Date: 20230515
Citation: 2023 FPSLREB 50
Labour Relations Act
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Between
Arianna Amato
Grievor
and
(Correctional Service of Canada)
Employer
Indexed as
Amato v. Treasury Board (Correctional Service of Canada)
In the matter of an individual grievance referred to adjudication
Before: Christopher Rootham, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Grievor: Kayla Minor, Public Service Alliance of Canada
For the Employer: Asira Shukuru, Treasury Board
Decided on the basis of written submissions,
filed January 30 and February 7 and 21, 2023.
REASONS FOR DECISION |
I. Overview
[1] The Treasury Board (“the employer”) objects to this grievance on the basis that the grievor referred it to adjudication outside the 40-day period prescribed by s. 90 of the Federal Public Sector Labour Relations Regulations, SOR/2005-79 (“the Regulations”). The original deadline for the employer to respond to the grievance at the final level expired on September 4, 2018; it eventually denied the grievance at the final level on December 1, 2022. Arianna Amato (“the grievor”) referred their grievance to adjudication within 40 days of that December 1, 2022 decision. The employer now argues that the grievor referred their grievance to adjudication late and that the deadline to refer their grievance to adjudication expired on October 28, 2018 in accordance with s. 90(2) of the Regulations. The employer argues that it was deemed to have rejected the grievance on August 23, 2018, which started the 40-day period to refer it to adjudication. The employer also complains generally about the 4-year delay in the process for this grievance.
[2] For the reasons set out in this decision, the grievor referred their grievance to adjudication within the prescribed 40-day period. Section 90(2) of the Regulations applies only when the employer does not render a final-level decision. Since it rendered one, the time limit set out in s. 90(1) governs this case instead, and that time limit began to run on December 1, 2022.
[3] Additionally, a failure to respond to a grievance within the required period is not a deemed rejection of the grievance for the purposes of s. 90 of the Regulations. Finally, the employer did not demonstrate that it has been prejudiced by the delay in the process for this grievance, particularly as that delay resulted from the employer’s own lassitude in responding to the grievance.
II. Summary of the evidence
[4] The grievor is a parole officer and member of the Program and Administration Services bargaining unit represented by the Public Service Alliance of Canada. They grieve that the employer violated the health and safety article of the collective agreement between the Treasury Board and the Public Service Alliance of Canada for the Program and Administrative Services group that expired on June 20, 2018 (“the collective agreement”) by failing to hire an adequate number of parole officers, leading to an unhealthy level of overwork. The chronology of the grievance is as follows:
· May 24, 2018: The grievor filed the grievance.
· June 18, 2018: The employer denied the grievance at the first level.
· June 29, 2018: The grievor referred the grievance to the second level.
· August 1, 2018: The employer denied the grievance at the second level.
· August 3, 2018: The grievor referred the grievance to the third and final level.
· December 1, 2022: The employer denied the grievance at the third and final level.
· January 5, 2023: The grievor referred this grievance to adjudication.
[5] Neither party provided any explanation for the more than four-year delay in deciding the grievance at the final level. Neither party suggested that they agreed to the delay, nor did they suggest that that the delay prejudiced them.
III. Summary of the arguments
[6] The employer objected to this adjudication on January 30, 2023. The grievor responded on February 7, 2023, and the employer replied on February 21, 2023. On April 5, 2023, I invited the parties to provide additional submissions in accordance with a timetable that was provided to them. Neither party filed additional submissions.
[7] The employer argued that the time limit to refer the grievance to adjudication expired as set out in s. 90(2) of the Regulations, namely, 40 days from the deadline for it to respond to the grievance at the final level. It argued that since the grievor could have referred the grievance to adjudication at that time, they were required to, and that the reference to adjudication was filed late. It cited Krack v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 74 at para. 10, in support of this proposition.
[8] The employer also argued that its failure to render a final-level decision in a timely fashion must be construed as a decision denying the grievance (presumably on the 21st day after the day on which the grievance was referred to the final level), and it cited McWilliams v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 58, in support of that proposition. Finally, it argued that the length of time that elapsed between the grievance being referred to the final level and then to adjudication (over 4 years) was significant.
