Date: 20241122
File: 561-03-42211
Citation: 2024 FPSLREB 162
Labour Relations Act
|
Between
Louis-Arthur Langlois
Complainant
and
Professional Institute of the Public Service of Canada
Indexed as
Langlois v. Professional Institute of the Public Service of Canada
Before: Pierre Marc Champagne, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Sidrah Usmani, counsel
For the Respondent: Fiona Campbell, counsel
Decided on the basis of written submissions,
filed October 20 and November 19, 2020, December 22, 2023,
and January 12 and 30, 2024.
REASONS FOR DECISION |
I. Complaint before the Board
[1] On October 20, 2020, Louis-Arthur Langlois (“the complainant”) made this complaint to the Federal Public Sector Labour Relations and Employment Board (“the Board”) under s. 190(1)(g) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”). He alleges that the Professional Institute of the Public Service of Canada (“the respondent”) breached its duty of fair representation set out in s. 187 of the Act when it allegedly ignored his request to file a grievance.
[2] Some documents attached to the initial complaint form, as well as some further submissions, also suggest that the respondent failed to fully represent the complainant’s interests at a hearing that took place in 2018, following which he alleges he was coerced into agreeing to a settlement.
[3] The respondent denies those allegations and asks the Board to summarily dismiss the complaint as it is untimely or, alternatively, would not demonstrate the existence of an arguable case of a breach of s. 187 of the Act.
[4] Section 22 of the Federal Public Sector Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) allows the Board to decide any matter before it without holding an oral hearing (see Walcott v. Public Service Alliance of Canada, 2024 FCA 68 at para. 4). Since the parties had the opportunity to file additional submissions, I am satisfied that it is possible to decide the respondent’s preliminary request on the basis of the documents on file as well as the parties’ written submissions.
[5] For the following reasons, I find that the complaint is untimely.
II. Summary of the facts
[6] The complainant was employed by the Canadian Nuclear Safety Commission (“the employer”) from 2006 until he was terminated in 2015. Before he was terminated, he became aware of an incident that allegedly occurred in 2009 in one of the employer’s nuclear power plants.
[7] The complainant considered that as he was working when the alleged incident took place, he should not have discovered its existence years later, as the employer had a legal obligation to distribute a report in accordance with some regulations applicable in such circumstances.
[8] Before and after the complainant was terminated in 2015, the respondent filed different grievances on his behalf and provided its support and representation. Those grievances were eventually referred to the Board for adjudication, and a hearing was held in February and April 2018.
[9] After those hearing dates, a mediation process was initiated in August 2018, and the parties entered into a settlement agreement (“the 2018 agreement”), following which the respondent withdrew the grievances, in December 2018.
[10] In December 2019, the complainant discovered so-called “new information” with respect to what he perceived were additional wrongdoings by the employer. He believed that they were not covered by the terms of the 2018 agreement. Therefore, he asked the respondent to file a new grievance based on the information that he had discovered, but it declined his request in January 2020, as it believed that the new information was indeed covered by the 2018 agreement.
[11] The complainant understood that he had to establish a factual basis to demonstrate that the respondent was wrong and that a new grievance could or should be filed. He hired a lawyer to assist him in a fact-finding exercise and made several requests to the employer pursuant to some access-to-information legislation (“the ATIP requests”).
[12] From early March to August 26, 2020, the employer was in communication with the complainant’s lawyer and provided information in response to the ATIP requests. In the meantime, on July 6 and 7, 2020, his lawyer wrote to the respondent and outlined its failure to adequately represent the complainant before, during, and after the hearing in 2018 and during the discussions that led to the 2018 agreement. The lawyer also noted that the respondent ignored several meeting requests that the complainant made earlier in 2020 and therefore reiterated the request for a meeting to discuss a grievance that he wished to file against the employer.
[13] On July 9, 2020, counsel for the respondent informed the complainant’s lawyer that it would not consider any further grievances or complaints on his behalf. On October 20, 2020, his lawyer sent a last email to the respondent to follow up on his request of July 7, 2020. On the same day, and without waiting for a response from the respondent, the lawyer made this complaint to the Board.
III. Summary of the arguments
A. For the complainant
[14] The complainant submits that his interests were not properly represented in the negotiations that led to the 2018 agreement. That settlement was reached on basis of the facts that he was aware of at the time. He suggests now that the employer exerted pressure on the respondent in its effort to conceal the alleged incident that occurred in 2009.
[15] The complainant is of the opinion that the respondent deliberately obstructed his access to necessary information and that it ensured that he could not uncover evidence that would have substantiated his allegations against the employer. As he became aware of a new report in December 2019, he immediately reached out to the respondent to file a new grievance.
