FPSLREB Decisions
Decision Information
The complainant made a complaint in May 2024, alleging that a representative of the respondent did not help her in her efforts to file a grievance. With the assistance of another union representative, she finally filed a grievance that in her opinion, was out of time because of the first representative’s failings. In the complaint form, she indicated that she became aware of the action or circumstances that gave rise to her complaint in July 2019. The respondent raised a preliminary objection that the complaint was manifestly out of time, and therefore, the Board had no jurisdiction to decide it. The Board invited the parties to make written submissions and informed them that it could render a decision on the basis of the information on file if they did not have additional submissions to present. The complainant confirmed that she had nothing to add to the record with respect to the objection. The Board concluded that the complaint was manifestly out of time and that nothing on the record suggested that exceptional or unusual circumstances beyond the complainant’s control justified the Board extending the time limit.
Preliminary objection allowed.
Complaint dismissed.
Decision Content
Date: 20250206
Citation: 2025 FPSLREB 14
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Federal Public Sector Labour Relations Act |
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Before a panel of the |
BETWEEN
Céline Corneau
Complainant
and
PUBLIC SERVICE ALLIANCE OF Canada
Respondent
Indexed as
Corneau v. Public Service Alliance of Canada
Before: Amélie Lavictoire, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Herself
For the Respondent: Sébastien Denoncourt, counsel
Decided on the basis of written submissions,
filed May 2, September 13, and October 21, 2024.
[FPSLREB Translation]
REASONS FOR DECISION |
(FPSLREB TRANSLATION) |
I. Complaint before the Board
[1] On May 2, 2024, Céline Corneau (“the complainant”) made an unfair-labour-practice complaint against her bargaining agent, the Public Service Alliance of Canada (“the respondent”), with the Federal Public Sector Labour Relations and Employment Board (“the Board”).
[2] The complaint was made under s. 190 of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”), which is the provision that applies to unfair labour practices, including the failure to act fairly when representing an employee.
[3] In the form she used to make her complaint, the complainant alleges that a representative of the respondent did not assist her in her efforts to file a grievance. According to her, the representative referred her to other people instead of answering her questions. She stated that the representative tried to discourage her from filing a grievance and left her with no clear and precise instructions. In her opinion, she was “[translation] … left in the dark from July 2018 to June 2019 …”, until another representative answered her questions and told her how to proceed with filing her grievance. She alleges that her grievance was filed late because of the first representative’s shortcomings. Her grievance has still not been resolved.
[4] In the form, the complainant indicated July 4, 2019, as the date she became aware of the situation that gave rise to her complaint.
[5] On September 13, 2024, the respondent raised a preliminary objection. It argued that the unfair-labour-practice complaint was made well beyond the 90-day time limit provided in s. 190(2) of the Act to make one. According to the respondent, the complaint is clearly out of time, and the Board does not have the jurisdiction required to rule on it.
[6] On the same day, the Board asked the complainant to file a response to the preliminary objection. She did not.
[7] A few weeks later, the Board wrote to the parties, to inform them that it was considering rendering a decision on the preliminary objection based on their written submissions. They were invited to file written submissions. A schedule was established. They were also informed that if either of them did not file written submissions, the Board could render a decision about the objection based on the information and documents on record.
[8] The respondent stated that it did not have any additional arguments to present. However, it did send the Board and the complainant two decisions that it cited in its preliminary objection, namely, Nash v. Public Service Alliance of Canada, 2023 FPSLREB 64; and Crête v. Ouellet, 2013 PSLRB 96.
[9] The complainant did not file any additional written submissions on the date indicated in the Board’s schedule.
[10] On November 20, 2024, at my request, the Board’s registry contacted the complainant by telephone, to confirm that she had received the Board’s recent communications and to ask her if she planned to file written submissions in response to the respondent’s objection. That same day, she confirmed in an email that she had nothing to add.
[11] This decision addresses only the preliminary objection that the complaint was out of time and that as a result, the Board does not have jurisdiction to rule on it.
[12] Under 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.
