Date: 20250123

File: 568-34-50024

XR: 566-34-49617

 

Citation: 2025 FPSLREB 6

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

 

SHIOW (SHARON) HO

Applicant

 

and

 

CANADA REVENUE AGENCY

 

Respondent

Indexed as

Ho v. Canada Revenue Agency

In the matter of an application for an extension of time referred to in section 61(b) of the Federal Public Sector Labour Relations Regulations

Before: Brian Russell, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Applicant: Yuseph Katiya and Nasim Amiri, Public Service Alliance of Canada

For the Respondent: Nicholas Gualtieri

Decided on the basis of written submissions,

filed May 22, June 6 and 20, July 10, November 13, and December 13, 2024.

REASONS FOR DECISION

I. Application before the Board

[1] On April 24, 2024, Shiow (Sharon) Ho (“the applicant”) referred a grievance to adjudication with the Federal Public Sector Labour Relations and Employment Board (“the Board”) under s. 209(1)(b) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”). The applicant alleges that she was subjected to disguised disciplinary action that resulted in a financial penalty.

[2] The grievance is with respect to the decision by the Canada Revenue Agency (“the respondent”) to place her on unpaid leave, in accordance with its Policy on COVID-19 Vaccination for the Canada Revenue Agency (“the Policy”), because of her decision to not be vaccinated and to not disclose her vaccination status per the Policy.

[3] On May 22, 2024, the respondent raised two preliminary objections that the Board is without jurisdiction to hear the grievance, first because it is untimely, and second because its decision to place the applicant on unpaid leave did not constitute disciplinary action per s. 209(1)(b) of the Act. It requested that the matter be dismissed without a hearing, for lack of jurisdiction.

[4] On June 6, 2024, the applicant made this application for an extension of time.

[5] Per 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] This decision deals with the application for an extension of time. The objection with respect to the decision to place her on unpaid leave did not constitute disciplinary action and will not be addressed in this decision. To decide the objection, a review of the facts and the evidence with respect to the grievance is necessary and will be addressed at the hearing on the merits.

[7] For the reasons that follow, I grant the applicant’s application for an extension of time, in the interest of fairness.

II. Summary of the evidence

[8] On October 6, 2021, the federal government introduced the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police, which required all employees in the core public administration to be fully vaccinated unless they were granted an exemption based on a prohibited ground of discrimination under the Canadian Human Rights Act (R.S.C., 1985, c. H-6; “CHRA”). This policy did not apply to the applicant.

[9] On November 8, 2021, the Policy came into effect and applied to all employees working for the respondent, including the applicant. The Policy required employees to be fully vaccinated unless they were granted an exemption based on a prohibited ground of discrimination under the CHRA.

[10] Per the Policy, employees were required to disclose their vaccination status to the respondent by attesting to it before the November 26, 2021, deadline expired. Employees who were unwilling to disclose their vaccination status by that date were required to complete online training on COVID-19 vaccination. Employees who were unwilling to disclose it after the online training or who did not have their accommodation requests approved were to be placed on administrative leave without pay.

[11] On November 10, 2021, the applicant submitted a request for vacation leave from December 13, 2021, to February 22, 2022. The respondent approved her request.

[12] On November 19, 2021, she met with the respondent. At the meeting, she did the following:

· she disclosed that she had contracted COVID-19 in the past, that she had been ill for months, and that it took her six months to recover;

· she disclosed that she did not trust the vaccination; and

· she asked about requesting an accommodation or an exemption per the Policy. The respondent indicated that such requests would be reviewed on a case-by-case basis.

 

[13] On November 30, 2021, the respondent confirmed that the applicant had not attested to her vaccination status; nor had she requested an accommodation or an exemption, per the Policy.

[14] On December 6, 2021, the respondent provided the applicant with a letter advising her of the requirement to complete online training on the benefits of the COVID-19 vaccine and of the requirement to receive her first vaccination dose before December 10, 2022. If she failed to comply, she would be placed on leave without pay effective February 22, 2022, the date that she was scheduled to return from vacation leave.

[15] Between October 2021 and February 2022, the applicant contacted her bargaining agent representatives 10 times, requesting that she receive representation from the Public Service Alliance of Canada (“the bargaining agent”) and that a grievance be filed. She was advised that either she could not file a grievance or that she could file one but that she would not be represented.

[16] On February 22, 2022, the applicant was placed on leave without pay because she did not comply with the Policy.

