Date: 20250203

File: 568-34-49442

 

Citation: 2025 FPSLREB 13

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

 

Maya El-Haraké

Applicant

 

and

 

Canada Revenue Agency

 

Respondent

Indexed as

El-Haraké 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: Adrian Bieniasiewicz, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Applicant: Bernard Desgagné

For the Respondent: Nicholas Gualtieri

Decided on the basis of written submissions,
filed May 6, July 22 and 29, August 5, and October 30, 2024.

(FPSLREB Translation)

REASONS FOR DECISION

(FPSLREB TRANSLATION)

I. Application before the Board

[1] Maya El-Haraké (“the applicant”) requested that in the interest of fairness, the Federal Public Sector Labour Relations and Employment Board (“the Board”) extend the time limit to refer a grievance to adjudication, under s. 61(b) of the Federal Public Sector Labour Relations Regulations (SOR/2005-79; “the Regulations”).

[2] In her grievance, she challenged the decision of the Canada Revenue Agency (“the respondent”) to place her on leave without pay because she refused to comply with the Policy on COVID-19 Vaccination for the Canada Revenue Agency (“the Policy”).

[3] The respondent objected to her application, arguing that it does not meet the five-part test set out in Schenkman v. Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1. It is asking the Board to dismiss the application to extend the time limit.

[4] For the reasons that follow, I allow its request and dismiss the application to extend the time limit.

II. Background

[5] On December 7, 2021, the applicant grieved the respondent’s decision to place her on unpaid leave because she refused to comply with the Policy. She submitted that its decision amounted to a constructive dismissal. In particular, she argued that the Policy violated her rights guaranteed by the Canadian Charter of Rights and Freedoms (Part I of the Constitution Act, 1982, enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.); “the Charter”).

[6] On December 16, 2021, she was invited to a hearing at the first level of the grievance process. She refused to participate because her grievance contained all her arguments. She also informed the respondent that her grievance should proceed directly to the final level in accordance with her collective agreement, the one between the Canada Revenue Agency and the Professional Institute of the Public Service of Canada for the Audit, Financial, and Scientific group, expiring December 21, 2022 (“the collective agreement”), and the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”) because her situation involved a constructive dismissal.

[7] On January 10, 2022, the respondent denied the grievance at the first level of the grievance process. The grievance was transmitted to the second level. On January 26, 2022, it denied the grievance and informed her that her grievance would be transmitted to the final level under clause 34.08 of the collective agreement. On March 23 and 29, and April 6, 2022, she provided it with additional submissions for it to consider with her grievance. On April 25, 2022, it denied the grievance at the final level of the grievance process.

[8] However, on February 9, 2022, even before it issued its decision at the final level of the grievance process, she had referred her grievance to adjudication.

[9] It objected, alleging that the grievance had been prematurely referred to adjudication. On March 6, 2024 (see Appendix “A”), the Board decided that the applicant’s grievance had not been properly referred to it, allowed the respondent’s objection, denied the referral to adjudication, and closed the file.

[10] On April 2, 2024, the applicant applied in the interest of fairness to have the time extended to refer her grievance to adjudication under s. 61(b) of the Regulations. The respondent objected, alleging that she had not demonstrated that her application met the five-part test for such applications as established in Schenkman. It also objected to the Board’s jurisdiction to hear the grievance, alleging that it did not relate to a disciplinary action resulting in termination, demotion, suspension, or financial penalty. That objection was held in abeyance pending the Federal Court of Appeal decision in A-154-24, Lavoie. v. Attorney General of Canada. This decision deals only with the respondent’s objection to the application to extend the time limit.

[11] To determine the merits of the respondent’s objection, I gave the parties the opportunity to make additional written submissions, which they did. I reviewed them attentively.

III. Summary of the arguments

A. For the respondent

[12] The respondent’s objection relies on s. 90(1) of the Regulations. Under that provision, a grievance may be referred to adjudication no later than 40 days after the day on which the person who presented the grievance received a decision at the final level of the applicable grievance process. According to the respondent, almost two years elapsed between the date on which the applicant received the final-level decision, April 25, 2022, and the date on which the grievance was referred to adjudication, April 2, 2024.

[13] It briefly referred to the five-part test set out in Schenkman that applies to applications to extend the time limit under s. 61(b) of the Regulations. In its opinion, the applicant did not provide clear, cogent, and compelling reasons for not referring her grievance within the time limit prescribed by the Regulations.

B. For the applicant

[14] The applicant submits that it would be fair to allow her application to extend the time limit because she strictly adhered to the collective agreement clauses 34.13 and 34.17. She presented her grievance on December 7, 2021, which meant that the respondent had until January 21, 2022, to respond. As a result, she had until March 2, 2022, to refer her grievance to adjudication. It follows that initially, she referred her grievance within the time prescribed in s. 90(1) of the Regulations.

