FPSLREB Decisions
Decision Information
The complainant alleged that his former bargaining agent failed its duty of fair representation – the respondent asked the Board to summarily dismiss the complaint for having been made past the 90-day time limit under the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2) – the Board held that the 90-day time limit is mandatory and that it cannot be extended – the Board found that in October 2021, the bargaining agent clearly signified to the complainant that it would not represent him – the Board found that the subsequent refusal of the respondent’s Retired Members Guild to help the complainant did not extend the filing deadline because it confirmed the respondent’s decision – the Board determined that the complainant’s health did not preclude him from making a complaint before March 2022 – consequently, the Board allowed the motion and found that the complaint was out of time – the Board also issued a confidentiality order sealing the complainant’s medical information.
Motion allowed. Complaint dismissed.
Decision Content
Date: 20220810
File: 561-02-44419
Citation: 2022 FPSLREB 68
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Labour Relations Act
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Between
Zaheeruddin Choudhry
Complainant
and
Professional Institute of the Public Service of Canada
Indexed as
Choudhry v. Professional Institute of the Public Service of Canada
Before: Marie-Claire Perrault, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Himself
For the Respondent: Martin Ranger, counsel
Decided on the basis of written submissions,
filed May 11, 26, and 27, 2022.
REASONS FOR DECISION
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I.
Complaint before the Board
[1] On March 24, 2022, Zaheeruddin Choudhry (“the complainant”) made a complaint against his former bargaining agent, the Professional Institute of the Public Service of Canada (“the respondent”). The complainant alleges that the respondent failed its duty of fair representation, contrary to s. 187 of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”), which reads as follows:
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[2] The complainant states that the respondent mistreated him. He was employed by the Department of National Defence (DND) as a senior combat systems engineer at Canadian Forces Base Esquimalt in Victoria, British Columbia, starting in 2009. In October 2013, he was certified as having a permanent disability and has not worked since. He retired on medical grounds on January 16, 2016.
[3] The complainant submits that the respondent was complicit with DND in creating a workplace so toxic that he was no longer fit to work. He states that he was persecuted when in 2009 he tried to denounce what he considered the gross mismanagement of a submarine program. He further submits that the respondent did nothing to protect him. He alleges that despite what he went through, the respondent apparently refused to help him file grievances, and DND refused to accept his grievances.
[4] The complainant submits that his state of mental health prevented him from taking any action until mid-2018, when he approached the respondent for help. Although he received some sympathetic responses, in the end, no one helped him. In a letter dated October 22, 2021, the respondent’s general counsel wrote to the complainant, indicating that the respondent did not believe that it could help him in any way, given the fact that his employment with DND had ended several years before. The letter stated very clearly that the respondent would not offer him any support with respect to his employment situation.
[5] In November 2021, he also approached the respondent’s Retired Members Guild (“the Guild”) for help. The Guild also refused to help him. The complainant states that the Guild’s final refusal to help him occurred on December 30, 2021.
II.
Motion for summary dismissal
[6] On May 11, 2022, the respondent asked that the complaint be dismissed summarily, as it is out of time.
[7] According to the respondent, the complainant, as he states, never contacted it until over two years after his retirement. From the complaint, it is obvious that he was well aware of what he alleges was the failure to represent him long before then, certainly well over 90 days before he made his complaint with the Board.
[8] The respondent stated that the Board has no latitude to extend deadlines for complaints (see Myles v. Professional Institute of the Public Service of Canada, 2017 FPSLREB 31 at para. 42).
III.
The complainant’s reply
[9] The complainant submits that in its response, the respondent has completely neglected dealing with his complaint. He argues that his state of mental health was such that he could not pursue any complaint against the respondent.
[10] He contacted the respondent in September 2018, but again, it refused him service. The timeliness issue was not raised at that time or in the exchanges that followed.
[11] The complainant also raises the respondent’s discipline by-laws, which state that members must exhaust internal avenues before resorting to proceedings before an outside body.
[12] After a final refusal from the Guild to help him, on December 30, 2021, the complainant had no choice but to make a complaint with the Board against the respondent. The complaint was made on March 24, 2022, within the 90-day time frame.
[13] The complainant also included a medical certificate, dated November 3, 2021, stating that for three to five months, he would be unfit to participate in any legal proceedings, given his medical condition. Another medical certificate indicated that from 2013 to 2018, the complainant suffered major health problems.
IV.
Reasons
A.
Confidentiality Order
[14] In his complaint, and again in his March 26, 2022, submissions in response to the respondent’s motion to dismiss, the complainant asked that his medical information be kept confidential.
[15] Attached to the complaint were various medical documents that have not been kept on file by the Board, as it was not the appropriate time to provide those documents since they were considered to be of an evidentiary nature.
[16] In the March 26, 2022, submissions, the complainant attached what he termed “exhibits”. Since there was no hearing, they cannot be considered exhibits. However, they do constitute supporting documentation for the complainant’s submissions and will remain on file.
[17] Included in these documents are “Exhibit A” and “Exhibit N”, both medical certificates relating to the complainant’s state of health.