[17] On June 14, 2022, the respondent suspended the Policy, effective June 20, 2022. Employees on leave without pay were able to return to work on that date. The applicant returned to work on June 20, 2022, which is also the date that she was notified by her bargaining agent that she could file an individual grievance.

[18] On June 24, 2022, the applicant filed her grievance. It was denied at all four levels of the grievance process because it was untimely.

III. Summary of the arguments

[19] Both parties submit that Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1, is the authoritative case to determine whether to grant an application for an extension of time. It outlines the following criteria:

· clear, cogent, and compelling reasons for the delay;

· the length of the delay;

· the due diligence of the applicant;

· balancing the injustice to the applicant against the prejudice to the respondent if the application is granted; and

· the grievance’s chance of success.

 

A. For the applicant

[20] The applicant submits that the application should be granted per s. 61(b) of the Federal Public Sector Labour Relations Regulations (SOR/2005-79; “the Regulations”), in the interest of fairness.

[21] The applicant’s submissions with respect to the Schenkman criteria are as follows.

1. Clear, cogent, and compelling reasons for the delay

[22] The applicant submits that she was steadfast in her decision to file a grievance. She submits that the delay occurred because her bargaining agent believed that decisions made under the policy could not be grieved and because of its decision not to support her filing a grievance, despite her numerous attempts to garner its support.

[23] She contends that she received conflicting information from both her team leader and her manager about filing a grievance without bargaining agent support. This led her to believe that she could not file a grievance. She also had health issues while she was on leave without pay.

[24] The applicant submits that conflicting information, or negligence, on the part of a bargaining agent can be a clear, cogent, and compelling reason for a delay and cited D’Alessandro v. Treasury Board (Department of Justice), 2019 FPSLREB 79, as an example.

2. Length of the delay

[25] The applicant submits that the length of the delay, which was four months after the time limit ran out that was prescribed in the collective agreement between the respondent and the bargaining agent for the Program Delivery and Administrative Services group that expired on October 31, 2021 (“the collective agreement”), is not significant. She cites Rinke v. Canadian Food Inspection Agency, 2005 PSSRB 23, and International Brotherhood of Electrical Workers, Local 2228 v. Treasury Board, 2013 PSLRB 144, to support her position.

3. Due diligence of the applicant

[26] The applicant submits that she was diligent. She sought assistance from the bargaining agent from October 2021 to the date that she filed her grievance. She was determined to contest the respondent’s decision and to file a grievance throughout the entire process, but she did not receive her bargaining agent’s support.

[27] She did not file a grievance without her bargaining agent’s support because the respondent led her to believe that she could not file a grievance without its support. She also consulted external counsel, who informed her that she could not be represented by external counsel because she required the support of her bargaining agent.

[28] Once she realized that it was possible to file a grievance, she acted promptly and did so.

4. Balancing the injustice to the applicant against the prejudice to the respondent

[29] The applicant submits that dismissing the application for an extension of time would be prejudicial to her because she would not have an opportunity to have her grievance heard by the Board.

[30] She also argues that the respondent has not adduced any evidence of the prejudice that it would suffer were the application granted and submits that it would suffer minimal or no prejudice.

5. Chance of success

[31] The applicant argues that it is premature to evaluate the merits of the grievance at this stage.

[32] The applicant cites the following cases to support her position: International Brotherhood of Electrical Workers, Local 2228; Brown v. Deputy Head (Department of National Defence), 2024 FPSLREB 69; Duncan v. National Research Council of Canada, 2016 PSLREB 75; Thompson v. Treasury Board (Canada Border Services Agency), 2007 PSLRB 59; Rinke; D’Alessandro; and Trenholm v. Staff of the Non-Public Funds, Canadian Forces, 2005 PSLRB 65.

B. For the respondent

[33] The respondent submits that per the collective agreement, the applicant had 25 days to present her grievance to the first level of the grievance process. According to the respondent, the action that gave rise to the grievance occurred when she was placed on leave without pay on February 22, 2022, and she filed her grievance on June 24, 2022.

[34] During the grievance process, the applicant did not explain why the grievance was filed outside the time limit. Consequently, the grievance is untimely, and the Board should dismiss the application.

[35] The respondent’s submissions with respect to the Schenkman criteria are as follows.

1. Clear, cogent, and compelling reasons for the delay

[36] The respondent argues that the applicant has not provided clear, cogent, and compelling reasons for the delay.

[37] She did not follow her bargaining agent’s advice. It advised her to file an exemption request; and stated that once the respondent replied, it would represent her. She also did not file a grievance on her own when the bargaining agent advised her that she could, in December 2021.

