FPSLREB Decisions
Decision Information
The applicant requested an accommodation on the ground of disability in relation to the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police – the respondent denied her request and subsequently placed her on leave without pay – the applicant filed a grievance with the assistance of her bargaining agent – after filing the grievance at the third level, the bargaining agent communicated internally about referring it to the Board for adjudication, but did not actually do so for several months, until prompted by the applicant – the respondent objected to the referral on the grounds that it was untimely – the applicant sought an extension of time under s. 61(b) of the Regulations – the bargaining agent admitted that a delay occurred and took full responsibility for it – the Board applied the criteria in Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1, and found that it was in the interest of fairness to grant the extension – the Board found that 1) the delay was entirely attributable to the bargaining agent, 2) the length of delay, approximately two months, was not outrageous, 3) the applicant had been diligent in both filing and pursuing the original grievance and in making efforts to determine its status, 4) the potential injustice to the applicant if the extension were not granted outweighed the prejudice to the respondent if it were, and 5) the grievance was not frivolous or absurd – the Board ordered that the grievance be placed on its hearing schedule in due course.
Application allowed.
Decision Content
Date: 20230324
XR: 566-02-45212
Citation: 2023 FPSLREB 27
Labour Relations Act
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Between
Remy Lewis
and
Deputy Head
(Correctional Service of Canada)
Indexed as
Lewis v. Deputy Head (Correctional Service of Canada)
Before: Marie-Claire Perrault, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Applicant: Xavier P.-Laberge, Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN
For the Respondent: Anne-Renée Bergeron, Treasury Board of Canada Secretariat
Decided on the basis of written submissions,
filed August 26 and September 20 and 28, 2022.
REASONS FOR DECISION |
I. Application before the Board
[1] Remy Lewis (“the applicant”) is a correctional officer (CX-01) with the Correctional Service of Canada (“the respondent”). She is part of a bargaining unit represented by the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (“the bargaining agent”).
[2] On July 15, 2022, the applicant referred a grievance to adjudication with the Federal Public Sector Labour Relations and Employment Board (“the Board”) pursuant to s. 209(1)(b) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”). The grievance relates to the respondent’s decision to deny the applicant’s accommodation request in relation to the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police (“the Policy”) and to place her on leave without pay.
[3] On August 5, 2022, the bargaining agent made an application for an extension of time on behalf of the applicant under s. 61(b) of the Federal Public Sector Labour Relations Regulations (SOR/2005-79; “the Regulations”). It conceded that there was a delay referring the grievance to adjudication but argued that the delay was entirely attributable to it.
[4] The respondent asks that the Board deny the grievance on the grounds that the referral to adjudication was untimely.
[5] This decision deals only with the application for an extension of time. 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 without holding an oral hearing.
[6] For the reasons that follow, the application for an extension of time is granted.
II. Background
[7] On October 6, 2021, the Policy came into effect. It required that all employees of the core public administration, which includes the respondent, be fully vaccinated against COVID-19 unless accommodated based on a certified medical contraindication, religion, or another prohibited ground as defined under the Canadian Human Rights Act (R.S.C., 1985, c. H-6; “the CHRA”).
[8] The applicant asked to be accommodated based on the prohibited ground of disability. On November 29, 2021, she met with the respondent to discuss the request. On December 1, 2021, it advised her that her request was denied and that she would be placed on leave without pay as of December 16, 2021, which was later amended to December 31, 2021.
[9] On January 29, 2022, the applicant, with her bargaining agent’s assistance, filed a grievance at the second level since the first level had been waived. On February 9, 2022, she and a grievance officer attended a second-level grievance hearing with the respondent.
[10] On February 14, 2022, the respondent conveyed its second-level answer to the applicant. It denied the grievance on the grounds that she had failed to provide evidence that she had a characteristic protected from discrimination, and therefore, it had not contravened the applicable collective agreement, the applicable policies or directives, or the CHRA.
[11] On February 23, 2022, the applicant, again with the bargaining agent’s assistance, filed the grievance at the final level. The respondent acknowledged its receipt on February 25, 2022. That same day, the bargaining agent made some internal communications about preparing the file, to refer it to adjudication.