[16] However, the respondent repeatedly failed to file the grievance, which therefore deprived him of the opportunity to use “the corrective powers” of an additional grievance as a way to address the employer’s serious wrongdoings. He was forced to retire earlier than intended.
[17] While in his submissions the complainant states clearly that on July 9, 2020, he discovered that the respondent would not file a new grievance, he still argues that his complaint is timely, as “the clock started running” only from August 25, 2020, the date on which he received the last piece of evidence to support his request to file a new grievance. He suggests that that is the date on which he knew or ought to have known of the circumstances giving rise to his complaint, which therefore would fall within the 90-day period prescribed by s. 190(2) of the Act.
[18] In the alternative, the complainant submits that s. 190(4)(b) provides that the Board has jurisdiction to make exceptions to the full scope of s. 190, including the time limits for making a complaint like this one. Therefore, the Board should use its discretion to allow him to move forward with his complaint. He also suggests that a 13-day delay should not warrant rejecting his case, considering the undue harm that that would cause him.
[19] As for the merits of his complaint, the complainant submits that the 2018 agreement should be set aside, as it was signed improperly. He claims that he was pressured by the respondent, and that some information was intentionally hidden from him. He refers to Topping v. Deputy Head (Department of Public Works and Government Services), 2014 PSLRB 74, to support his position.
[20] The complainant also submits that the respondent’s decision not to pursue a new grievance was arbitrary, as it failed to properly consider the scope of the grievance and the supporting information that it possessed. Therefore, its conduct would be comparable to that of the employer in Taylor v. Public Service Alliance of Canada, 2015 PSLREB 35.
[21] Finally, he submits that even if a bargaining agent has broad discretion and benefits from strong deference with respect to deciding whether to support one of its members’ grievances, when the respondent made the decision not to file a new grievance, it failed to read a specific document that he believes to be particularly important. Its failure to do so made that decision arbitrary and tainted by bad faith.
B. For the respondent
[22] The respondent submits that under s. 190(2) of the Act, a complaint must be made to the Board no later than 90 days after the date on which the complainant knew or ought to have known of the action or circumstances giving rise to it. The Board’s jurisprudence has held that that time limit is mandatory and that it may be extended only in very limited and exceptional circumstances.
[23] The allegations with respect to the respondent’s failure to fairly represent the complainant in the grievance process that led to a hearing and to the signature of the 2018 agreement clearly fall outside the mandatory 90-day period prescribed by s. 190(2). The respondent’s refusal to file a new grievance, which its counsel communicated on July 9, 2020, is also outside the 90-day period.
[24] While the complainant suggests that the clock should have started running only from August 25, 2020, he did not allege that the information that he received on that day had ever been provided or communicated to the respondent. Nor were any allegations made of any communication between the complainant or his lawyer and the respondent about filing a new grievance between July 9, 2020, and the date of this complaint.
[25] The email from the complainant’s lawyer’s that the respondent received on October 20, 2020, just before the complaint was made, referred only to the lawyer’s July 7, 2020, email. The respondent submits that in Éthier v. Correctional Service of Canada, 2010 PSLRB 7, the Board’s predecessor held that a time limit cannot be extended by subsequent attempts to try to have a union change its decision.
[26] The respondent further submits that the complainant’s suggestion that s. 190(4)(b) of the Act would give the Board the discretion to extend the time limit prescribed in s. 190(2) is wrong. That discretion applies only to complaints made under s. 188(b) or (c) of the Act, which the Board has already recognized in Nash v. Public Service Alliance of Canada, 2023 FPSLREB 64.
[27] With respect to the merits of the complaint, the respondent submits that the complainant’s submissions contain only very general allegations or accusations that do not allow the Board to conclude that s. 187 of the Act was breached and do not specify how that alleged conduct would have been arbitrary, discriminatory, or in bad faith.
[28] The respondent also submits that it has not ignored any request from the complainant to file a new grievance but rather that it promptly responded and declined such a request on July 9, 2020. While he claims that in the letter dated July 6, 2020, his lawyer provided new information to the respondent that supported filing a new grievance, this is not correct. The respondent submits that notably, he still has not provided any information or coherent arguments to support his suggestion that it would have been appropriate to file a new grievance.
[29] Therefore, the respondent takes the position that there is nothing in the complaint, the complainant’s submissions, or the documents that he provided to the Board that could demonstrate the existence of an arguable case under s. 187 of the Act.
C. The complainant’s rebuttal
[30] In rebuttal to the respondent’s reference to the fact that he still has not provided any information that would support his request to file a new grievance, the complainant submits that it did not make any requests for such information.