[13] I carefully reviewed the complaint and the respondent’s reasons supporting its preliminary objection. The parties were informed that the Board was considering rendering a decision on the objection based on written submissions. They had the opportunity to file written submissions. They did not. In the circumstances, I am satisfied that I can decide the respondent’s timeliness objection based on the information already in the Board’s file, namely, the complaint, the respondent’s objection, and the case law that it cited.
II. Analysis
[14] The complainant made her complaint under s. 190(1)(g) of the Act, the provision that addresses unfair-labour-practice complaints, including the failure to act fairly when representing an employee.
[15] Section 190(2) of the Act states that complaints under s. 190(1) “… must be made to the Board not 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 the complaint.” That provision also limits the Board’s power to examine and inquire into any complaint that a bargaining agent has committed an unfair labour practice within the meaning of s. 185 (see Castonguay v. Public Service Alliance of Canada, 2007 PSLRB 78 at para. 55).
[16] In her complaint, the complainant stated that the date she knew of the situation that gave rise to it was July 4, 2019.
[17] Nothing in the complaint helps me understand the relevance of the date of July 4, 2019. It is unfortunate that the complainant decided not to make written submissions that could enlighten the Board on it. However, I note that July 4, 2019, closely follows the end of the one-year period during which, according to the complainant, her bargaining agent representative left her in the dark. She stated that during that period, she was referred to other people when she sought information about filing a grievance.
[18] The complaint was not made until May 2, 2024, or almost five years later.
[19] The fact that the grievance process in which the complainant participated failed several years after the actions that gave rise to the complaint does not change the fact that in July 2019, she knew that she was unsatisfied with the support and representation that the respondent was offering.
[20] The complaint is clearly out of time.
[21] In Beaulieu v. Public Service Alliance of Canada, 2023 FPSLREB 100, which was a decision rendered after Nash and Crête, both of which the respondent cited, the Board undertook an exercise of interpreting the Act for the purpose of determining whether it had the power to extend the 90-day time limit set out in s. 190(2).
[22] In a departure from the Board’s previous jurisprudence that the 90-day deadline is mandatory and that the Board cannot deviate from it, in Beaulieu, it found that it has the implicit power to relieve a complainant from their failure to comply with the 90-day deadline to make a complaint under s. 190 of the Act when that lack of compliance was due to exceptional or unusual circumstances that were out of the complainant’s control; specifically, when circumstances completely out of their control interfered with making a complaint in a timely manner (see Beaulieu, at paras. 30 to 44; see also, among others, Fraser v. Public Service Alliance of Canada, 2024 FPSLREB 28 at para. 25; Dundas v. Canadian Association of Professional Employees, 2024 FPSLREB 55 at para. 26; Killips v. Treasury Board (Public Service Commission), 2024 FPSLREB 97 at para. 78; Reid v. Public Service Alliance of Canada, 2024 FPSLREB 100 at para. 37; and Gauthier v. Canadian Association of Professional Employees, 2024 FPSLREB 125 at para. 40).
[23] As I stated, it is unfortunate that the complainant chose not to make written submissions that could have provided further context for the complaint and explained the delay making it.
[24] The complainant did not ask the Board to extend the deadline to make her complaint. She gave no explanation for the very long period that elapsed between the date on which she knew of the situation that gave rise to her complaint and the date on which she made it. Nothing suggests that a circumstance out of her control interfered with making her complaint within 90 days.
[25] The Board’s jurisdiction to hear and decide complaints is rooted entirely in the Act. I am bound by the time limits defined in s. 190. The only exception recognized in the Board’s jurisprudence, which involves exceptional or unusual circumstances outside the complainant’s control, does not apply in this case.
[26] The complaint’s essence involves events that took place well beyond the 90-day time limit imposed under s. 190 of the Act. It is out of time and therefore is dismissed.
[27] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
III. Order
[28] The respondent’s preliminary objection is allowed.
[29] The complaint is dismissed.
February 6, 2025.
FPSLREB Translation
Amélie Lavictoire,
a panel of the Federal Public Sector
Labour Relations and Employment Board