[15] She submits that when she presented her grievance, she made it clear to the respondent that the decision to place her on leave without pay for an indefinite period was a constructive dismissal, as it unilaterally imposed a new employment condition on her, one with which she refused to comply. In her submissions, she also refers to several statistics on the serious adverse effects of injecting the experimental gene therapy (COVID-19 vaccines), including mortality rates.

[16] She submits that on March 6, 2024, the Board decided that she had referred her grievance to adjudication before the respondent’s time to respond had expired. However, she argues that the Board erred in concluding that it was not “[translation] properly seized of the grievance” without resolving the constructive dismissal issue. Therefore, in this application to extend the time limit, she is asking the Board to remedy this alleged error by exercising its power under s. 43(1) of the Act. In her view, the simplest way to do this is to extend the time for her to refer her grievance to adjudication. Section 43(1) reads, “The Board may review, rescind or amend any of its orders or decisions, or may re-hear any application before making an order in respect of the application.”

[17] Moreover, she submits that an administrative tribunal is not bound by its previous decisions in the same way as a court of law (see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 SCR 653 at para. 131). Therefore, the Board is not bound by Fauteux v. Deputy Head (Canadian Food Inspection Agency), 2022 FPSLREB 84, or by the March 6, 2024, decision.

[18] Absent a remedy to the March 6, 2024, decision, she submits that the application to extend the time limit should be allowed because it satisfies the five-part test set forth in Schenkman. The Board held her grievance in abeyance until the March 6, 2024, decision on her first referral to adjudication on February 9, 2022. Neither she nor the respondent could anticipate the outcome of that decision. She had good reason to believe that she was constructively dismissed and that therefore, she could present her grievance at the final level. Waiting for the March 6, 2024, decision is a clear, cogent, and compelling reason for the delay. The Board took two years to rule on the first referral to adjudication.

[19] As for the due diligence criterion, she complied with the time limits on her first referral to adjudication. Moreover, she referred her grievance to adjudication a second time on April 2, 2024, 27 days after the Board’s March 6, 2024, decision.

[20] She submits that it would be unfair if grievors who had not received a final-level response by March 6, 2024, could pursue the process and refer their grievance to adjudication, while she, who received a final-level response on April 25, 2022, could not. Lastly, there is no reason to believe that her grievance has no chance of success.

[21] To support her application, she refers to Barbe v. Treasury Board (Correctional Service of Canada), 2022 FPSLREB 42 at para. 25, in which the Board agreed to extend the time to refer the grievance to adjudication with a 20-month delay.

C. The respondent’s response

[22] The respondent reiterates that the applicant referred her grievance to adjudication almost two years after the 40-day time limit prescribed in s. 90(1) of the Regulations had expired. It submits that time limits are meant to be respected and should be extended only in exceptional circumstances, depending on the facts of each case (see Bowden v. Treasury Board (Canada Border Services Agency), 2021 FPSLREB 93 at para. 77).

[23] In the interest of fairness, the Board has the power to extend the time limit, applying the five-part test set out in Schenkman. However, the criteria are not necessarily equally important. Each criterion must be examined in relation to the facts of each case (see Lewis v. Deputy Head (Correctional Service of Canada), 2023 FPSLREB 27 at para. 50, and Bowden, at para. 77). Some criteria do not apply, depending on the facts of each case (see Lessard-Gauvin v. Treasury Board (Canada School of Public Service), 2022 FPSLREB 40 at para. 32).

[24] According to the respondent, neither the wait for the Board’s March 6, 2024, decision nor the Board’s alleged error constitutes a clear, cogent, and compelling reason for the two-year delay.

[25] After the applicant presented her grievance on December 7, 2021, the respondent explained the grievance process that applied to her situation, and explained that her grievance could not be heard directly at the final level. She ignored its explanations. Once she received the final-level response on April 25, 2022, nothing prevented her from referring her grievance to adjudication within the prescribed time.

[26] However, she knowingly chose to wait for the Board’s March 6, 2024, decision involving the respondent’s objection to the first referral to adjudication. This is not a cogent reason in the circumstances. The delay is entirely attributable to her. She never sought to ensure that her referral had been made as prescribed. Omission or negligence is not a cogent and compelling reason to extend the time limit.

[27] According to the respondent, the length of the delay is considerable. The time limits set by the Act and Regulations are mandatory and must be respected (see Grouchy v. Deputy Head (Department of Fisheries and Oceans), 2009 PSLRB 92).

[28] It maintains that she did not act diligently. The reasons that she gave in no way demonstrate that she was prevented from acting after receiving the final-level response on April 25, 2022 (see Popov v. Canadian Space Agency, 2018 FPSLREB 49 at para. 52). She undermined the grievance process. She knowingly chose not to wait for the final-level decision before referring her grievance to adjudication on February 9, 2022. Afterwards, she was content to wait for the Board’s decision for almost two years.

[29] The respondent submits that the balance between the injustice to the applicant and the prejudice to it should be given little weight, as she failed to establish clear, cogent, and compelling reasons. Allowing an extension, which is the exception and not the rule, when the delay is considerable, seriously undermines confidence with respect to the time limits being respected.