[9] The grievor argued that s. 90 of the Regulations provides two alternatives by which a grievance can be referred to adjudication. They could have referred it in the absence of the employer’s response in accordance with s. 90(2); however, once the employer issued its final-level decision, the applicable time limit was the one set out in s. 90(1). They also submitted that it is common practice for the bargaining agent to wait for the employer to issue its response at each level of the grievance process before transmitting a grievance to the next level. They cited Halleran v. Treasury Board (Correctional Service of Canada), 2020 FPSLREB 68.
IV. Reasons
[10] This motion revolves around the interpretation of s. 90 of the Regulations, which reads as follows:
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[11] The meaning of s. 90 of the Regulations must be determined by considering the trinity of statutory interpretation: the text, context, and purpose of that provision (see Bernard v. Professional Institute of the Public Service, 2019 FCA 236 at para. 7).
A. Section 90 of the Regulations
1. The text of s. 90 of the Regulations
[12] To begin with the text, the employer argues that the time limit to refer the grievance to adjudication is determined on the basis of s. 90(2) of the Regulations. This argument ignores the introductory phrase of that subsection, which states, “If no decision at the final level of the applicable grievance process was received ...”. The employer rendered a decision at the final level of the grievance process dated December 1, 2022. This means that the deadline is set out in s. 90(1), not s. 90(2). The employer’s submission would require me to read into s. 90(2) words to the effect of “If no [timely] decision at the final level of the applicable grievance process was received ...” [emphasis added]. However, the plain meaning of the text of s. 90(2) precludes such a meaning.
2. The context of s. 90 of the Regulations
[13] There are three relevant contextual considerations in this case: the headings in the Regulations, the case law about grievances generally, and the interaction between s. 12 of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”) and the Regulations.
a. The headings in the Regulations: “Exception” means “Exception”
[14] First, the headings in a statute or regulation may be used to “... cast light on the purpose or scope of the provisions to which they relate” (Sullivan, Ruth. The Construction of Statutes, 7th ed. Toronto: LexisNexis 2022, at paragraph 14.05[2]). The heading to s. 90(2) of the Regulations states only “Exception”, meaning that the time limit in s. 90(2) is an exception to the time limit in s. 90(1) that begins to run after a final-level grievance decision has been rendered. This also supports what I described earlier as the plain meaning of s. 90(2), which is that it only applies exceptionally in the absence of a final-level decision.
b. The case law about grievances generally: the expiry of the deadline to respond is not a deemed response under s. 90 of the Regulations
[15] Second, the employer argues that the expiry of the deadline for it to provide a final-level response was a deemed denial of the grievance triggering the time limit in s. 90 of the Regulations. Presumably, according to the employer, this means that its December 1, 2022, final-level decision was a nullity.
[16] The employer cites McWilliams in support of that proposition. However, McWilliams does not stand for that proposition.
[17] McWilliams involved an employer’s objection to the timeliness of a grievance. The issue in that case was whether the employer properly objected to the timeliness at each level of the grievance process. At the first level, its representative gave only a terse response to the grievance and denied that he had the jurisdiction to resolve it. The former Public Service Labour Relations Board (“PSLRB”) concluded that since the brief response did not raise the timeliness of the grievance, the employer could not object to its timeliness at later stages. The former Public Service Labour Relations and Employment Board reached a similar conclusion in Shandera v. Deputy Head (Correctional Service of Canada), 2016 PSLREB 21 at para. 33, stating that “[t]his ‘non-reply’ rejection, as described in McWilliams, means that the respondent’s first response did not reject the grievances as untimely.” The Federal Public Sector Labour Relations and Employment Board (“the Board”) reached the same conclusion again in Emard v. Treasury Board (Correctional Service of Canada), 2019 FPSLREB 66 at para. 74.
[18] At most, all that the Board and its predecessors found in those cases was that an employer’s non-response was a deemed waiver of any objection to the timeliness of the grievance. In other words, if the employer is going to complain that the grievor is late, the employer must issue a reply to the grievance at each level objecting to the timeliness of the grievance.
[19] The McWilliams decision does state, in passing at paragraph 22, that “... the failure of a decision-maker in the grievance procedure to reply must be construed as a decision rejecting the grievance.” However, the employer has taken that phrase out of context.
