Date: 20240625

Files: 771-02-41726 and 41751

XR: 771-02-41733 and 41750

 

Citation: 2024 FPSLREB 85

Federal Public Sector Labour Relations and Employment Board Act and Public Service Employment Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Manjit Sangha

Complainant

 

and

 

DEPUTY HEAD

(Department of Employment and Social Development)

 

Respondent

and

OTHER PARTIES

Indexed as

Sangha v. Deputy Head (Department of Employment and Social Development)

In the matter of complaints of abuse of authority pursuant to s. 77(1) of the Public Service Employment Act

Before: Nancy Rosenberg, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant: Herself

For the Respondent: Adam Feldman, counsel

For the Public Service Commission: Maude Bissonnette Trudeau, senior analyst

 

REASONS FOR DECISION

I. Complaints before the Board

[1] On April 20, 2020, Manjit Sangha (“the complainant”) made a complaint to the Federal Public Sector Labour Relations and Employment Board (“the Board”) (Board file no. 771-02-41726) under s. 77(1) of the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13; “PSEA”). On May 5, 2020, she made another such complaint (Board file no. 771-02-41751) under s. 77. Both complaints alleged that the Deputy Head of the Department of Employment and Social Development (“the respondent”) abused its authority in the application of merit and the choice of process.

[2] On April 22, 2020, Joseph Yan made a similar complaint under s. 77(1) of the PSEA (Board file no. 771-02-41733). On May 5, 2020, he made another complaint under s. 77 of the PSEA (Board file no. 771-02-41750).

[3] On August 20, 2020, Ms. Sangha’s complaint (Board file no. 771-02-41726) was consolidated with Mr. Yan’s complaint (Board file no. 771-02-41733) as both were about the same non-advertised acting appointment for a PM-04 senior program development officer position (staffing process number 2020-CSD-ACIN-WT-0043103). The lead file was file no. 771-02-41726.

[4] Also on August 20, 2020, Ms. Sangha’s complaint (Board file no. 771-02-41751) was consolidated with Mr. Yan’s complaint (file no. 771-02-41750) as both were about the same non-advertised acting appointment for a PM-03 team leader position (staffing process number 2020-CSD-ACIN-WT-0046978). The lead file was file no. 771-02-41750.

[5] On March 29, 2023, the Board scheduled the hearing of consolidated Board file no. 771-02-41726 for July 27 and 28, 2023. On April 3, 2023, Ms. Sangha requested that the hearing be postponed as she was to be on annual leave at that time. On July 25, 2023, the Board rescheduled it for October 3 and 4, 2023.

[6] On June 23, 2023, the Board scheduled the hearing of consolidated Board file no. 771-02-41750 for October 19 to 21, 2023, and on September 15, 2023, it notified the parties that consolidated Board file no. 771-02-41750 would be heard with consolidated Board file no. 771-02-41726 on October 3 and 4, 2023.

[7] On September 18, 2023, in response to a request from the respondent, the Board asked the parties for their availability for a pre-hearing conference.

[8] On September 25, 2023, the respondent asked the Board to dismiss both consolidated complaints on the grounds that the Board lacked jurisdiction to order the remedies requested. On September 27, 2023, the Board denied the respondent’s request and scheduled a pre-hearing videoconference for September 29, 2023.

[9] On September 29, the pre-hearing conference was cancelled as the panel of the Board was unable to join it. The Board advised the parties that any issues to be discussed would be addressed on October 3, the first hearing day. The parties decided to use the time scheduled for the pre-hearing conference on September 29 to engage in informal discussions about the complaints and the upcoming hearing.

[10] On the same day, September 29, 2023, the Board emailed the parties the videoconferencing link for the hearing.

[11] On October 3, 2023, the Board convened the scheduled hearing. Neither complainant appeared. This decision deals only with the complaints made by Ms. Sangha (Board file nos. 771-02-41726 and 41751).

[12] At the start of the hearing, counsel for the respondent advised the Board that Ms. Sangha had sent a letter to the Board and to the respondent at 12:36 a.m. (EDT) that morning. The relevant part of the complainant’s letter reads as follows:

...

On Friday September 29 while waiting for the pre hearing to begin I received an email from the employer and their counsel to have an informal meeting.

During this meeting I realized that the employer is standing firm with their stance that Ms Ma did not abuse her delegated authority. I did request a letter from the employer acknowledging that Ms Ma did abuse her delegated authority by not considering qualified candidates for the Team leader and Senior development officer roles.

During this informal conversation I realized my mental health is more important to me. I am asking the board to consider my request to accept this written submission.

