to be a conflict with the new executive of the union local, I decided to help them more in their different cases, although that was not my role, rather than refer Mr. Ferguson to the union local at Cowansville.
Since Mr. Ferguson also seemed to trust Mr. Guilbault, he wanted Mr. Guilbault to continue to represent him at the TAT. I explained to him at that time that one case cannot have two counsel.
He seemed satisfied with the analysis of his file at the end of the May 22, 2019, meeting. I left him my contact information and encouraged him to contact me in case other questions arose related to his CNESST file. As for the tension they showed me against the Cowansville union local (which came up repeatedly in the meeting), I put them in direct contact with the UCCO-SACC-CSN’s Quebec Region union advisor (François Ouellette) to allow them to bypass and avoid interactions with the local. I also spoke with François to make sure that the case was being handled properly and as quickly as possible. (See the May 28 email between François Ouellette and me.) This approach also seemed appreciated.
[162]
Mr. Boussaïd was asked the following question: “[translation] Did the complainant ask you to exercise recourse against the employer in this or other cases? Are there any other grievances, disputes, or recourses with respect to the complainant?” In response, he submitted the following: “[translation] No, but quite honestly, to my knowledge, we were ready to take on his case in all respects. There always seemed to be some reluctance about what we could do.”
[163]
In conclusion, Mr. Boussaïd provided the following clarification:
[Translation]
...
I understood that the makeup of Mr. Ferguson’s case was not easy and that it was past the deadline to be brought before the CNESST. There was also confusion about it, as the service we offer begins with the review before the TAT. I explained this to them: CSN unions are not involved before this stage. The worker takes the first steps. The worker may receive support, but the union does not provide such a service. In my view, the entire dispute is the result of a misunderstanding of the technicality of the case. Different levels of union representation are blamed for situations they do not control.
...
V.
The parties’ arguments
[164]
On November 1, 2019, the respondent made a motion to summary dismiss the complaint because of a failure to respect the time limits set out in s. 190(2) of the Act. The Act states that a complaint under s. 190(1) must be made within 90 days of the date on which the complainant knew, or should have known, of the facts that gave rise to it.
[166]
On November 26, 2019, the mediation was inconclusive.
[167]
On December 13, 2019, the Board held a conference call with the parties and asked the complainant to indicate the events that took place within the 90 days. He was asked to provide this information in writing, according to a set schedule.
[170]
At a case management conference held on February 18, 2022, the respondent reiterated its objection on the grounds that the alleged events were outside the 90-day time limit. For example, in its view, the complainant cannot claim that certain “[translation] suspicions” or evidence of wrongdoing, such as, “[translation] nothing was done”, were discovered within the 90 days.
[171]
On March 1 and 3, 2022, the parties made written submissions to the Board supporting their respective positions, which I reviewed.
[172]
In summary, the complainant argued that he was in constant communication with the respondent (the union) and that for that reason, his complaint should be considered timely. Throughout that time, the union was uncooperative. He was deprived of support for, follow up on, and defence of his interests, to which he was entitled. The union failed to ensure that his return-to-work plans respected his medical limitations or that the employer respected them. It never informed him of his rights with the CNESST or of the need to make a claim on time. It never cooperated and thus never adequately advised him. The complainant argued that despite the union’s assertions, no serious work was undertaken on his behalf.
[173]
In summary, the respondent submitted that the parts of the complaint relating to the allegations of its inaction with respect to the 2017 and 2018 return-to-work plans are out of time. At the latest, the complainant was or should reasonably have been aware of the circumstances of the return-to-work plans on October 20, 2018. The complaint was made on October 5, 2019.
[174]
It added that at s. 190(2), the Act states that a complaint must be made within 90 days after the complainant knew, or should reasonably have known, of the circumstances. The strict interpretation of the time limit is supported by the Board’s decisions, in particular Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78. The documentary and oral evidence clearly demonstrate the complainant’s knowledge of the events and his regular contacts with the respondent union throughout 2017 and 2018. A period of well over 90 days elapsed between the events and the October 5, 2019, complaint. As the Act clearly states, the Board has no jurisdiction over those parts of the complaint.