[30] The grievance’s chance of success is low. In any case, this criterion should be given little weight, as it is difficult to assess a grievance’s merits without a hearing. That being said, in Rehibi v. Deputy Head (Department of Employment and Social Development), 2024 FPSLREB 47, dealing with a similar factual context, the Board concluded that applying the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police and placing the grievors on leave without pay was administrative rather than disciplinary. The grievors’ application to the Federal Court of Appeal for judicial review of that decision does not affect this grievance’s low chance of success.

D. The applicant’s response to the respondent’s response

[31] With the respondent’s consent, I authorized the applicant to make additional submissions to support her application to extend the time limit. She submits that fairness, accessibility, and the less formal nature of proceedings before administrative tribunals are cardinal principles that administrative decision makers must respect.

[32] She submits that the Board must determine whether her rights, including those guaranteed by the Charter, were violated (see York Region District School Board v. Elementary Teachers’ Federation of Ontario, 2024 SCC 22 at paras. 90 to 94). Rehibi was subject to a judicial review application because the Board member refused to decide whether the grievors’ rights had been violated. In her additional submissions, the applicant attacks the decision in Rehibi.

[33] She reiterates that in its March 6, 2024, decision, the Board failed to determine whether she had been constructively dismissed. Therefore, she could not have known whether the collective agreement clause 34.17 applied. This is unfair. During the internal grievance process, the respondent did not respect the fundamental principle of procedural fairness by allowing her to be heard. This fact favours allowing her application to extend the time limit.

[34] Referring her grievance to adjudication a second time would have changed nothing, and it would now be pending, like many others. Moreover, instead of taking a pointless procedural step with no impact on the merits of the case, the respondent simply could have interrupted the internal grievance process as soon as the referral took place on February 9, 2022. This would have allowed her to continue the internal grievance process at the final level after the Board’s March 6, 2024, decision.

[35] Dismissing the application to extend the time limit would be contrary to the spirit in which the Canadian administrative tribunals were created. They must be flexible, as confirmed by s. 43(1) of the Act, s. 90(1) of the Regulations, and paragraph 25 of Barbe.

E. The respondent’s response to the applicant’s additional submissions

1. Procedural issues

[36] The respondent asked the Board for permission to file a response to the applicant’s additional submissions. When the Board asked the applicant to provide her position on the respondent’s request, she stated that she did not object, while taking the opportunity to make additional submissions.

[37] Therefore, I allowed its request, specifying that its response should be limited to what she stated in the additional submissions that she filed on August 5, 2024. Conversely, given that she had previously had two opportunities to make submissions (July 22 for the first submissions and August 5, 2024, for the additional submissions), I informed her that I would not consider the additional submissions that she made in her October 25, 2024, email.

[38] That decision causes no prejudice to her, as she had two opportunities to respond to the respondent’s submissions. However, I believe that allowing additional submissions to continue to be made would not only risk delaying the process’s conclusion, but also undermine the process’s efficiency and predictability. Ending the exchange ensures that all parties have been treated fairly in the submissions exchange process.

2. The respondent’s response

[39] The respondent submits that the applicant’s belief that she was constructively dismissed in no way demonstrates what could have prevented her from referring her grievance to adjudication in time after she received the final-level decision on April 25, 2022.

[40] It did not have to interrupt the grievance process because she chose not to follow it. The grievance process is part of the collective agreement established by the parties in compliance with applicable legislation.

[41] It never refused to hear her submissions. Its disagreement with her position cannot be construed as a breach of procedural fairness. At each level of the grievance process, she was given the opportunity to be heard and to present her case. Each time, she refused to participate, stating that she had made all her submissions in her grievance. It reviewed the additional reference documents that she had transmitted to the final level and responded to her argument that she had been terminated, constructively dismissed, or disciplined.

IV. Reasons

[42] Pursuant to s. 61(b) of the Regulations, the Board may, in the interest of fairness, extend the time limit prescribed by Part 2 of the Regulations or provided for in a grievance process 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.

[43] The Board applies the five-part test to determine whether to exercise its discretionary power to extend time limits in the interests of fairness (see Schenkman). The criteria are not necessarily equally important, not all the criteria are relevant, and weighting is situational, depending on the facts of the case at hand (see Martin v. Treasury Board (Department of Human Resources and Skills Development), 2015 PSLREB 39 at paras. 59 and 70, and Van de Ven v. Treasury Board (Canada Border Services Agency), 2023 FPSLREB 60 at para. 74).

[44] Section 61(b) of the Regulations is not intended to render meaningless the time limits negotiated by the parties (see Bowden, at para. 77, and Mark v. Canadian Food Inspection Agency, 2007 PSLRB 34 at para. 24). Time limits are prescribed and should be extended only in exceptional circumstances (see Martin, at paras. 57 and 68). Absent clear, cogent, and compelling reasons, it is difficult to see how extending the time limit could be considered fair and equitable (see Andrews v. Deputy Head (Department of Fisheries and Oceans), 2021 FPSLREB 137 at para. 28, and Lagacé v. Treasury Board (Immigration and Refugee Board), 2011 PSLRB 68 at para. 47).