My union representative Dave Saba laid out in his submission to the board the allegations in these complaints and provided case law (both are attached to the email). I would have used this submission while I was presenting verbal evidence.

However I am on travel status starting Tuesday, October 2 thru [sic] Thursday October 4, and am not available at the hearing times.

Please also be advised the hearing is scheduled for 6:30 am Pacific time. There was no recognition that both complainants are located in the Pacific time zone.

...

 

[13] The complainant’s letter then briefly set out her submission to the Board and asked the Board to consider it along with her previously submitted allegations, which were attached to the email.

[14] The respondent objected to the complainant’s written request, made a motion of non-suit, and asked the Board to dismiss the complaints.

[15] It also submitted that the complainant’s failure to appear, without notice, was a costly turn of events and that it resulted in a significant waste of resources for the respondent. It referred the Board to Vani v. The Chief Statistician of Canada, 2008 PSST 29, a decision of the former Public Service Staffing Tribunal (PSST) in which a complainant had informed the PSST at the end of the day before his staffing hearing that he would not be present. The PSST noted this at paragraph 55:

55 ... Significant resources are expended on arranging oral hearings where they are deemed appropriate. It is the responsibility of the parties to inform the Tribunal in a timely manner if they are not going to exercise their right to be heard following receipt of a Notice of Hearing.

 

II. Reasons for decision

[16] The complainant’s letter suggested several different factors that may have informed her decision to not appear at the hearing, including that she realized during the parties’ informal discussion that the respondent was standing firm in its position that there had been no abuse of authority, that her mental health was more important, and that the hearing was scheduled at an inconvenient time.

[17] The complainant asked the Board to consider the written allegations prepared by her union representative that had previously been filed with the Board, in lieu of appearing at the hearing. She stated that: “I would have used this submission while I was presenting verbal evidence. However, I am on travel status starting Tuesday, October 2 thru [sic] Thursday October 4, and am not available at the hearing times.”

[18] This is the only clear statement providing a reason for the complainant not attending the hearing. She stated that she was not available as she was on travel status from October 2 (the day before the scheduled hearing) to October 4, 2023.

[19] On July 25, 2023, the complainant was notified that consolidated Board file no. 771-02-41726 would be heard on October 3 and 4, 2023. She did not indicate that she would be on travel status or raise any other issue of unavailability for the hearing.

[20] On September 15, 2023, she was notified that consolidated Board file no. 771-02-41750 would be heard together with consolidated Board file no. 771-02-41726 on October 3 and 4, 2023, instead of on October 19 and 20, 2023. She did not indicate that she would be on travel status or raise any other issue of unavailability for the hearing.

[21] Each time the parties were advised that hearing dates had been scheduled, they were also directed to the Board’s Policy on Postponements of Hearings. This policy advises, in part, that if a postponement is not granted, parties are expected to be present on the date of the hearing. At no time did the complainant advise the Board that she required a postponement of the October 3 and 4 dates.

[22] On September 29, 2023, three days before the hearing, the Board sent the complainant the videoconferencing link for the hearing. She did not respond that she would be on travel status or raise any other issue of unavailability for the hearing.

[23] Also on September 29, the complainant met with the respondent and engaged in informal discussions about the upcoming hearing. She did not inform the respondent or the Board at that time that she would be on travel status in two days’ time or raise any other issue of unavailability for the hearing.

[24] While the complainant might not have known on July 25, or even on September 15, that she would be on travel status from October 2 to 4, she must certainly have known it on September 29.

[25] Section 29 of the Public Service Staffing Complaints Regulations (SOR/2006-6) stated this, as of when these complaints were made:

 

[26] Huot v. President of the Economic Development Agency of Canada for the Regions of Quebec, 2011 PSST 29, was a PSST decision that dealt with a very similar fact situation. Despite having received notice of the hearing, the complainant in that case said nothing about any availability issues until the day before the hearing, when he notified the PSST that he was on a sabbatical out of country and that he would not attend. He implicitly asked the PSST to make a decision based on the “documents, background and statements” previously provided, as set out at paragraph 8 of the decision:

8 On September 21, 2011, a day before the start of the hearing, the complainant notified the parties by email that he was on a one-year sabbatical and outside the country. Regarding the hearing scheduled for the next day, the complainant added: “Unfortunately, I cannot attend the hearings and I defer to the Tribunal’s impartial judgment on the basis of the documents, background and statements that I provided when I made my complaint and that are complete” [translation].