[175]
It also argued that with respect to the complainant’s concern about the insufficient level of support that he apparently received in his efforts with Sun Life and the CNESST, the respondent has no duty to represent a member’s interests with either one. No such obligation is stated. It referred me to Millar v. Public Service Alliance of Canada, 2021 FPSLREB 68, and Abeysuriya v. Professional Institute of the Public Service of Canada, 2015 PSLREB 26, because those decisions specify that the obligation to a member does not go beyond that described in the collective agreement, the UCCO-SACC-CSN’s constitution, and the Act. The fact alone that the respondent voluntarily helped the complainant with Sun Life or the CNESST did not create a new obligation toward him within the meaning of the Act.
[176]
The respondent denied any form of discrimination, arbitrary decision, bad faith, or unfair practice against the complainant. It argued that the evidence does not support a finding that it acted in bad faith or arbitrarily when it carried out its duty for him. Its actions were thoughtful and reasonable. There is no evidence to support his assertions.
VI.
Reasons
[178]
I note that the Board has often reiterated the binding nature of s. 190(2) of the Act. It follows that the Board does not have the discretion to extend that time limit. It has only the jurisdiction to determine the date on which the 90-day time limit began, “... or in other words, the date on which the complainant knew, or ought to have known, of the action or circumstances giving rise to her complaint, which is purely a question of fact” (see Mohid v. Brossard, 2012 PSLRB 36 at para. 36).
[179]
The Board received the complaint on October 5, 2019. According to s. 190(2) of the Act, this means that it must relate to actions or circumstances that the complainant knew or ought to have known of within the preceding 90 days or, in this case, as of July 6, 2019. The actions or circumstances attributable to the respondent that occurred before that date, and of which the complainant was aware, cannot be the subject of this complaint, as they are out of time (see Ennis v. Meunier-McKay and Canada Employment and Immigration Union, 2012 PSLRB 30 at paras. 29 and 30, and Perron v. Customs and Immigration Union, 2013 PSLRB 13 at para. 23).
[180]
Thus, it is necessary first to determine when the complainant knew or ought to have known of the circumstances that led to his complaint. Then, it is necessary to determine whether he made his complaint within 90 days of that date. These are factual issues.
[182]
I disagree. The Act requires that an unfair-representation complaint be made within 90 days of a particular event. I note that a few times, a particular event occurred within the 90-day period covered by the complaint, and that related incidents, which did not take place within the 90 days, also occurred. However, the related incidents cannot be the subject of the complaint. They will provide context only to the parts it covers. In other words, they will not be considered particular events that extend the scope of the complaint to a time longer than the 90-day period.
[184]
In this case, I note that two events occurred between July 6 and October 5, 2019. They are two emails that the complainant sent to the respondent, the first on September 26, 2019, and the second on October 4, 2019.
[185]
As a reminder, on September 26, 2019, the complainant demanded that the respondent submit to him in writing within 10 days all actions taken to help him. On October 3, 2019, the respondent replied. It sent him the information he requested and an update on his Sun Life file, his CNESST file, and his grievance. On October 4, he wrote again to the respondent, requesting a full copy of his file. Among other things, he felt that the LAB 1070 report that he had received was incomplete. Since the respondent felt that it had already provided him with a full copy of his file, Mr. Lebeau replied that same day, by giving him his telephone number so that he could call him. The complainant instead chose to make his unfair-representation complaint on October 5, 2019.
[186]
I find that the two emails that he sent to the respondent on September 26 and October 4, 2019, are particular events took place during the period covered by the complaint. However, I find that the two particular events do not reveal a situation of unfair representation or that the respondent breached s. 187 of the Act.
[187]
In other words, the respondent’s responses do not support an unfair-representation case but rather show, in my view, a greater maturity for the respondent, which persisted in its efforts to help the complainant despite all the criticism he levelled against it. In fact, the evidence reveals that the parties exchanged a large number of communications during that time.
[188]
In addition, it has been clearly established that considerable leeway is granted to bargaining agents in terms of representation. As noted as follows in Nkwazi v. Professional Institute of the Public Service of Canada, 2015 PSLREB 93 at para. 34:
[34] Since Gagnon, the PSLREB and other labour boards have rendered many decisions on the duty of fair representation. The threshold for establishing a breach of this duty is high and complaints are rarely substantiated. As stated as follows in Manella v. Treasury Board of Canada Secretariat, 2010 PSLRB 128, at para 38:
[38] The cited cases are consistent with the general theme in the duty-of-fair-representation jurisprudence that bargaining agents should be accorded substantial latitude in their representational decisions. The bar for establishing arbitrary conduct — or discriminatory or bad faith conduct — is purposely set quite high....