[12] Between March 31 and April 4, 2022, the bargaining agent made more internal communications about preparing the file so that it could be referred to adjudication.
[13] On June 22, 2022, the applicant contacted the bargaining agent, seeking an update on her grievance. She explained that she had “... emailed some one [sic] from the Union and have had no reply”. Following some back-and-forth communications between them from June 23 to 27, 2022, the bargaining agent investigated the matter and discovered that the file had not been completed to refer the grievance to adjudication.
[14] On July 15, 2022, the grievance was referred to adjudication.
[15] As noted, on August 5, 2022, the bargaining agent made its application for an extension of time.
[16] On August 11, 2022, the respondent responded to the referral to adjudication. It noted that the final-level grievance response had not yet been issued and asked that the Board deny the grievance on the grounds that the referral was untimely.
[17] On August 26, 2022, the respondent provided what it characterized as a preliminary response to the application for an extension of time. It submitted that the grievance was filed at the final level on February 23, 2022, but that it was referred to adjudication only on July 15, 2022, “... well after the timelines indicated at subsection 90(2) of the Regulations”.
[18] On September 8, 2022, the Board invited the parties to make additional written submissions with respect to the timeliness issue. Both parties took advantage of the opportunity.
III. Summary of the arguments
A. For the applicant
[19] The bargaining agent admits that there was a delay referring the grievance to adjudication but argues that the delay is entirely attributable to it and that the applicant should not be penalized for its error.
[20] The applicant asks the Board, pursuant to s. 61(b) of the Regulations and in the interest of fairness, to exercise its discretion to extend the time for referring the grievance to adjudication.
[21] The applicant cites the criteria in Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1. She states that there is a persistent debate as to the weight to be given to each criterion but that the guiding concern for the Board is fairness when it exercises its discretion to extend time limits.
1. Clear, cogent, and compelling reasons for the delay
[22] The applicant submits that there is a clear, cogent, and compelling reason for the delay. In short, it was entirely attributable to the bargaining agent’s negligence, and there was nothing that she could have done to advance the matter on her own.
[23] The grievance remained at a standstill from April to July 2022. Only on June 22, 2022, after the applicant inquired as to the status of her grievance, did the bargaining agent realize that documents were missing and that it had not been referred to adjudication. The situation was not clarified until July 15, 2022, at which point all the necessary documents were sent and the referral was made to the Board.
[24] Until June 27, 2022, the applicant was not aware that her grievance had not been referred to adjudication.
[25] The applicant cites several decisions to support her position that a bargaining agent’s negligence is a clear, cogent, and compelling reason for a delay.
[26] In International Brotherhood of Electrical Workers, Local 2228 v. Treasury Board, 2013 PSLRB 144 (“IBEW”) at para. 44, the former Public Service Labour Relations Board (“the former Board”) held that a bargaining agent error may, in certain circumstances, be a clear, cogent, and compelling reason for a delay, particularly if the grievor has met his or her accountability in the process or has met the due diligence factor in Schenkman.
[27] The applicant also cites D’Alessandro v. Treasury Board (Department of Justice), 2019 FPSLREB 79, for the proposition that a bargaining agent’s negligence to file or refer a grievance can constitute a clear, cogent, and compelling reason for a delay, although it is not necessary that the delay be entirely attributable to it. In such circumstances, fairness is the Board’s guiding principle.
[28] The applicant also cites Grekou v. Treasury Board (Department of National Defence), 2020 FPSLREB 94 at para. 21, which also cites IBEW and D’Alessandro.
2. The length of the delay
[29] The delay is not outrageous. In IBEW, at paras. 54 and 55, the former Board explained that the purpose of time limits is to advance stability in labour relations and to prevent the employer from being under perpetual exposure to defend grievances against actions that have long since passed. Nevertheless, the Board retains discretion to grant extensions when it deems necessary, in the interests of fairness.
[30] The present case does not involve the late presentation of a grievance. Rather, an extension is being sought to refer to adjudication a grievance that already exists. Because of this, and because typically, it takes several years to schedule grievance hearings, the extension in this case would not destabilize labour relations.