 

[27] The decision continues as follows at paragraphs 11 to 14:

11 The Tribunal is master of its own procedures in its capacity as an administrative tribunal. According to section 99(1)(d) of the PSEA, the Tribunal can “accept any evidence, whether admissible in a court of law or not.” In addition, section 29 of the Public Service Staffing Tribunal Regulations, SOR/2006-6, as amended by SOR/2011-116, stipulates that if a party does not appear at the hearing and the Tribunal is satisfied that notice of the hearing was sent to that party, the Tribunal may proceed with the hearing and dispose of the complaint without further notice.

12 In this case, there is no doubt that the complainant was notified of the date, time and location of the hearing.

13 As acknowledged by the Tribunal in Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, at paras. 49, 50 and 55, complainants have the burden of proof with respect to complaints of abuse of authority before the Tribunal. It follows that complainants must prove, on a balance of probabilities, their allegations of abuse of authority. In order to discharge the burden, evidence must be submitted in support of the allegations. In Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 0020, the Tribunal specified that:

[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. The fact that the complainant disagrees with the selection board’s decision as to whether the complainant had the required experience in two fields does not amount to abuse of authority and is clearly insufficient for the complaint to succeed.

14 In this case, the Tribunal finds that the complainant did not submit any evidence in support of his allegations. In his letter of September 21, 2011, he referred to the documents submitted with his complaint. On their face, the documents in no way support his allegations. Given that the complainant did not submit any evidence in support of his allegations, he failed to substantiate his complaint. The complaint is thus dismissed.

 

[28] Schmid v. The Commissioner of Correctional Service of Canada, 2012 PSST 30, also dealt with a situation in which the complainants did not appear at the hearing of their staffing complaints and did not advise that they would not appear. The PSST held the following at paragraphs 13 to 15:

13 In Tibbs v. Deputy Minister of National Defence, 2006 PSST 0008, the Tribunal determined that it is the complainant who bears the burden of proof in hearings before the Tribunal (see paras. 49, 50 and 55). For a complainant to meet this burden, he must present sufficient evidence for the Tribunal to determine, on a balance of probabilities, whether a finding of abuse of authority is warranted.

14 In Broughton [Broughton v. Deputy Minister of Public Works and Government Services, 2007 PSST 20], the Tribunal found at para. 50 that “(i)t 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.”

15 In the present case, the complainants have submitted allegations but they have not tendered evidence to support these allegations. Therefore, the Tribunal finds that the complainants have not met the burden of proving an abuse of authority in the choice of a non-advertised appointment process or an abuse of authority in the application of merit.

 

[29] The Board also addressed this more recently in Watson v. Deputy Minister of Public Works and Government Services, 2021 FPSLREB 122, in which two complainants did not appear for their hearing:

...

[20] A complainant bears the burden of proof in a staffing complaint before the Board. (See Tibbs v. Deputy Minister of National Defence, 2006 PSST 8 at para. 50.) The standard of proof is the balance of probabilities.

[21] Allegations do not serve as proof. Participating in the hearing process and presenting convincing 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.)

[22] 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....

[23] In this case, no evidence was presented to the Board by or on behalf of the complainants. In the absence of evidence to support the allegations, I find that the complainants failed to discharge the burden of proof.

[24] In addition, 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 that, among other things, the public interest and efficient administration of justice are factors to be considered when determining whether a complaint has been abandoned.

...

 

[30] The complainant in this case decided not to attend the hearing and so advised the Board at 12:36 a.m. (EDT) on the first hearing day. Her claim that she was on travel status was inconsistent with her conduct right up to the Friday afternoon before the hearing, when she received the videoconferencing link from the Board and had informal discussions with the respondent. She did not mention to either the Board or the respondent that she would be on travel status and that she would be unavailable for the hearing. If the travel status arose at the last minute and was urgent, she did not indicate that in her letter.

[31] The complainant knew what to do if her hearing was scheduled for a time when she would be unavailable. On March 29, 2023, the Board scheduled a hearing for July 27 and 28, 2023. Within days, on April 4, 2023, the complainant asked that the hearing be postponed as she was to be on annual leave at that time and the Board rescheduled it for October 3 and 4, 2023.

[32] This time, the complainant decided not to appear and asked the Board to simply consider her written allegations and submissions. The Board did consider them; however, allegations do not constitute evidence. The Board can determine matters only on the basis of evidence, especially when the complaints allege that the respondent engaged in bad faith and personal favouritism.

[33] The complainant had the burden of proof. It could be met only by presenting evidence to support her allegations and submissions. As none were presented, she failed to meet her burden.

[34] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

III. Order

[35] The complaints (Board file nos. 771-02-41726 and 41751) are dismissed.

June 25, 2024.

Nancy Rosenberg,

a panel of the Federal Public Sector

Labour Relations and Employment Board