FPSLREB Decisions
Decision Information
The complainant made a complaint against the respondent under ss. 77(1)(a) and (b) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; PSEA), alleging abuse of authority in the application of merit and in the choice of process – consistent with s. 20 of the Federal Public Sector Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365; FPSLREBA), the Federal Public Sector Labour Relations and Employment Board (“the Board”) provided written notice to the parties that they would be required to participate in a settlement conference – the complainant failed to participate or advise the Board of his absence – when contacted by the Board, he stated that the date had been inconvenient for him and that he would not participate in any meetings as his case spoke for itself – the Board sent the complainant multiple follow ups, but he refused to reply or participate in the complaint process – he was well advised that the Board could consider his complaint abandoned and that it could dismiss the complaint without further notice if he failed to reply – the Board accepted that his failure to participate and respond demonstrated his lack of intention to participate in its process – furthermore, the complainant bore the burden of proof, which cannot be discharged solely on allegations – he had to adduce evidence through the hearing process to meet that burden – the Board found that it would be contrary to the public interest and an inefficient administration of justice to continue with a process in which, in spite of repeated communications from the Board, the complainant indicated no intention of proceeding or presenting a case to support his complaint – pursuant to s. 22 of the FPSLREBA, an oral hearing to decide the matter would have been an inefficient administration of justice, given the complainant’s refusal to participate in the process.
Complaint dismissed.
Decision Content
Date: 20230315
File: 771-02-42180
Citation: 2023 FPSLREB 26
|
Between
Serge Stewart
Complainant
and
Deputy Head
(Royal Canadian Mounted Police)
Indexed as
Stewart v. Deputy Head (Royal Canadian Mounted Police)
Before: Edith Bramwell, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: No one
For the Respondent: Daysi Amaya-Maragoni
For the Public Service Commission: Louise Bard
REASONS FOR DECISION |
I. Introduction
[1] The complainant, Serge Stewart, made a complaint to the Federal Public Sector Labour Relations and Employment Board (“the Board”) under ss. 77(1)(a) and (b) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “PSEA”). He alleged abuse of authority by the respondent, the deputy head of the Royal Canadian Mounted Police, in the application of merit and in the choice of process in appointment process 20-RCM-ACIN-N-N-NCR-SPS/TO-91152 (“the appointment process”) for the operational data coordinator position, classified AS-05 - ADM-05.
[2] The respondent denied that an abuse of authority occurred in the appointment process.
[3] The Public Service Commission responded to the allegation but took no position on the merits of the complaint.
[4] For the reasons that follow, the complaint is dismissed. The complainant stated to the Board that he did not intend to engage in the hearing process or present evidence to discharge the burden of proving that an abuse of authority occurred. The Board considers that the complaint has been abandoned.
II. Summary of the evidence
[5] On October 21, 2020, the complainant made the complaint. He later provided allegations to the Board.
[6] The respondent replied to the allegations, providing its rationale for the appointment.
[7] On June 6, 2022, the Board provided written notice to the parties of a settlement conference. The notice of settlement conference expressly stated that the parties were required to participate. Pre-settlement videoconferences were scheduled to occur on August 3, 2022, with each party. The settlement conference to be attended by all parties was scheduled for August 10, 2022.
[8] The notice also provided that each party was required to prepare and submit a settlement brief by July 13, 2022.
[9] On June 29, 2022, the respondent provided its settlement brief. At no time did the complainant provide a settlement brief.
[10] On July 22, 2022, the Board provided the parties with the details for joining the pre-settlement and settlement videoconferences.
[11] The complainant did not attend the scheduled pre-settlement videoconference. When the Board then contacted him, he replied on August 4, 2022, that he had not planned to attend and that the date and time were not convenient to him. He stated that he would not attend any meetings. He added that his case spoke for itself and that he “… trust[ed] the Board [would] gather the remaining corroborating evidence held by the RCMP to reach a clear and impartial ruling.”
[12] The settlement conference scheduled for August 10, 2022, was cancelled on the basis of the complainant’s stated refusal to attend.
[13] The Board emailed the complainant on August 18, 2022, to clarify his intention to proceed with the complaint process, as follows:
…
Further to your email of August 4, 2022, the Board seeks the following information.
The Board notes your failure to attend the settlement conference as directed, and your subsequent submission where you indicate that your case speaks for itself. It remains unclear whether you have an intention to participate further in the complaint process.
Please take note that in a hearing before the Board, the complainant bears the burden of proof. A case is not decided on the basis of the complaint document or the allegations. They are not evidence. It is decided based on the evidence that is presented during the hearing.
Evidence is ordinarily provided through the parties’ examination and cross-examination of witnesses and through the documents that are presented. Subject to legal considerations such as relevance and weight, the Board may admit that evidence.