A. Extending the time limit is not justified

1. The delay is not justified by clear, cogent, and compelling reasons

[45] The applicant did not provide clear, cogent, and compelling reasons for waiting almost two years before referring her grievance to adjudication. Instead of focusing her submissions on why she had not referred her grievance to adjudication within 40 days following the final-level response on April 25, 2022, in accordance with s. 90(1) of the Regulations, she devotes most of her submissions to explaining why she was within her rights, or had justification to present her grievance directly at the final level of the grievance process and to refer it to adjudication before receiving the final-level response. She is also trying to satisfy the Board that its March 6, 2024, decision and Rehibi are erroneous.

[46] However, on March 6, 2024, the Board decided that she could not present her grievance directly at the final level of the grievance process and refer it to adjudication before receiving the final-level response. Therefore, it denied it for lack of jurisdiction. She did not challenge that decision through a judicial review application, as provided for under the Federal Courts Act (R.S.C. 1985, c. F-7). The matter is closed. Later in these reasons, I will address the applicant’s argument about the recourse provided under s. 43(1) of the Act.

[47] As for Rehibi, it has been challenged through a judicial review application to the Federal Court of Appeal. It will be up to the Court, and not the Board in the context of an application to extend the time limit, to decide whether that decision is erroneous, justifying the Court’s intervention.

[48] The fact that the applicant was waiting for the Board’s decision on her first referral to adjudication on February 9, 2022, is not a clear, cogent, and compelling reason for not referring her grievance to adjudication after she received the final-level response. The wait for the March 6, 2024, decision did not suspend the 40-day time limit prescribed in s. 90(1) of the Regulations.

[49] Moreover, the respondent explained to her that her grievance could not be presented directly at the final level and that she had to follow the grievance process that was in place. However, she chose to refer her grievance to adjudication before she had even received the final-level response. It was a risk that she took. She knew the risk. Therefore, to protect her rights, she could have referred her grievance to adjudication after receiving the final-level response within the time limit prescribed in s. 90(1) of the Regulations. However, she chose otherwise. That is her decision. I do not accept that she could invoke her own negligence to have the time limit extended. Negligence is not a clear, cogent, or compelling reason for the delay (see Copp v. Treasury Board (Department of Foreign Affairs and International Trade), 2013 PSLRB 33 at para. 29).

[50] She submits that being unable to anticipate the Board’s March 6, 2024, decision on her first referral to adjudication on February 9, 2022, is a clear, cogent, and compelling reason for not making a second referral to adjudication until April 2, 2024. I disagree. In my opinion, being unable to anticipate the Board’s March 6, 2024, decision should have prompted her to exercise caution and refer her grievance to adjudication within 40 days of April 25, 2022. I find it hard to understand her inaction.

2. The length of the delay is significant

[51] Almost two years elapsed between the date on which the respondent rendered its decision at the final level of the grievance process and the date on which the applicant referred her grievance to adjudication for the second time. As I explained earlier, the delay is strictly attributable to the applicant’s decision not to refer her grievance to adjudication within the time limit prescribed in s. 90(1) of the Regulations, after receiving the respondent’s final-level decision on April 25, 2022.

[52] The delay is considerable, which favours dismissing the application to extend the time limit (see Chan v. Treasury Board (Office of the Chief Electoral Officer), 2008 PSLRB 86 at para. 20, and Van Duyvenbode v. Treasury Board (Department of Indian Affairs and Northern Development), 2008 PSLRB 90 at para. 46).

[53] I disagree with her argument that she cannot be held responsible for the length of the delay because it was the Board that took two years to rule on the first referral to adjudication. As I previously stated, the wait for that decision did not suspend the time limit prescribed in s. 90(1) of the Regulations.

3. The applicant failed to demonstrate due diligence

[54] The applicant did not refer her grievance to adjudication in time after receiving the final-level decision, by choice and not because she was prevented. Instead, she chose to wait for the Board’s decision, rendered on March 6, 2024, before taking that initiative. She did not act diligently. She knew the risks associated with her choice.

[55] I reject her argument that she demonstrated due diligence because she met the time limits on her first referral to adjudication and referred her grievance to adjudication a second time within 27 days of the March 6, 2024, decision. By prematurely referring her grievance to adjudication, she clearly failed to respect the applicable time limits. Moreover, stating that she was diligent in referring her grievance to adjudication a second time within 27 days of the Board’s decision is disingenuous, as it is based on a false premise. The time limit for referring her grievance to adjudication began on April 25, 2022, the date on which she received the final-level response, not on March 6, 2024.