3. The applicant’s due diligence
[31] The applicant particularly emphasizes this factor from Schenkman given the facts of this case. She cites D’Alessandro, at para. 25, for the proposition that this factor should be analyzed with the length of the delay.
[32] In Barbe v. Treasury Board (Correctional Service of Canada), 2022 FPSLREB 42 at para. 50, the Board held that “[i]f a grievor is not at fault, and if he or she diligently informed the union and helped file the grievance, I do not see how, in all fairness, he or she should then suffer the consequences of the bargaining agent’s errors.”
[33] In this case, the applicant did try to pursue her grievance diligently and cooperated with the bargaining agent throughout the process. Moreover, she emailed it to follow up. As such, she should not suffer the consequences of its failure.
4. Balancing the injustice to the applicant against the prejudice to the respondent
[34] The grievance process is the only procedure through which the applicant can assert her rights, and refusing to grant an extension of time would mean the end of her remedies.
[35] Furthermore, the applicant indicates that many similar grievances relating to vaccination requirements are before the Board. As is customary, when the Board resolves one or a few of them, the parties will agree to the fate of the others. Extending the deadline in this case is hardly likely to prejudice the respondent, which has always been aware of the existence and nature of the dispute.
5. Chances of success
[36] At this stage, the Board cannot determine whether the grievance has a chance of success as it has not had the opportunity to examine it on the merits.
[37] The respondent also has yet to respond at the final level.
[38] In Barbe, at paras. 28 and 51, the Board explained that the 40-day deadline to refer a grievance to adjudication exists to protect a grievor’s rights if the employer does not respond; otherwise, the employer could simply delay a referral to adjudication indefinitely. In Barbe, the Board stated that it caused the Board “some unease” to apply adversely a provision meant to protect an applicant’s interests.
B. For the respondent
[39] The respondent submits that the referral to adjudication was untimely and that an extension of time is unjustified given the circumstances of this case.
[40] It agrees that the Board has the authority to grant an extension of time in the interest of fairness but states that time limits under the Act should be extended only in exceptional circumstances, when doing so would be in the interest of fairness. The respondent cites Martin v. Treasury Board (Department of Human Resources and Skills Development), 2015 PSLREB 39 at paras. 57, 58, and 68.
[41] The former Board has held several times that the Schenkman criteria are not always equally important and that each criterion’s importance must be examined in relation to the facts of each case (see Gill v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 81 at para. 51).
1. Clear, cogent, and compelling reasons for the delay
[42] The respondent largely focused its argument on this criterion. It cited several cases in which the former Board found that an error or negligence on the bargaining agent’s part did not amount to a clear, cogent, and compelling reason for the delay (see Copp v. Treasury Board (Department of Foreign Affairs and International Trade), 2013 PSLRB 33; Sonmor v. Treasury Board (Correctional Service of Canada), 2013 PSLRB 20; St-Laurent v. Treasury Board (Correctional Service of Canada), 2013 PSLRB 4; and Callegaro v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 110).
[43] If there are no clear, cogent, or compelling reasons for the delay, there is no need to address the other four criteria (see Parker v. Deputy Head (Correctional Service of Canada), 2022 FPSLREB 57 at para. 32).
[44] Granting an extension without a strong justification for the delay amounts to not respecting s. 90(1) of the Regulations (see Lagacé v. Treasury Board (Immigration and Refugee Board), 2011 PSLRB 68).
[45] A bargaining agent error may not always be considered a clear, cogent, and compelling reason for a delay, but in certain circumstances it will be, particularly if the grievor has met his or her accountability in the process or has met the due diligence factor (see IBEW, at para. 44).
[46] However, in the present case, neither the bargaining agent nor the applicant did so. As for the bargaining agent, there is little explanation for what transpired during the delay, other than an oversight on its part. It was not prevented from referring the grievance to adjudication — it simply did not do it within the legal time frame. The bargaining agent is a sophisticated party with ample resources. As for the applicant, she did not follow up on the grievance until June 2022.
[47] Based on these facts, there is no clear, cogent, and compelling reason for the delay.
2. The length of the delay
[48] The approximately two-month delay to file the grievance is important.