The complainant and the respondent will be given the same opportunity to present evidence to address the case. It is each party’s responsibility to organize their witnesses and documentary evidence for the hearing. The Board does not perform its own inquiry or audit of the matters in issue. Further information about the hearing process may be found on the Board’s website at https://www.fpslreb-crtespf.gc.ca/en/resources/guides/staffing-complaints-guide.html
As noted above, it is not clear from your email whether you intend to participate further in the hearing process. By this email, the Board is directing you to reply by September 1, 2022 to indicate your intention.
If you indicate that you wish to proceed with the hearing of your complaint, it will retain its priority in the Staffing Case List published by the Board at https://www.fpslreb-crtespf.gc.ca/en/hearings/staffing-list.html
Please be advised that if you respond to indicate that you do not intend to participate or proceed with your complaint, the Board may dismiss the complaint or close the file without further notice. If you fail to respond, the Board may consider that you have abandoned the complaint and similarly may dismiss it without further notice.
Thank you for your attention to this matter.
…
[Emphasis in the original]
[14] The complainant provided no response to the email.
[15] On September 6, 2022, the Board sent the same message to the complainant by registered mail, requiring a response by September 21, 2022. Again, he failed to reply.
[16] On January 10, 2023, the complainant provided an updated mailing address by email, in response to an email inquiry from the Board. The complainant did not comment on any of the Board’s previous communication that had been sent to the same email address.
[17] On January 11, 2023, the Board sent a letter to the complainant by registered mail, repeating the information and direction contained in the August 18, 2022, email, and requesting a reply from the complainant by no later than January 31, 2023. Once again, the complainant was advised that if he failed to respond, the Board might consider him to have abandoned the complaint and might dismiss it without further notice. No reply to the registered letter was ever received.
III. Reasons
[18] Section 20 of the Federal Public Sector Labour Relations and Employment Board Act, (S.C. 2013, c. 40, s. 365; “FPSLREBA”) empowers the Board to “order pre-hearing procedures, including pre-hearing conferences that are held in private, and determine the date, time and place of the hearings for those procedures …”.
[19] Consistent with the authority granted to the Board, the parties were given notice requiring them to attend scheduled pre-settlement and settlement conferences. As noted, complainant did not comply with the notice.
[20] Subsequent to the scheduled time for the pre-settlement conference, the complainant declared that he would attend no further meetings and that his case spoke for itself. While he indicated that the date and time of the settlement conference had not been convenient, at no time between June 6, 2022, when notice was issued, and August 3, 2022, when the pre-settlement conference was to be held, did he advise the Board or ask for rescheduling.
[21] When the Board sought clarification multiple times as to whether the complainant intended to participate further in the complaint process which includes the hearing, advised him of his responsibility to present evidence, and the consequence of failing to respond to the Board’s inquiry, he did not reply.
[22] I accept that the complainant’s failure to participate and to respond to the Board’s directions at multiple points subsequent to August 4, 2022, signals that the complainant does not intend to participate further in the Board process, including the hearing and presenting evidence to support his complaint.
[23] I note further that a complainant bears the burden of proof in the hearing of a staffing complaint before the Board (see Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 at para. 50). In the absence of evidence, the burden of proof that rests with the complainant would not be discharged.
[24] Allegations do not serve as proof. Participating in the hearing process and presenting evidence and arguments to support the allegations is the manner of establishing a complainant’s case (see Portree v. Deputy Head of Service Canada, 2006 PSST 14 at para. 49).
[25] As the former Public Service Staffing Tribunal held in Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 20 at para. 50: “It is not sufficient for a complainant to make bold statements in the complaint and allegations claiming abuse of authority without supporting these allegations with evidence from witnesses, facts and/or documents.”
[26] In this respect, it bears repeating that neither the complainant nor anyone on his behalf has engaged meaningfully with the Board in the form of a reply to the Board’s directions since August 4, 2022, despite three letters, sent by email and registered mail, to indicate the need for a response and the risk that the complaint would be dismissed in the absence of a response.
[27] I adopt the Board’s reasoning in Patwell v. Deputy Minister of Employment and Social Development, 2018 FPSLREB 37 at para. 31, and Dubord v. Union of Safety and Justice Employees, 2018 FPSLREB 92 at para. 69, in which the Board held among other findings that the public interest and efficient administration of justice are factors to be considered when determining whether a complaint has been abandoned.
[28] Based on the chronology of events, the complainant’s lack of response, and consistent with the Board’s findings in Patwell and Dubord, I find that the complainant has abandoned the complaint.
[29] As provided in s. 22 of the FPSLREBA, the Board “… may decide any matter before it without holding an oral hearing.” Based on the complainant’s written statement, and his subsequent failure to respond to the Board’s correspondence even when notified of the risk that his complaint would be considered abandoned, I have determined to dismiss this complaint without holding an oral hearing. It would be contrary to the public interest and it would be inefficient administration of justice to continue with a process where, in spite of repeated communication from the Board, the complainant has indicated no intention of proceeding or presenting a case to support his complaint.
[30] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
IV. Order
[31] The complaint is dismissed.
March 15, 2023.
a panel of the Federal Public Sector
Labour Relations and Employment Board