[18] The Board subscribes to the open-court principle. However, in the case of sensitive medical information, the Board will grant a sealing order if it believes public disclosure would cause serious harm to the individual. As stated in Ross v. Public Service Alliance of Canada, 2017 FPSLREB 13:
8 In accordance with the open court principle and following the “Dagenais/Mentuck” test (see Dagenais v. Canadian Broadcasting Corp., [1994] 3 S.C.R. 835, and R. v. Mentuck, 2001 SCC 76), the sealing of documents will be ordered only when disclosing them would cause harm that would significantly outweigh the benefits of their full disclosure (see Pajic v. Statistical Survey Operations, 2012 PSLRB 70). The Supreme Court of Canada reformulated the Dagenais/Mentuck test in the following terms in Sierra Club of Canada v. Canada (Minister of Finance), 2002 SCC 41:
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A confidentiality order ... should only be granted when:
(a) such an order is necessary in order to prevent a serious risk to an important interest, including a commercial interest, in the context of litigation because reasonably alternative measures will not prevent the risk; and
(b) the salutary effects of the confidentiality order, including the effects on the right of civil litigants to a fair trial, outweigh its deleterious effects, including the effects on the right to free expression, which in this context includes the public interest in open and accessible court proceedings.
...
9 In that case, the Supreme Court adopted the stance that a confidentiality order may be necessary to protect the parties’ interests. The confidentiality order ensures that documents will be disclosed to the other party and to the decision maker, with the security that they will not be publicized at large. Without that guarantee, they might not be disclosed at all, thus hampering the judicial process.
10 At the same time, the open court principle must be kept in mind. For that reason, if a confidentiality order is made, its breadth should be kept to a minimum, enough to preserve the interests of a party without preventing the public from understanding what is being decided. The Supreme Court emphasized that the risk posed by public disclosure must be serious.
[19] I believe it is in the best interest of the complainant to seal his medical information, as it prevents a serious risk to an important interest. The order does not affect the intelligibility of the present decision, and thus its salutary effects outweigh any deleterious effect.
B.
Analysis
[20] Given the respondent’s motion, the issue I must determine is whether the complaint was made within the 90-day time limit set out in s.190(2) of the Act. As such, I will not address the merits of the complaint in this decision.
[21] Pursuant to s. 22 of the Federal Public Sector Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365), the Board may decide any matter before it on the basis of written submissions.
[22] The respondent requested that the Board summarily dismiss the complaint because it is out of time.
[23] Unfair-labour-practice complaints (such as those made under s. 187 of the Act) are made with the Board under s. 190 of the Act. Section 190(2) specifies as follows the time in which a complaint may be made:
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[24] Subsections (3) and (4) are not applicable in this case because they deal with complaints related to discipline exercised by the bargaining agent against members of a bargaining unit it represents.
[25] It is well established that the wording of s. 190(2) of the Act is mandatory. It states that a complaint “... must be made to the Board not later than 90 days after the complainant knew, or in the Board’s opinion ought to have known, of the actions or circumstances giving rise to the complaint” [emphasis added]. No extension of time can be granted for complaints.
[26] It may be useful to restate here the duty of fair representation that is set out in the Act:
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[27] The complainant states that since the ultimate refusal to help him came from the Guild on December 30, 2021, his complaint is timely.
[28] In its October 22, 2021, letter, the respondent clearly signified to the complainant that it would not be representing him because he had not been a member of the bargaining unit for a number of years. Any recourse against the respondent would have had to be taken within 90 days of that letter. The complainant knew then “ ... of the actions or circumstances giving rise to his complaint”.
[29] Despite the medical certificate dated November 3, 2021, that indicates that for the next three to five months the complainant would be unable to participate in legal proceedings, I do not believe this precluded filing a complaint with the Board. During that same period of time the complainant corresponded with the Guild, which shows he was able to state his complaint.
[30] The Guild, according to information provided by the complainant, is an organization that is part of the respondent. The respondent had made its decision in October 2021. The Guild seems at first to have been unaware of the exchanges between the complainant and the respondent. When it did become aware, it confirmed the decision made by the respondent. This does not extend the deadline.
[31] In addition, it is not certain that the 90-day period should be dated from October 22, 2021. The events underlying his complaint go back several years; in other words, “... the actions or circumstances giving rise to the complaint” go back much further in time.
[32] The complaint targets the respondent’s lack of representation during the events that led ultimately to the complainant going on disability leave in 2013 and taking medical retirement in 2016. In his complaint, the complainant refers to the period between 2009 and 2013 as when he had major conflicts with his employer and during which, according to him, the respondent colluded with his employer and refused to help him. It may be that from 2013 to 2018, he was unable to act and make a complaint, but he knew about the actions or circumstances and had requested help from the respondent before then.
[33] The complaint which was made in March 2022 is unfortunately out of time. As stated in Myles, at para. 42, interpreting s. 190(2) of the Act, “The basis for the complaint determines when the time limit begins. The Board cannot extend it.”
[34] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
V.
Order
[35] The documents attached as “Exhibit A” and “Exhibit N” to the March 26, 2022, submissions will be sealed.
[36] The respondent’s motion for summary dismissal is allowed because the complaint is out of time.
[37] The complaint is dismissed.
August 10, 2022.
Marie-Claire Perrault,
a panel of the Federal Public Sector
Labour Relations and Employment Board