Date: 20250117

File: 561-02-49966

 

Citation: 2025 FPSLREB 4

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

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

Between

 

Cory Cayen

Complainant

 

and

 

Public Service Alliance of Canada

 

 

Respondent

Indexed as

Cayen v. Public Service Alliance of Canada

In the matter of a complaint made under section 190 of the Federal Public Sector Labour Relations Act

Before: Christopher Rootham, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Complainant: Himself

For the Respondent: Morgan Rowe and Sarah Yusuf, counsel

Decided on the basis of written submissions,
filed June 25 and 27, October 18, and November 15, 2024.

REASONS FOR DECISION

I. Overview

[1] Cory Cayen has made a complaint alleging that the Public Service Alliance of Canada (PSAC) violated its duty of fair representation towards him. Mr. Cayen became ill after receiving the COVID-19 vaccine in November 2021, which he says he did only because his employer required him to. He wanted PSAC to file a grievance against his employer as a result. He also asked for PSAC’s assistance to help him return to work from the illnesses that he suffers from. PSAC told him that it would not file a grievance on July 18, 2023, but that it would continue to assist him in his effort to return to work. Mr. Cayen’s lawyer sent a demand letter on August 18, 2023, threatening to make a duty-of-fair-representation complaint unless PSAC moved forward with a grievance. PSAC responded on September 22, 2023, to deny breaching its duty of fair representation, explain why it was not filing a grievance, and continue to offer assistance for Mr. Cayen to return to work.

[2] Mr. Cayen made this complaint on June 3, 2024. The time limit in which to make a duty-of-fair-representation complaint is 90 days after the facts that gave rise to it. This complaint was made outside the 90-day time limit, whether the deadline dates from the July 18, 2023, email or the letter of September 22, 2023.

[3] The Federal Public Sector Labour Relations and Employment Board (“the Board”) has the power to extend that time limit in extremely limited circumstances, including when a medical condition renders a complainant incapacitated and unable to make a complaint. Mr. Cayen has described a number of serious medical symptoms that he suffers from. However, he was medically well enough to retain and instruct his lawyer to send a demand letter on August 18, 2023. Therefore, I have concluded that he was not so medically incapacitated that he could not make a complaint against PSAC during the 90-day period running in 2023.

[4] Therefore, I have dismissed this complaint. My detailed reasons follow.

II. Facts that led to the complaint

[5] Mr. Cayen began working for Service Canada in June 2016 or 2017. On October 6, 2021, the Treasury Board enacted the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police (“the Vaccine Policy”). The Vaccine Policy required all employees in the core public administration to be fully vaccinated against COVID-19. Mr. Cayen received the COVID-19 vaccine on November 28, 2021.

[6] Almost immediately after receiving the vaccine, Mr. Cayen began to experience a number of physical medical symptoms. Mr. Cayen has filed some medical information with the Board in this complaint. That medical information does not state conclusively that his medical conditions are the result of being vaccinated, but they do not rule it out either. Mr. Cayen also suffers from a number of mental health symptoms. The medical information he has provided does not link his mental health symptoms to being vaccinated, but those documents also are clear that the precise diagnosis and cause of his medical symptoms remain unknown, even to the present day.

[7] Mr. Cayen left work for medical reasons almost immediately after being vaccinated. He has never returned. On April 24, 2023, his employer sent him a letter asking him to choose between returning to work, retiring on medical grounds, and resigning. Mr. Cayen states that he wanted to return to work. To date, he remains unable to do so, for medical reasons.

[8] Mr. Cayen first contacted PSAC in December 2021 to seek its assistance about his medical conditions and vaccination. He corresponded with two PSAC representatives, one between December 2021 and July 14, 2022, and the second between January and July 2023. After he received the employer’s letter of April 24, 2023, he discussed his return-to-work issues with his representative after that date as well. The parties dispute the nature of this correspondence; PSAC says that it was diligently following up with Mr. Cayen and asking for more information, while Mr. Cayen characterizes it as indifference and as being pushed away by demanding more information.

[9] At this stage, the only issue is whether the complaint was made in time. Therefore, I do not need to decide whether the correspondence was appropriate — all I need to know are its dates.

[10] On July 18, 2023, Mr. Cayen’s representative sent him an email that stated, among other things, this: “… I do not see a path for a grievance or labour code complaint that could be successful”, about what the parties call the “Forced Vaccination” issue. His representative also stated that there were things that they could do about the April 24, 2023, “options letter” but that Mr. Cayen had to “keep [the representative] posted” about the options letter. His representative wrote again on July 25, 2023, in response to Mr. Cayen’s questions about medical and long-term disability benefits and to ask again about whether Mr. Cayen ever responded to the options letter. He also recommended that they file a grievance about the options letter.

[11] That appears to be the last correspondence directly between Mr. Cayen and PSAC.