[190]
With respect to events from before July 6, 2019, I have already found that the complaint was not made within the 90-day time limit prescribed by the Act. In these circumstances, I need not consider whether they reveal an unfair representation. However, I want to make it clear that even were I authorized to, I would find that they do not support a case of unfair representation. The reasons follow.
[192]
In my view, the complainant reported no serious wrongdoings in his complaint. He baselessly claimed that the respondent did not take “[translation] any concrete action” during his two gradual returns to work. However, this simple assertion is not supported by the evidence. On the contrary, the evidence reveals a significant number of actions taken to help him in his two returns to work.
[193]
In particular, the first return-to-work and accommodation plan that was agreed to on September 7, 2017, involved the complainant, the union representative who accompanied him (Ms. Laurendeau), and the employer. The signatories were the complainant, Ms. Laurendeau, the delegated manager, and the Human Resources delegate.
[194]
The second return-to-work and accommodation plan, which was agreed to on May 14, 2018, involved the complainant, the union representative who accompanied him (Mr. Turcotte), and the employer. The signatories were the complainant, Mr. Turcotte, the delegated manager, and the Human Resources delegate.
[195]
The third return-to-work and accommodation plan, which was agreed to on June 1, 2018, involved the complainant, the union representative who accompanied him (Mr. Turcotte), and the employer. The signatories were the complainant, Mr. Turcotte, the delegated manager, and the Human Resources delegate.
[196]
Although no action was taken to prepare the complainant’s returns to work, Ms. Laurendeau and Mr. Marcotte apparently did not sign the plans. Mr. Marcotte also explained that he had checked with the complainant as to whether the agreement respected his functional limitations. He also explained that when a member is not comfortable with the content of a plan, there may be no agreement. In this case, the complainant chose to sign the plans.
[197]
Similarly, the respondent’s witnesses explained that when a manager assigns tasks that are inconsistent with what was agreed to in the plan, the complainant must inform his or her union representative as soon as possible. However, in this case, only much later did the complainant bring to the respondent’s attention that tasks that he had to perform were incompatible with what had been agreed to in the plan.
[198]
Second, the complainant accused the respondent of failing to complete an accident report (LAB 1070) in May 2018. That simple assertion is not supported by the evidence. On the contrary, the evidence shows that the report exists. The respondent completed the section for which it was responsible and signed the report. Therefore, it fulfilled its duty. In addition, I note that the evidence submitted on this point indicates that when an employee is injured and can no longer work, the employee is responsible for making a worker’s claim with the CNESST. The respondent is not mandated to make such claims on the employee’s behalf.
[199]
Third, in his complaint, the complainant alleged that the respondent refused to follow up with him and that it avoided both answering his questions and showing him the actions it had taken. He submitted several emails either sent to the respondent or received from it that in my view, do not support his allegation in any way. Rather, they reveal that the respondent provided representation, advice, and answers to his questions. It also agreed to file a grievance on his behalf against the employer.
[200]
In sum, if I had the jurisdiction to hear the complaint about events from before July 6, 2019, I would find that the complainant did not establish that the respondent breached s. 187 of the Act. He failed to demonstrate that the respondent’s actions described in this decision illustrate conduct that was arbitrary, discriminatory, or in bad faith. Instead, the evidence shows that through this complaint, he and his representative, Mr. Guilbault, sought to undermine the credibility of the union local’s executive at Cowansville Institution. The evidence reveals that the respondent showed maturity by continuing to represent the complainant while he criticized each of its actions. In my opinion, it was able to stay the course despite the difficult working environment.
[201]
In the circumstances, the complainant’s allegations do not support a case of unfair representation. I find that it was not demonstrated that the respondent breached s. 187 of the Act.
[202] For all the above reasons, the Board makes the following order:
(The Order appears on the next page)
VII.
Order
[203]
The complaint is dismissed.
FPSLREB Translation
a panel of the Federal Public Sector
Labour Relations and Employment Board