[49] In Grouchy v. Deputy Head (Department of Fisheries and Oceans), 2009 PSLRB 92, the former Board explained that in principle, the time limits set by the Act and the Regulations are mandatory, and all parties should respect them. Short timelines are consistent with the principle that labour relations disputes should be resolved in a timely manner. Extensions should occur only after the decision maker has made a cautious and rigorous assessment of the circumstances.
3. The applicant’s due diligence
[50] The applicant did not pursue her grievance with diligence.
[51] Furthermore, the referral to adjudication was made under s. 209(1)(b) of the Act, and so, bargaining agent approval was not required.
[52] Even if employees are represented, they still have a responsibility to be aware of their rights and to stay informed. The applicant may have followed up by emailing the bargaining agent on June 22, 2022, but she did not follow up between February, when the grievance was filed at the third level, and June 22, 2022. One email does not amount to due diligence.
[53] To explain the delay, the applicant would have to show that during the time at issue, she was unable to refer the grievance to adjudication (see Popov v. Canadian Space Agency, 2018 FPSLREB 49 at para. 52).
4. Balancing the injustice to the applicant against the prejudice to the respondent
[54] This factor should not carry much weight because the applicant did not establish clear, cogent, and compelling reasons for the delay or demonstrate that she acted with due diligence.
[55] The respondent is entitled to some certainty of knowing that labour disputes will be addressed in a timely manner.
5. Chances of success
[56] The chance of success of the grievance is low as the applicant failed to provide evidence that she has a characteristic protected from discrimination under the CHRA. She requested accommodation under the ground of disability but provided no information to substantiate any medical restrictions or limitations; nor did she provide any other reasons connected to a prohibited ground that would prevent her from receiving a COVID-19 vaccination as the Policy required at the time. Rather, it is clear that her accommodation request was based on her personal preference to not be vaccinated.
IV. Reasons
[57] The Board may, in the interest of fairness, grant an extension of time to refer a grievance to adjudication. Section 61 of the Regulations provides as follows:
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[58] As both parties have pointed out, when determining whether such an extension should be granted, the Board will consider these five criteria, set out in Schenkman:
· clear, cogent, and compelling reasons for the delay;
· the length of the delay;
· the applicant’s due diligence;
· balancing the injustice to the applicant against the prejudice to the employer in granting an extension; and
· the grievance’s chances of success.
[59] Recently, in Lessard-Gauvin v. Treasury Board (Canada School of Public Service), 2022 FPSLREB 40 at para. 32, the Board explained that these criteria ought to be assessed as a whole but that they are not necessarily equally important. The facts must be examined to determine the weight to give each criterion. Sometimes, some of the criteria will not apply, or only one or two will weigh in the balance.
[60] Two principles guide the Schenkman analysis (see Parker, at para. 28). The first is that statutory or contractual guidelines are meant to be respected and that generally, they should be extended only in exceptional circumstances.
[61] However, the second and overriding principle is to promote the interest of fairness. The Board and its predecessor have commented on the importance of fairness in multiple decisions. See, for example, the following extract from IBEW, which also involved a bargaining agent’s failure to refer a grievance to adjudication within the required time:
...
61 ... [T]he overall test for extending the time limit is fairness, as articulated in paragraph 60(b) of the Regulations.
62 On that last point, it is important to emphasize that the Schenkman criteria merely serve to assist the decision maker in coming to a determination as to whether an extension of time ought to be granted... With the greatest respect, these criteria bear no fixed presumptive calculations that prevent a decision maker from considering whether, in the interests of fairness, an extension of time ought to be granted. The factors that steer such an inquiry are fact driven and based on the underlying principle of what is fair in the circumstances....
...
[Emphasis added]
[62] Recently, in Barbe, which also involved a bargaining agent’s failure to refer grievances to adjudication in a timely manner, the Board stated this:
...
[25] ... [I]t seems essential to me to first be concerned with fairness. Sometimes, a party may display so little diligence or provide such a confusing or illogical explanation that the Board cannot in good conscience grant an extension of time. Deadlines exist for a good reason, which is to ensure the most efficient process possible. Therefore, a good reason is necessary to waive them. However, in some cases, while there may be some doubt as to the clarity of the explanations or the parties’ diligence, the concern for fairness prevails.