[12] On August 18, 2023, Mr. Cayen’s lawyer sent a demand letter to PSAC, alleging that it violated its duty of fair representation. The demand letter stated specifically that unless PSAC filed a grievance against the employer, “… we will seek instructions from our client to move forward with a duty to fair representation claim against the Union” [sic throughout].

[13] PSAC replied to that letter on September 22, 2023. PSAC denied having breached its duty of fair representation. PSAC also reiterated that it would not file a grievance about the so-called “Forced Vaccination” but that it was still prepared to file a grievance about the options letter.

[14] According to PSAC, it never heard from Mr. Cayen after sending that letter. Mr. Cayen does not dispute that.

III. The complaint is late

[15] A duty-of-fair representation complaint is made under s. 190(1)(g) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2, “the Act”). The complaint alleges a breach of s. 187, which places an obligation on a bargaining agent not to act in a manner that is arbitrary, discriminatory, or in bad faith. This obligation is commonly referred to as the bargaining agents’ duty of fair representation, and a complaint like this one is a duty-of-fair representation complaint.

[16] A complaint made to the Board under those provisions must be made within the time limit set out by s. 190(2) of the Act — which is no later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to it.

[17] Mr. Cayen made this complaint on June 3, 2024. PSAC says that it was late. PSAC points out that his lawyer’s demand letter, dated August 18, 2023, alleges that PSAC breached its duty of fair representation — meaning that he knew or ought to have known about the circumstances leading to this complaint by that date. At worst, he knew by September 22, 2023, what PSAC was, and was not, prepared to do.

[18] Mr. Cayen does not dispute that his complaint was filed late.

[19] I agree with PSAC that this complaint was made beyond the 90-day time limit to do so. By August 18, 2023, Mr. Cayen knew about the circumstances giving rise to this complaint because his lawyer sent a demand letter on his behalf spelling out his case. This makes his complaint late.

IV. The Board cannot extend the time limit in this case

[20] The Board has long stated that the 90-day time limit is mandatory and cannot be extended (see Paquette v. Public Service Alliance of Canada, 2018 FPSLREB 20; Nemish v. King, 2020 FPSLREB 76; Burns v. Unifor, Local 2182, 2020 FPSLREB 119; Marcil v. Public Service Alliance of Canada, 2022 FPSLREB 65; and Tremblay v. Canadian Association of Professional Employees, 2023 FPSLREB 69).

[21] However, in Beaulieu v. Public Service Alliance of Canada, 2023 FPSLREB 100, the Board decided that it could extend that time limit in rare cases. I will repeat the Board’s decision because it explains the very limited situations in which the Board can extend the 90-day time limit:

…

[38] The apparent contradiction between granting an explicit power to extend time limits for some sections of the Act (but not s. 190) and an implicit power to relieve a party from its failure to meet the 90-day time limit for complaints made under s. 190 is easily resolved. The implicit power, as the Federal Court of Appeal articulated in P.S.A.C., is very limited and does not engage balancing fairness with prejudice. This implicit power is to be used only in truly exceptional or unusual cases. The Federal Court of Appeal used the terminology of “… accident, force majeure or Act of God …”. The meaning behind those words is clear: the delay must have arisen from an extraordinary event that was out of the control of the party that missed the time limit. Each case must be decided on its own facts, but relieving a party from its failure to comply with a statutory time limit under this implicit power will be rare and will be used only in exceptional or unusual circumstances. I agree with the Federal Court of Appeal that there is no harm to statutory interpretation or Parliament’s intent to relieve a party from the consequences of non-compliance in exceptional circumstances “where, through no fault or shortcoming” of the complainant, the making of the complaint was delayed.

[39] The Federal Court of Appeal in P.S.A.C. referred to accident, “Act of God”, and “force majeure”. Relief could be granted if a complainant was incapacitated due to an accident or serious illness, for example. In my view, “Act of God” is an archaic term that is adequately captured by this definition of “force majeure” (see Black’s Law Dictionary, 8th ed.): “… [a]n event or effect that can be neither anticipated nor controlled …”. Examples of such events could include natural disasters or infrastructure failures (fires, floods, and blackouts, for example). This list is not exhaustive.

…

[41] I would articulate the appropriate test for relief for a failure to meet the 90-day time limit under s. 190 of the Act as follows: the Board may consider relieving a party from its failure to comply with the 90-day deadline to make a complaint if there was a good cause for the delay that could have been neither anticipated nor controlled. As noted, this implicit power is to be exercised only in exceptional or unusual circumstances.

…

 

[22] The Board emphasized that it can extend the 90-day time limit only in “truly exceptional or unusual cases.” Those exceptional cases may include cases involving medical issues. However, the Board was also clear that the complainant had to have been “incapacitated” to trigger that exception.

[23] In Beaulieu, like in this case, the complainant argued that his medical condition incapacitated him from making the complaint. He argued that since he was on long-term disability, he must have been too disabled to make a complaint. The Board explained that the standard is higher than being too ill to work. The threshold is whether a complainant is “… so incapacitated that he could not initiate legal proceedings …” (at paragraph 54).