[20] That passage describes the result of a series of Federal Court decisions involving requests by non-unionized employees at the Canadian Security Intelligence Service (“CSIS”) to be paid the bilingualism bonus. A group of non-unionized employees requested the bonus, and the Director of CSIS did not respond to their request. The employees commenced an action in Federal Court. In Employee No. 1 v. Canada, 2004 FC 1221, the Court decided to treat the request for payment as a grievance and then to treat the Director’s non-response as a “decision” for the purposes of s. 18.1(2) of the Federal Courts Act (R.S.C., 1985, c. F-7); therefore, the Court dismissed the action but ordered the dispute to proceed by way of judicial review.
[21] Nothing in Employee No. 1 suggests that a non-response to a grievance irrevocably triggers the 40-day period prescribed in s. 90(2) of the Regulations.
[22] Later, in Veillette v. Canada (Revenue Agency), 2020 FC 544 at para. 30, the Federal Court stated that “... the case law recognizes, implicitly at least, that an employer may choose to not reply to a grievance, and this non reply will be interpreted as a rejection of the grievance ...”, that “case law” being McWilliams and Employee No. 1. Again, the Federal Court was not tasked with interpreting s. 90 of the Regulations in that case. Instead, it was responding to the applicant’s argument that the employer’s failure to provide a timely response to his grievance at the first level violated the rules of procedural fairness. The Court dismissed that argument, in part, because it concluded that the employer is not required to respond to a grievance at each level.
[23] With respect, the Court in Veillette appears not to have considered s. 72 of the Regulations when it concluded that an employer is not required to respond to a grievance. Section 72(1) states that “... the person whose decision constitutes the appropriate level of the individual grievance process must provide the decision to the grievor or the grievor’s representative ...” [emphasis added]. Section 90(2) also states that the 40-day period starts as soon as the employer’s decision “was required” [emphasis added]. Therefore, the Regulations require the employer to respond to grievances at each level according to s. 72, and certainly at the final level according to s. 90(2).
[24] In Veillette, the Court dismissed the applicant’s procedural fairness argument on a number of different grounds, so the Court’s statement quoted earlier was made in passing (obiter dicta) and would not be binding on the Board even if the issues raised in this case and Veillette were the same – which they are not.
[25] I note parenthetically that clause 18.17 of the collective agreement in this case is worded differently from s. 72 of the Regulations. It states that “[t]he Employer shall normally reply to a grievance at any level of the grievance procedure, except the final level, within ten (10) days after the grievance is presented, and within twenty (20) days where the grievance is presented at the final level ...” [emphasis added]. If the phrase “shall normally” means that the employer is not required to issue a final-level decision, then there would never be a deadline that would trigger s. 90(2) of the Regulations (because no decision was ever “required”), and the only deadline to file a grievance at adjudication would be that set out in s. 90(1).
[26] If I were asked to interpret clause 18.17, I would have serious concerns about interpreting it in a way that meant that there would be no deadline for an employer to respond. However, the employer did not rely on clause 18.17, and therefore, I need not resolve that issue in this case.
[27] The point remains that none of the cases cited earlier was about the interpretation of s. 90 of the Regulations; therefore, they are unhelpful in resolving this dispute.
[28] Similarly, I have not relied upon Halleran, cited by the grievor, as it was also not about s. 90 of the Regulations. In that case, the Board interpreted a collective agreement that stated explicitly that a grievor could move a grievance to the next level within 10 days of receiving the decision or within 15 days from the employer’s deadline to respond. The Board heavily emphasized the word “or”, which is missing from s. 90. Therefore, Halleran is unhelpful in resolving this case.
[29] Finally on this point, if the employer is correct that a grievance is deemed to be rejected 20 days after it has been referred to the final level of the grievance process, this would render s. 90(2) of the Regulations redundant. This concept of a “deemed rejection” means there would never be “no decision” to trigger s. 90(2); instead, the expiry of the deadline to respond to a grievance would be a “decision”, triggering s. 90(1). The effect would be that s. 90(2) would never apply. This cannot be the intention behind the Regulations, as all words in a statute or regulation must be given meaning (see Winters v. Legal Services Society, [1999] 3 S.C.R. 160 at para. 48). Therefore, the employer’s proposed meaning must be rejected as it violates the rule against redundancy (see Barejo Holdings ULC v. Canada, 2020 FCA 47 at para. 74).