[38] During the first-level grievance hearing, the applicant’s representative recognized that the grievance was untimely and indicated that she had decided not to proceed at the time but that the bargaining agent was now representing her.

[39] When she filed her grievance, she did not request to extend the time limits by mutual consent.

[40] The respondent notes that 37 grievances related to COVID-19 were filed by members represented by the bargaining agent in the same region as the applicant between February 22, 2022, the date that the applicant was placed on leave without pay, and June 24, 2022, the date that she filed her grievance.

[41] The respondent argues that there is no evidence to support the allegation that its representatives advised the applicant that if she filed a grievance without bargaining agent support, it would not be accepted.

[42] Finally, the respondent argues that there is no evidence to suggest that she was unable to file a grievance while she was on leave from December 2021 to June 2022.

2. Length of the delay

[43] The respondent argues that while the Board has allowed extensions for periods that were longer and shorter than four months, the delay in this case cannot be considered in isolation.

[44] The respondent submits that it is important for the Board to consider the length of the delay with the reason for it to determine if its length is unreasonable.

[45] According to the respondent, the length of the delay in this case is significant, given the lack of supporting evidence to justify it.

3. Due diligence of the applicant

[46] The respondent submits that the applicant did not demonstrate due diligence pursuing the grievance. In December 2021, she was advised that she could file a grievance without bargaining agent support, and she did not file one. The respondent argues that there is no evidence to demonstrate that a management representative told her that she could not file a grievance without bargaining agent support.

[47] The respondent argues that the applicant did not make any inquires to it or her colleagues about filing a grievance. She has worked for the respondent for approximately 10 years and should be familiar with the provisions of her collective agreement and whom she can contact, either the respondent or her colleagues, to inquire about her ability to file a grievance.

4. Balancing the injustice to the applicant against the prejudice to the respondent

[48] The respondent argues that it would suffer great prejudice if the Board granted the request without evidence of a justifiable reason for the delay, for three reasons. First, it paves the way for granting other, similar extension requests. Second, it was aware of the extension request on the date that the bargaining agent filed it, which was June 6, 2024. Finally, three years later, it must respond to allegations about purported conversations between the applicant, her team leader, and her manager about filing a grievance. The time that has passed makes it difficult for witnesses to recall events and to respond to the allegations.

5. Chance of success

[49] The respondent argues that there is little chance of success for the grievance because there was no act of discipline. It argues that its actions were administrative and not disguised discipline. The applicant did not submit an official request for an exemption from or accommodation to the Policy. She explained to the respondent that she did not want to submit an official request if there was no chance it would be granted. Since she did not submit an official request, she did not meet her terms and conditions of employment, and she was placed on leave without pay, so the grievance is without merit.

[50] According to the respondent, the Board contemplated this issue in Rehibi v. Deputy Head (Department of Employment and Social Development), 2024 FPSLREB 47. It submits that re-examining the issue would be a waste of time and resources for both it and the Board.

[51] According to the respondent, some challenges to COVID-19 policies made within the applicable limitation periods were found moot after the policy was suspended.

IV. Reasons

[52] In the interest of fairness, I believe that the application for an extension of time should be granted, for the reasons outlined as follows.

[53] Article 18 of the collective agreement outlines the grievance process and the associated time limits. Clause 18.11 states as follows:

18.11 An employee may present a grievance to the first (1st) level of the procedure in the manner prescribed in clause 18.06, not later than the twenty-fifth (25th) day after the date on which they are notified orally or in writing or on which they first become aware of the action or circumstances giving rise to grievance.

18.11 Au premier (1er) palier de la procédure, l’employé peut présenter un grief de la manière prescrite au paragraphe 18.06 au plus tard le vingt-cinquième (25e) jour qui suit la date à laquelle l’employé est notifié, oralement ou par écrit, ou prend connaissance, pour la première fois, de l’action ou des circonstances donnant lieu au grief.

 

[54] Section 61(b) of the Regulations gives the Board the authority to extend the time limits to file a grievance and states as follows:

61 Despite anything in this Part, the time prescribed by this Part or provided for in a grievance procedure contained in a collective agreement for the doing of any act, the presentation of a grievance at any level of the grievance process, the referral of a grievance to adjudication or the providing or filing of any notice, reply or document may be extended, either before or after the expiry of that time,	61 Malgré les autres dispositions de la présente partie, tout délai, prévu par celle-ci ou par une procédure de grief énoncée dans une convention collective, pour l’accomplissement d’un acte, la présentation d’un grief à un palier de la procédure applicable aux griefs, le renvoi d’un grief à l’arbitrage ou la remise ou le dépôt d’un avis, d’une réponse ou d’un document peut être prorogé avant ou après son expiration :
(a) by agreement between the parties; or	a) soit par une entente entre les parties;
(b) in the interest of fairness, on the application of a party, by the Board or an adjudicator, as the case may be.	b) soit par la Commission ou l’arbitre de grief, selon le cas, à la demande d’une partie, par souci d’équité.