[24] Mr. Cayen has provided some medical information to the Board as part of his complaint. That medical information is not sufficiently detailed to support an extension of time. I am concerned in particular that all Mr. Cayen has provided is half of 1 page of a 17-page mental health report that appears to be from September 6, 2022 (a year before he says his complaint arose), and his application for medical retirement which his doctor filled out on June 25, 2024. I am also concerned because that 2024 medical retirement form states that Mr. Cayen is not taking any medication, yet he states in his written submissions that he is experiencing “serious brain fog” because he is taking 10 to 12 tablets of heavy medication each day; he does not explain this inconsistency.

[25] Most importantly, Mr. Cayen instructed his lawyer to send a demand letter dated August 18, 2023. This means that he must have had the medical capacity to instruct counsel.

[26] In Carmichael v. GlaxoSmithKline Inc., 2020 ONCA 447 (leave to appeal to the Supreme Court of Canada dismissed 2021 CanLII 24831), the Ontario Court of Appeal set out a number of factors to consider when deciding whether a person had the capacity to commence a proceeding within a limitation period. In Ontario, most court claims must be commenced within 2 years. That 2-year limitation period does not run during any time that a person is “… incapable of commencing a proceeding in respect of the claim because of his or her physical, mental or psychological condition …” (see the Ontario Limitations Act, 2002, S.O. 2002, c. 24, Sched. B, s. 7(1)(a)). Carmichael involves a tragic case. On July 31, 2004, Mr. Carmichael strangled to death his 11-year-old son. He was found not criminally responsible on account of a mental disorder. He received treatment and was eventually given an absolute discharge on December 2, 2009. Mr. Carmichael claimed that the anti-depressant drug that he was taking at the time was responsible for his actions and he sued the manufacturer of that drug on October 5, 2011. He claimed that he was incapable of commencing that claim until his absolute discharge on December 2, 2009.

[27] The Ontario Court of Appeal disagreed. That Court adopted seven indicators of capacity (see paragraphs 70 and 96): 1) a person’s ability to know or understand the minimum choices or decisions required to make them; 2) an appreciation of the consequences and effects of his or her choices or decisions; 3) an appreciation of the nature of the proceeding; 4) a person’s ability to choose and keep counsel; 5) a person’s ability to represent himself or herself; 6) a person’s ability to distinguish between relevant and irrelevant issues; and 7) a person’s mistaken beliefs regarding the law or court procedures. The Court of Appeal was clear that these factors are not exhaustive, but they are helpful indicators of capacity because they provide “… concrete and objectively verifiable indicators of a potential litigant’s capacity to commence an action …”.

[28] In that case, the Ontario Court of Appeal relied heavily on the fact that Mr. Carmichael was able to work with and instruct lawyers for his criminal proceedings, and he even met with a lawyer from the United States to discuss the possibility of a lawsuit against the manufacturer of that anti-depressant. The Court of Appeal quoted from a passage in Calvert (Litigation Guardian of) v. Calvert, 1997 CanLII 12096 (ON SC) stating that “[t]he capacity to instruct counsel involves the ability to understand financial and legal issues. This puts it significantly higher on the competency hierarchy.”

[29] In other words, if a person is able to instruct their lawyer about an issue, this is a very strong indicator that they have the medical capacity to make a complaint about that same issue. Capacity is a matter of degree. A person may be capable of making a basic decision but incapable of making a complex decision. Making a complaint with the Board can be a complex decision; however, finding, hiring, and instructing a lawyer is also complex.

[30] In conclusion, I do not have enough evidence to conclude that Mr. Cayen lacked the medical capacity to make this complaint on time. In particular, he was capable of finding, hiring, and instructing a lawyer during the 90-day time limit to make this complaint. While it is possible that a person could hire a lawyer while medically incapacitated, it does lead to an inference that they have the capacity to commence a claim, and there is no evidence in this case to refute that inference.

[31] Mr. Cayen made two other submissions to explain the delay in making his complaint. First, he also argued that he was unable to continue using his lawyer because of the “… extreme financial distress these legal proceedings have left [him] in.” Being unable to afford a lawyer is entirely understandable, but it is not the type of exceptional or unusual situation that would give the Board the power to extend the 90-day time limit.

[32] Second, he argued that he did not understand the complaint process. His submissions are not detailed about this point, but he mentions attempting to make complaints in the Ontario Labour Relations Board and being confused about how to make this complaint with the Board. However, as the Board stated at paragraph 56 of Beaulieu, “[l]ack of knowledge of an available legal recourse also does not meet the standard of an exceptional or unusual circumstance.”

[33] I am very sympathetic to Mr. Cayen’s medical conditions as well as the other personal circumstances he described in his submissions, and I wish him every hope for his recovery. However, I must still dismiss his complaint because it is untimely.

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

(The Order appears on the next page)

V. Order

[35] The complaint is dismissed.

January 17, 2025.

Christopher Rootham,

a panel of the Federal Public Sector

Labour Relations and Employment Board