4. The balance between the injustice to the applicant if the application is dismissed and the prejudice to the respondent if it is allowed

[56] I recognize that if I dismiss the applicant’s application to extend the time limit, she will be unable to argue her grievance. However, she could have easily avoided this situation. She took unnecessary risks.

[57] She argues that it would be unfair for the Board to dismiss her application to extend the time limit because other employees, who did not receive a final-level response before the March 6, 2024, decision, could continue the grievance process and subsequently refer their grievances to adjudication.

[58] That argument is not a clear, cogent, and compelling reason for her inaction over almost two years. As previously mentioned, she knowingly chose not to refer her grievance to adjudication after receiving the final-level decision. Negligence is not an acceptable justification and does not meet the five-part test (see Copp, at para. 29).

5. The grievance’s chance of success remains uncertain

[59] The applicant’s grievance concerns the respondent’s decision to place her on unpaid leave for failing to comply with the Policy. According to her, it was a disciplinary action resulting in a constructive dismissal, which violated the Charter and the collective agreement. She referred her grievance to adjudication under s. 209(1)(b) of the Act, which allows a grievor to refer to adjudication an individual grievance relating to disciplinary action resulting in termination, demotion, suspension, or financial penalty.

[60] Recently, the Board determined that the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police, meaning its development, implementation, and application to grievors, was administrative rather than disciplinary (see Rehibi). Moreover, the Board concluded that it did not infringe on the grievors’ rights protected by s. 7 of the Charter, nor did it impact its underlying values. Therefore, the Board denied the grievances for lack of jurisdiction.

[61] The respondent maintains that given Rehibi, the applicant’s grievance has a low chance of success.

[62] That being said, I note that the grievors have challenged Rehibi in a judicial review application to the Federal Court of Appeal. A decision is pending. It would be inappropriate for me to speculate on its outcome. Therefore, I give little weight to this point.

[63] Without deciding on the merits of the reasoning in Barbe, which the applicant cited to support her application to extend the time limit, I can easily distinguish it from the facts in this case. In Barbe, the grievors’ grievances were about their right to receive their pay while on injury-on-duty leave. The grievors could not refer their grievances to adjudication themselves because they were relying on the collective agreement. They needed their bargaining agent’s support to refer to adjudication. However, due to the bargaining agent’s confusion, the grievances were referred to adjudication 20 months late. In those circumstances, and considering that the grievors could not act alone and needed their bargaining agent to act, the Board agreed to extend the time limit.

[64] However, as noted earlier in these reasons, in this case the applicant’s decision not to refer her grievance to adjudication within the prescribed time, after receiving the final-level response, was entirely attributable to her. In other words, unlike the grievors in Barbe, the applicant was not prevented from referring her grievance to adjudication.

[65] Therefore, I conclude that the applicant did not provide clear, cogent, and compelling reasons for the delay. As a result, the other criteria of the analysis become secondary (see Schenkman, at para. 80, and Lagacé, at para. 53). In these circumstances, I do not believe that it would be in the interest of fairness to extend the time limit.

B. Recourse under s. 43(1) of the Act

[66] Incidentally, the applicant points to s. 43(1) of the Act to support her application to extend the time limit. I repeat that this provision states, “The Board may review, rescind or amend any of its orders or decisions, or may re-hear any application before making an order in respect of the application.”

[67] Specifically, she submits that the simplest way to remedy the error in the March 6, 2024, decision, relying on s. 43(1) of the Act, is to allow her application to extend the time limit. She states that the error in question lies in the Board’s conclusion that it was not properly seized of the grievance, as it had not determined the constructive dismissal issue. I hasten to add that the applicant did not challenge that decision in a judicial review application to the Federal Court of Appeal, as she was entitled to do.

[68] An application to extend the time limit under s. 61(b) of the Regulations and an application for review under s. 43(1) of the Act are two distinct and independent procedural avenues. The recourse provided for in s. 43(1) of the Act gives power to the Board, acting under Part 1 of the Act - Labour Relations, to review, rescind, or amend any of its orders or decisions or to re-hear any application before making an order in respect of the application. I specify Part 1 of the Act because there seems to be some uncertainty about whether the Board sitting under Part 2 of the Act, which addresses grievances, can exercise the powers set out in s. 43(1) (see Canada (Attorney General) v. Philps, 2017 FCA 178; Kruse v. Deputy Head (Canada Border Services Agency), 2021 FPSLREB 28, and Nash v. Treasury Board (Correctional Service of Canada), 2021 FPSLREB 121). Section 61(b) of the Regulations gives the Board the power to extend time limits, in the interest of fairness.

[69] Even without deciding the issue, presuming that the Board acting under Part 2 of the Act could exercise the powers set out in s. 43(1) of the Act, I would have dismissed the application for review. I believe that the applicant did not meet her burden of establishing that a review of the March 6, 2024, decision is justified.