...
[Emphasis added]
[63] The principle of fairness is particularly important in situations of bargaining agent negligence in which the grievor has exercised his or her due diligence pursuing the grievance. See Edwards v. Deputy Head (Canada Border Services Agency), 2019 FPSLREB 126 at para. 25; D’Alessandro, at paras. 20, 21, and 24; Prior v. Canada Revenue Agency, 2014 PSLRB 96 at para. 140; and Thompson v. Treasury Board (Canada Border Services Agency), 2007 PSLRB 59.
A. Clear, cogent, and compelling reasons
[64] The bargaining agent explains that the delay referring the grievance to adjudication was attributable entirely to it and that there was nothing the applicant could have done on her own. For approximately three months, the grievance was at a standstill. The applicant was not aware that it had not been referred to adjudication until June 27, 2022, after she reached out to the bargaining agent for an update.
[65] The respondent submits that the bargaining agent’s failure to forward the signed paperwork or to follow up within the time limit does not amount to a clear, cogent, and compelling reason for the delay. In its view, neither the bargaining agent nor the applicant met their accountabilities.
[66] As noted in Barbe, the Board has had two different approaches to delays caused by a bargaining agent as illustrated in Copp and Thompson. For the reasons set out in Barbe, I prefer the approach in Thompson and D’Alessandro, as stated in the following extract:
...
[50] With respect, I disagree with the decision in Copp. I prefer the approach in D’Alessandro. If a grievor is not at fault, and if he or she diligently informed the union and helped file the grievance, I do not see how, in all fairness, he or she should then suffer the consequences of the bargaining agent’s errors....
...
[67] On the facts of this case, I find that there is a clear, cogent, and compelling reason for the delay. The bargaining agent is unequivocal that the applicant is blameless. The delay was solely attributable to the fact that the grievance was at a standstill for three months as result of the bargaining agent not completing the required paperwork. The applicant cooperated with the bargaining agent throughout the grievance process and had no reason to expect that it would not refer the grievance to adjudication.
B. The length of the delay
[68] The length of delay in this case is approximately two months. As the applicant noted, this is not outrageous. In Parker, the Board characterized a two-month delay referring a grievance to adjudication as “relatively speaking, not inordinate” (at paragraph 47). In my view, the length of the delay does not carry much weight in this case.
C. The applicant’s due diligence
[69] I find that in the circumstances of this case, the applicant exercised due diligence. She pursued her original grievance diligently, with the bargaining agent’s assistance, and cooperated with it throughout the process. In June 2022, she made efforts to determine the grievance’s status. After that, she stayed in contact with the bargaining agent.
D. Balancing the injustice to the applicant against the prejudice to the respondent
[70] The impact on the applicant is significant in comparison to the impact on the respondent, which does not suggest that it will suffer any specific prejudice if the extension of time is granted.
[71] The respondent also did not deny that several other, similar grievances are pending before the Board.
E. Chances of success
[72] As explained in Barbe, this criterion can be used to deny a request for an extension of time when the grievance has no chance of success, in the interest of efficiency. That is not so in this case.
[73] I agree with the applicant that it is too early to evaluate the grievance’s chances of success. However, at first glance, it is not frivolous or absurd.
V. Conclusion
[74] To conclude, I find that the applicant was not responsible for the delay referring the grievance to adjudication and that she presented a clear, cogent, and compelling reason for the delay. Its length is not significant, and she showed due diligence. The potential injustice to her also outweighs any prejudice to the respondent.
[75] In the interest of fairness, I find that this is an appropriate case in which to exercise my discretion and to extend the time limit for referring the applicant’s grievance to adjudication.
[76] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
VI. Order
[77] The application for an extension of time for referring the grievance in Board file no. 566-02-45212 to adjudication is allowed.
[78] The grievance will be placed on the Board’s hearing schedule in due course.
March 24, 2023.
Marie-Claire Perrault,
a panel of the Federal Public Sector
Labour Relations and Employment Board