[30] In conclusion, the employer’s failure to respond to a grievance at the final level is not a deemed rejection of the grievance for the purpose of s. 90(1) of the Regulations, and the case law does not support the employer’s interpretation of s. 90.
c. The interaction between section 12 of the Act and section 90 of the Regulations
[31] Third, s. 90 of the Regulations should be read in context with s. 12 of the Act. Section 12 of the Act grants the Board the authority to make orders requiring compliance with the Act or Regulations, including an order that the employer hear and decide a grievance (see, for example, Melnichouk v. Canadian Food Inspection Agency, 2004 PSSRB 181, decided under s. 23 of the Public Service Staff Relations Act (R.S.C., 1985, c. P-35), which was the equivalent to s. 12 of the Act).
[32] Section 90 of the Regulations and s. 12 of the Act, read together, give grievors three options when an employer does not respond to a grievance at the final level in a timely fashion:
1) refer the grievance to adjudication within 40 days from the employer’s deadline to provide that response at the final level;
2) wait patiently for a grievance decision and then, once one is provided, refer the grievance to adjudication; or
3) wait for a decision but then, once the grievor is no longer satisfied with the delay, make an application under s. 12 of the Act to compel the employer to render a decision. Once that decision has been rendered, the grievance can be referred to adjudication.
[33] Those three options may be different when there is express language in a collective agreement governing how grievances are treated at final level, as such provisions in a collective agreement would supersede the Regulations in accordance with s. 237(2) of the Act.
[34] In this case, the grievor selected the second option, which was their right. There is no collective agreement language to supersede that option here. The reference to adjudication remains timely, despite the employer’s four-year delay in rendering the final-level decision.
3. The purpose behind s. 90(2) of the Regulations
[35] Finally, the purpose behind s. 90(2) is to provide an “escape valve” for grievors when the employer — through inadvertence or by design — does not render a timely final-level decision on a grievance. Some grievances are more urgent than others; s. 90(2) permits a grievor to assess the urgency of their dispute and then refer the grievance to adjudication without allowing the employer to consider the grievance in a leisurely fashion. The purpose behind s. 90(2) is not to allow the employer to reap the benefits of its delay rendering a final-level decision.
B. The delay in this grievance is not an abuse of process
[36] The employer also complains generally about the more than four years that have elapsed since the grievance was referred to the final level. A significant delay in a grievance proceeding may constitute an abuse of process and may lead to the Board dismissing the grievance but only in two circumstances: when the fairness of the hearing has been compromised as a result of the delay, or if significant prejudice has come about due to an inordinate delay (see Law Society of Saskatchewan v. Abrametz, 2022 SCC 29 at paras. 41 to 43). The employer has alleged neither procedural unfairness nor prejudice as a result of the delay. Even if it had done so, I would have dismissed such a claim, since if “... the delay was caused by the party who complains of that delay, it cannot amount to an abuse of process ...” [emphasis in the original]; see Abrametz, at para. 62. The employer cannot suggest that the delay in this case was inordinate given that it was responsible for that delay by failing to render a timely final-level decision.
V. Observations
[37] Two other matters arose in this preliminary decision that warrant comment.
[38] First, the grievor’s representative filed a written response to the employer’s objection that concluded with this: “We present this reply to the Board without prejudice to any other submissions that the PSAC may wish to present at a later time” [emphasis in the original]. Submissions filed with the Board are never “without prejudice”. I assumed that the grievor’s representative was asking for permission to file more fulsome submissions at a later date.
[39] In this case, I permitted both parties to file additional submissions; however, I was not required to do so. Parties should not assume that they can file submissions and then supplement them later. The Board is able and willing to decide cases on the basis of the submissions when they are filed, no matter how terse.
[40] Second, I wanted to express my concern over the length of time that this grievance “sat” at the final level, waiting for a decision. Neither party tried to explain the delay. There may be a reasonable explanation; nevertheless, I remind the parties of the axiom that labour relations delayed is labour relations denied.
[41] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
VI. Order
[42] The employer’s objection is dismissed.
May 17, 2023.
Christopher Rootham,
a panel of the Federal Public Sector
Labour Relations and Employment Board