[70] First, I repeat that an application under s. 43(1) of the Act is not an appeal or an application for reconsideration. It is a limited exception to the finality of the Board’s decisions (see Chaudhry v. Canada (Attorney General), 2009 FCA 376 at para. 8, and s. 34(1) of the Federal Public Sector Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365; FPSLREBA)). The recourse provided for in s. 43(1) is not an automatic recourse. The fundamental principle of labour relations stability requires that decisions, once made, be respected and enforced. It guarantees the integrity and finality of the decision-making process, preventing decisions from constantly being challenged and reassessed.

[71] The applicant must demonstrate that the Board should exercise its discretionary power under s. 43(1) of the Act due to exceptional circumstances (see Canada Revenue Agency v. Public Service Alliance of Canada, 2023 FPSLREB 32 at para. 18, and Chaudhry v. Treasury Board (Correctional Service of Canada), 2009 PSLRB 39). If there are no such grounds, an application for review is akin to an undue attempt to reopen the debate, which could compromise the final decision’s credibility and authority. In this case, the applicant did not meet her burden of demonstrating that a review of the March 6, 2024, decision under s. 43(1) is justified. Merely alleging that the Board erred does not satisfy this burden. More is required. I also note that an application for review under s. 43(1) of the Act must be duly submitted with supporting arguments that would allow the Board to determine whether it should exercise its discretionary power under this provision. I do not believe that the applicant’s application met this requirement. In my opinion, merely raising s. 43(1) of the Act in passing in an application to extend the time limit, submitting that the Board had erred in its analysis of a previous decision, cannot be considered equivalent to duly submitting an application for review. However, if I am mistaken, and the preceding is sufficient to conclude that the applicant did duly submit an application for review, I would have dismissed it anyway, as the applicant did not discharge her burden of demonstrating that the application met the relevant criteria (see Canada Revenue Agency, at para. 18, and Chaudhry, at para. 29).

[72] For these reasons, the argument that the Board should rely on s. 43(1) of the Act to remedy the March 6, 2024, decision, and thus extend the time limit, is dismissed.

C. The precedents favour predictability and stability

[73] I reject the applicant’s suggestion that I am not bound to follow the Board’s decision in Fauteux or the March 6, 2024, decision because the Board is not bound by its previous decisions in the same way as a court of law.

[74] Although it is true that generally speaking, an administrative tribunal is not bound by its own decisions in the same way as a court of law, in my opinion, a Board member should deviate from previous decisions only if he or she believes that they are ill-founded. Certainty, uniformity, stability, and predictability are essential elements in fostering a positive labour relations climate. A Board member who departs from the jurisprudence must provide reasons for so doing (see Canada (Attorney General) v. National Police Federation, 2022 FCA 80 at paras. 48 to 50). The applicant’s disagreement with the decision in Fauteux is not enough in itself to disregard it.

[75] The March 6, 2024, decision, which settles the issue between the applicant and the respondent, is final and binding (see s. 34(1) of the FPSLREBA). I cannot ignore it, as the applicant suggests.

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

(The Order appears on the next page)

V. Order

[77] The applicant’s application to extend the time limit is dismissed.

[78] The grievance is denied.

February 3, 2025.

FPSLREB Translation

Adrian Bieniasiewicz,

a panel of the Federal Public Sector

Labour Relations and Employment Board

APPENDIX A

 

[FPSLREB Translation]

 

March 6, 2024

 

 

 

Bernard Desgagné (Grievors’ Representative) [email address redacted]	BY EMAIL
Richard Fader (Treasury Board Representative for the Employer) [email address redacted]		BY EMAIL

 

 

 

Re: Federal Public Sector Labour Relations and Employment Board

Files 566-34-44056 (Landry), 566-34-44104 (Girard), 566-34-44208 (Boutet), 566-34-44218 (El-Haraké), 566-34-44226 (Gauthier), 566-34-44250 (Vilela), 566-34-44258 (Grenier) & Canada Revenue Agency

 

Between January 20, 2022 and February 17, 2022, the grievors named here (“the grievors”) each referred a grievance to the Federal Public Sector Labour Relations and Employment Board (“the Board”) for adjudication. The Canada Revenue Agency (“the employer”) raised a preliminary objection stating that the grievances could not be referred for adjudication because they had not been presented at the final level of the grievance process, contrary to the grievance process set out in the applicable collective agreements, or, in the case of Maya El-Haraké (file 566-34-44218), because the grievance had been referred prematurely. Section 225 of the Federal Public Sector Labour Relations Act, S.C. 2003, c. 22, s. 2 (“the Act”) also states that a grievance cannot be referred to adjudication before it has been presented at all the required levels of the applicable grievance process.

 

The grievances concern the employer’s decision, in compliance with the Policy on COVID-19 Vaccination for the Canada Revenue Agency (the Policy), to place employees on administrative leave without pay because they refused to comply with the Policy.

 

The Board received many similar grievances, a certain number of which, including this one, had been referred to the Board early. Those early grievances were suspended pending a decision on the employer’s preliminary objection. The decision (Fauteux v. Deputy Head (Canadian Food Inspection Agency), 2022 FPSLREB 84) was rendered on October 7, 2022. Subsequently, an application for judicial review was submitted to the Federal Court of Appeal, and was discontinued on March 30, 2023.