IV. Analysis
[31] This complaint was made under s. 190(1)(g) of the Act and is based on allegations that the respondent breached its duty of fair representation under s. 187. As the respondent requests that it be dismissed without an oral hearing, an analysis would normally be required to determine whether the complainant’s allegations, if taken as true, would be sufficient to amount to an arguable case that the respondent acted in a way that was arbitrary, discriminatory, or in bad faith.
[32] However, the respondent also submits that the complaint should be dismissed as it is untimely. I will first address that objection.
[33] As prescribed by s. 190(2) of the Act, a complaint made under s. 187 must be made no later than 90 days after the complainant knew or ought to have known of the actions or the circumstances that gave rise to it. As this complaint was made to the Board on October 20, 2020, it could not have been based on factual allegations that occurred before July 22, 2020 (see Ennis v. Meunier-McKay, 2012 PSLRB 30 at para. 30; and Perron v. Customs and Immigration Union, 2013 PSLRB 13 at para. 23).
[34] In Beaulieu v. Public Service Alliance of Canada, 2023 FPSLREB 100, the Board stated that the time limit could be extended in very exceptional and limited situations, when it is convinced that the complainant could have neither anticipated nor controlled the cause of the delay. The complainant in this case does not assert that there exist any such exceptional circumstances.
[35] Rather, the complainant submits that s. 190(4)(b) of the Act would also allow the Board to extend the time limit imposed by s. 190(2). As the respondent rightfully submitted, the Board has already ruled in some of its decisions that ss. 190(3) and (4), referred to in s. 190(2), do not apply to a duty-of-fair-representation complaint made under s. 187 (see Nash, at para. 18; and Burns v. Unifor, Local 2182, 2020 FPSLREB 119 at paras. 122 and 123).
[36] The complainant’s submissions also vaguely suggest that some of his complaint’s imperfections could be excused because he was self-represented when it was made. As noted in Beaulieu, the lack of knowledge of an available legal recourse does not meet the standard of an exceptional or unusual circumstance. At any rate, this bald suggestion is clearly contradicted by the complaint form itself, which is signed by the lawyer whom he retained in 2020 and who was still involved in his file on the day the complaint was made, as demonstrated by an email sent to the respondent on that same day.
[37] As noted earlier in this decision, the complainant clearly makes the following affirmation in his submissions: “On or about July 9, 2020, Mr. Langlois discovered that PIPSC would not file his third grievance. On October 20, 2020, Mr. Langlois filed his complaint.”
[38] This unequivocal statement comes immediately after the complainant’s acknowledgement that on that same day, the respondent’s legal counsel informed his lawyer that it would not consider any further grievances or complaints on his behalf.
[39] However, elsewhere in his submissions, the complainant submits that in January 2020, the respondent advised him that it could not file a grievance on his behalf. He further mentions that during that same period, the lawyer whom he retained around January 25, 2020, requested again that the respondent file a grievance, without success. Finally, the complaint form, which his lawyer at the time signed, indicates that the date on which he knew of the act, omission, or matter giving rise to the complaint was October 20, 2020, which was the date on which the complaint was made to the Board.
[40] Based on those submissions and the documents that the complainant submitted to support his complaint, I could find that he knew or ought to have known as early as January 2020 that the respondent would not file the grievance that he wanted to pursue. But he suggests that he took that refusal as an invitation to enter into a fact-finding enterprise to substantiate his position and convince the respondent that it was wrong.
[41] Be that as it may, I cannot see how the complainant could not have seen the clear language that the respondent’s counsel used on July 9, 2020, as a complete and definitive refusal to undertake any further action or representation on his behalf with respect to the matters that he wanted the respondent to consider. I find it important to reproduce as follows the text of that communication, which the complainant’s lawyer received on that date and that in his submissions, the complainant acknowledges receiving:
…
Your letters of July 6 and 7, 2020 have been forwarded to my attention. Please direct any further correspondence on this matter to my attention.
It is our position that the Institute has fully discharged its duty of fair representation owed to Mr. Langlois and that our representation of [sic] his behalf resulted in a very favourable settlement for him. The full and binding settlement agreement remains in effect and as such, the Institute will not consider any further grievances and/or complaints on behalf of Mr. Langlois.
…
[42] Moreover, it is important to note that the letters from the complainant’s lawyer dated July 6 and 7, 2020, which are referred to in this response, were attached as supporting documents to the complaint form submitted to the Board on October 20, 2020. Therefore, I conclude that he knew or ought to have known on July 9, 2020, of the actions or the circumstances giving rise to his complaint.