[Emphasis added]

 

[55] As both parties point out, when determining whether such an application should be granted, the Board will consider the criteria set out in Schenkman.

 

[56] There are two tendencies in the Board’s case law with respect to applications for extensions of time. They are described in Van de Ven v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 60 at paras. 73 and 74, and in Noor v. Treasury Board (Department of Indigenous Services), 2023 FPSLREB 86 at para. 45, as follows:

1) a clear and cogent reason for the delay takes precedence over the other criteria; or

2) a more balanced approach is preferred to assess the Schenkman criteria.

 

[57] With respect to the application before me, in the interest of fairness, I prefer to use a more balanced approach to assess the criteria outlined in Schenkman. I note that the issues concerning this application occurred during an unprecedented global pandemic. Decisions were made based on conflicting and sometimes inaccurate information.

A. Clear, cogent, and compelling reasons for the delay

[58] The applicant did not provide clear, cogent, and compelling reasons for the delay. She submitted that she received conflicting information from both her bargaining agent and the respondent about filing a grievance. Her bargaining agent advised her four times that it would not support her if she filed a grievance.

[59] I note that the grievance, which was referred to adjudication under s. 209(1)(b) of the Act, did not require her bargaining agent’s support because it concerns disciplinary action. Her bargaining agent provided her with this information on December 13, 2021, yet she did not file her grievance until June 24, 2022.

[60] As such, this factor weighs in the respondent’s favour.

B. Length of the delay

[61] The applicant filed her grievance approximately four months outside the time limit prescribed in the collective agreement. I agree with the reasoning in Rinke, at para. 16, which is that there is no threshold at which a date is deemed reasonable with respect to a time limit. I find the delay of four months in this matter reasonable. Although there is a need for efficient labour relations resolutions, the respondent was aware that the applicant was attempting to contest its decision when she asked it whether she could file a grievance. Also, the delay is relatively short and there is little prejudice to the respondent.

[62] This factor weighs in the applicant’s favour.

C. The applicant’s due diligence

[63] Based on the parties’ submissions, I find that the applicant was not diligent. Her bargaining agent advised her that she could file a grievance without its support in December 2021. She did not file a grievance until June 2024.

[64] This factor weighs in the respondent’s favour.

D. Balancing the injustice to the applicant against the prejudice to the respondent from granting the application

[65] I find that the injustice to the applicant would be greater were the application not granted than would be the prejudice to the respondent were it granted.

[66] The grievance alleges that the respondent’s decision to place the applicant on unpaid leave was a form of disguised discipline and that the period of unpaid leave had a financial impact on her. If the case were not heard, she would have no other recourse.

[67] The respondent alleges that it would suffer great prejudice if the Board granted the application because doing so would pave the way to granting other, similar extension requests. It also contends that it consistently cited timeliness as the reason the grievance was denied, and that the applicant did not provide a clear, cogent or compelling reason for the delay filing the grievance.

[68] The respondent also argues that it is prejudiced because it must respond to the applicant’s explanation three years later and that its witnesses must try to recall and respond to her claim of discussions with her team leader and manager about filing a grievance.

[69] I give this factor weight in favour of the applicant because the injustice to her would be greater were the application not granted than would be the prejudice to the respondent were it granted.

E. The grievance’s chance of success

[70] The respondent alleges that the grievance has no chance of success for three reasons. First, its actions were administrative. There was no act of discipline. Second, the Board and the respondent would waste resources by examining this issue because the Board has already contemplated it in Rehibi. Finally, some challenges to COVID-19 policies made within the applicable limitation periods were found moot after the policy was suspended. I agree with the applicant that it is premature to assess the merits of the grievance at this stage because evidence as to its substance has not been presented. As such, I give this factor very little weight.

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

(The Order appears on the next page)

V. Order

[72] The respondent’s objection to timeliness is dismissed.

[73] The application for an extension of time is granted.

[74] The grievance will be set down for a hearing according to the Board’s scheduling process.

January 23, 2025.

Brian Russell,

a panel of the Federal Public Sector

Labour Relations and Employment Board