 

The Board rejected the argument that characterizing the Policy as a change in working conditions, such that it amounted to a constructive dismissal or implicit termination, meant that the grievance could be presented at the final level of the grievance process, which is the usual path for a grievance against a termination of employment. In Fauteux, the grievances had been heard at the first level, which, in the grievors’ opinion, was equivalent to the final level.

The Board concluded that since the grievors had not followed the required process, their grievances could not proceed to adjudication. The main reasoning can be found in the following paragraphs:

[48] I cannot accept that a grievor may unilaterally ignore the grievance process set out in the collective agreement based solely on his or her description of the grievance as being related to constructive dismissal or implicit termination. A grievor is not entitled to treat the employer’s first-level response, or the absence of a first-level response, as a decision at the final level of the grievance process based solely on his or her characterization of the situation. Accepting the position that the grievors advanced would be contrary to the collective agreement and the spirit and intent of the Act.

[49] The grievors are free to interpret the Agency’s decision as a constructive dismissal and to assert their rights. However, they must do so in compliance with the process established in the collective agreement and the Act. Allowing them to refer their grievances to adjudication without following the grievance process would be contrary to objective of the grievance process as described in Laferrière.

[50] Because the grievors did not comply with the grievance process, the grievances were not appropriately referred to adjudication under the Act, and therefore, the Board does not have jurisdiction to deal with them.

 

Decision

 

The objection to the premature referral is threefold: in addition to the collective agreement, the requirement for the grievance to be presented at all the required levels is set out in ss. 225 and 209(1) of the Act. The relevant passages read as follows:

 

Collective agreement between the Canada Revenue Agency and the Public Service Alliance of Canada, expiry date October 31, 2021

 

18.08 There shall be no more than a maximum of four (4) levels in the grievance procedure:   a. Level 1 – first (1st) level of management; b. Levels 2 and 3 – intermediate level(s), where such level or levels are established in the CRA; c. Final level – the Commissioner or their authorized representative.   Whenever there are four (4) levels in the grievance procedure, the grievor may elect to waive either Level 2 or 3.     18.16 Where it appears that the nature of the grievance is such that a decision cannot be given below a particular level of authority, any or all the levels except the final level may be eliminated by agreement of the Employer and the employee, and, where applicable, the Alliance.   18.17 Where the Employer demotes or terminates an employee for cause pursuant to paragraph 51(1)(f) or (g) of the Canada Revenue Agency Act, the grievance procedure set forth in this Agreement shall apply, except that the grievance may be presented at the final level only.     18.19 Any employee who fails to present a grievance to the next higher level within the prescribed time limits shall be deemed to have abandoned the grievance unless, due to circumstances beyond their control, they were unable to comply with the prescribed time limits.   18.21 Reference to adjudication Where an employee has presented a grievance up to and including the Final Level in the grievance procedure … and the employee’s grievance has not been dealt with to their satisfaction; they may refer the grievance to adjudication in accordance with the provisions of the FPSLRA and Regulations.

18.08 La procédure de règlement des griefs comporte un maximum de quatre (4) paliers :   a. le palier 1 – premier (1er) palier de direction; b. les paliers 2 et 3 – palier(s) intermédiaire(s), lorsqu’il existe de tel(s) palier(s) à l’ARC; c. le palier final – le Commissaire ou son représentant autorisé.   Lorsque la procédure de règlement des griefs comprend quatre (4) paliers, le plaignant peut choisir de renoncer soit au palier 2, soit au palier 3.   18.16 Lorsque la nature du grief est telle qu’une décision ne peut être rendue au-dessous d’un palier d’autorité donné, l’Employeur et l’employé et, s’il y a lieu, l’Alliance, peuvent s’entendre pour supprimer un palier ou tous les paliers, sauf le dernier.   18.17 Lorsque l’Employeur rétrograde ou licencie un employé pour un motif déterminé aux termes de l’un des alinéas 51(1)f) ou g) de la Loi sur l’Agence du revenu du Canada, la procédure de règlement des griefs énoncée dans la présente convention s’applique, sauf que le grief n’est présenté qu’au dernier palier.   18.19 L’employé qui néglige de présenter son grief au palier suivant dans les délais prescrits est réputé avoir renoncé à son grief, à moins que l'employé ne puisse invoquer des circonstances indépendantes de sa volonté qui l’ont empêché de respecter les délais prescrits.   18.21 Renvoi à l’arbitrage Lorsque l’employé a présenté un grief jusqu’au et y compris le dernier palier de la procédure de règlement des griefs […]et que son grief n’a pas été réglé à sa satisfaction, l’employé peut le présenter à l’arbitrage selon les dispositions de la LRTSPF et de son règlement d’exécution.