[43] The complainant’s current representative suggests that the “clock should start running” only from August 25, 2020, when the last piece of documentation was received from the employer in response to the numerous ATIP requests. Respectfully, this position is groundless.
[44] The triggering point for the calculation of the time limit prescribed by s. 190(2) of the Act is clear. It starts when the complainant knew or ought to have known of the relevant circumstances of his complaint, not when he was satisfied with the documentation that he received and that could, according to him, eventually substantiate his allegations.
[45] The complainant alleges that the employer made multiple attempts to delay the release of information and to block access to certain documents. But his submissions and the supporting documentation set out that between April and August 2020, he received from the employer numerous responses to the ATIP requests. While he seems to focus on the ones he received in August, he mentions in his submissions that he became aware in December 2019 of the employer’s additional alleged wrongdoings that prompted him to ask the respondent to file a new grievance.
[46] More importantly, the complainant’s submissions suggest that the respondent’s decision should be seen as arbitrary, as it failed to consider the scope of such a grievance while it had the information required to understand it. He alleges that his lawyer provided that information to the respondent on July 6, 2020, in a letter “laying out the new information”. He further suggests that the employer’s commission secretary confirmed the new information to his lawyer on June 8, 2020.
[47] The complainant makes no submissions and introduces no supporting documents to demonstrate how what he received in August 2020 was crucial and determinative to his understanding of the situation. Nor is it submitted that such a potentially new perception or understanding from him was ever brought to the respondent’s attention, to see if that would make it change its position.
[48] At any rate, the Board’s jurisprudence has often recognized that once the complainant knew or ought to have known of the circumstances that gave rise to their complaint, the counter began rolling, and it cannot be extended by further attempts to convince the respondent or to prove it wrong. In this case, I already concluded that it happened in July 2020, if not in January 2020 (see Vaxvick v. Public Service Alliance of Canada, 2023 FPSLREB 14 at para. 37; Besner v. Public Service Alliance of Canada, 2023 FPSLREB 56 at para. 69; Éthier, at para. 21; and Nemish v. King, 2020 FPSLREB 76 at para. 37).
[49] In fact, the only other communication from the complainant to the respondent that is referred to in his submissions is his lawyer’s email on the same date on which the complaint was made to the Board. That email simply refers to the last communication that that lawyer sent to the respondent on July 7, 2020, and asks for follow up with respect to the request that was then made for representation. Although that email suggests that the respondent did not respond to his earlier request, he acknowledges in his submissions that indeed, on July 9, 2020, he received the response from the respondent’s counsel that was reproduced earlier in this decision.
[50] The email dated October 20, 2020, from the complainant’s lawyer to the respondent, asking for a reply to the July 7 email and being attached as supporting documentation to this complaint, seems to be another attempt to place the complaint within the 90-day period prescribed by s. 190(2) of the Act. It was sent not long before the complaint form was submitted to the Board, without waiting for a response from the respondent. That might explain why the complaint form set out the date on which the complaint was made as the date on which the complainant would have become aware of the circumstances giving rise to it.
[51] As for the complainant’s multiple allegations that the respondent did not fulfil its duty of fair representation at the hearing of his grievances in 2018 or in the negotiations for and the conclusion of the 2018 agreement, it goes without saying that they are untimely, as it all happened two years, give or less, before he made this complaint to the Board.
V. Conclusion
[52] The complainant’s submissions contain multiple allegations against the employer. I considered those for context when necessary but did not consider them in my determination of this case, as this complaint is against the respondent, not the employer (see Burns, at paras. 81 and 164; Archer v. Public Service Alliance of Canada, 2023 FPSLREB 105 at paras. 14 and 61; and Hancock v. Professional Institute of the Public Service of Canada, 2023 FPSLREB 51 at para. 6).
[53] In fact, it seems that the complainant’s main objective with this complaint was to revive some, if not most, of his previous matters with the employer. This is even more obvious when he pleads for the Board to set aside the 2018 agreement and states in his submissions that he seeks an order directing that the grievances he settled in that agreement “be appealed in a new arbitration”. However, he must understand that a complaint that a bargaining agent allegedly failed to satisfy its duty of fair representation is not meant to raise and address his matters with the employer (see Corneau v. Association of Justice Counsel, 2023 FPSLREB 16 at para. 95).
[54] Considering my conclusions that the complaint is untimely, I need not continue my analysis with respect to the other grounds that the respondent advanced in its preliminary request for a summary dismissal.
[55] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
VI. Order
[56] The respondent’s objection to timeliness is allowed.
[57] The complaint is dismissed as untimely.
Pierre Marc Champagne,
a panel of the Federal Public Sector
Labour Relations and Employment Board