 

Collective agreement between the Agency Canada Revenue and the Professional Institute of the Public Service of Canada, expiry date December 21, 2022

 

34.08 There shall be no more than a maximum of four (4) levels in the grievance procedure: (a) Level 1 – first level of management; (b) Levels 2 and 3 – intermediate level(s), where such level or levels are established in the Agency; (c) Final level – the Commissioner or his authorized representative.   Whenever there are four (4) levels in the grievance procedure, the grievor may elect to waive either Level 2 or 3.     34.16 Where it appears that the nature of the grievance is such that a decision cannot be given below a particular level of authority, any or all the levels except the final level may be eliminated by agreement of the Employer and the employee, and, where applicable, the Institute.   34.17 Where the Employer demotes or terminates an employee for cause pursuant to paragraph 51(1)(f) or (g) of the Canada Revenue Agency Act, the grievance procedure set forth in this Agreement shall apply, except that the grievance may be presented at the final level only.     34.19 Any employee who fails to present a grievance to the next higher level within the prescribed time limits shall be deemed to have abandoned the grievance unless, due to circumstances beyond his control, he was unable to comply with the prescribed time limits.   34.21 Reference to adjudication   (1) An employee may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee's satisfaction …

34.08 La procédure de règlement des griefs comporte un maximum de quatre (4) paliers :     (a) le palier 1 – première palier de direction; (b) les paliers 2 et 3 – palier(s) intermédiaire, lorsqu'il existe de tel(s) palier(s) à l'Agence; (c) le palier final – le commissaire ou son représentant autorisé.   Lorsque la procédure de règlement des griefs comprend quatre (4) paliers, le plaignant peut choisir de renoncer soit au palier 2, soit au palier 3.   34.16 Lorsque la nature du grief est telle qu'une décision ne peut être rendue au dessous d'un palier d'autorité donné, l'Employeur et l'employé-e et, s'il y a lieu, l'Institut, peuvent s'entendre pour supprimer un palier ou tous les paliers, sauf le dernier.   34.17 Lorsque l'Employeur rétrograde ou licencie un employé-e pour un motif déterminé aux termes de l'un des alinéas 51(1)(f) ou (g) de la Loi sur l'Agence du revenu du Canada, la procédure de règlement des griefs énoncée dans la présente convention s'applique, sauf que le grief n'est présenté qu'au dernier palier.   34.19 L'employé-e qui néglige de présenter son grief au palier suivant dans les délais prescrits est réputé avoir renoncé à son grief, à moins qu'il ou elle ne puisse invoquer des circonstances indépendantes de sa volonté qui l'ont empêché de respecter les délais prescrits.   34.21 Renvoi à l'arbitrage (1) L'employé-e peut renvoyer à l'arbitrage un grief individuel qui a été présenté à tous les paliers de la procédure de règlement des griefs, y compris le dernier, et qui n'a pas été réglé à sa satisfaction […]

 

The Act

 

225 No grievance may be referred to adjudication until the grievance has been presented at all required levels in accordance with the applicable grievance process.   209 (1) An employee who is not a member as defined in subsection 2(1) of the Royal Canadian Mounted Police Act may refer to adjudication an individual grievance that has been presented up to and including the final level in the grievance process and that has not been dealt with to the employee’s satisfaction...   [Emphasis added]

225 Le renvoi d’un grief à l’arbitrage ne peut avoir lieu qu’après la présentation du grief à tous les paliers requis conformément à la procédure applicable.     209 (1) Après l’avoir porté jusqu’au dernier palier de la procédure applicable sans avoir obtenu satisfaction, le fonctionnaire qui n’est pas un membre, au sens du paragraphe 2(1) de la Loi sur la gendarmerie royale du Canada, peut renvoyer à l’arbitrage tout grief individuel portant sur [...]

 

As noted in Fauteux, the obligation to respect the steps of the grievance process is reinforced by s. 241 of the Act, which reads as follows:

 

241 (1) No proceeding under this Act is invalid by reason only of a defect in form or a technical irregularity. (2) The failure to present a grievance at all required levels in accordance with the applicable grievance process is not a defect in form or a technical irregularity for the purposes of subsection (1).

241 (1) Les procédures prévues par la présente partie ne sont pas susceptibles d’invalidation pour vice de forme ou de procédure. (2) Pour l’application du paragraphe (1), l’omission de présenter le grief à tous les paliers requis conformément à la procédure applicable ne constitue pas un vice de forme ou de procédure.

 

The grievors did not present their grievances at all levels of the grievance process, and they asked the employer to render a final-level decision, which the employer refused to do. The employer required the grievors to go through all the levels, including the final level. The grievors decided to refer the grievance to adjudication instead of presenting it at the next level. Therefore, the circumstances are similar to those in Fauteux.

 

Before rendering this decision, the Board asked the grievors if they wished to present submissions to distinguish Fauteux such that it should not apply to their situation.

 

The grievors presented such submissions.

 

Essentially, they repeated the arguments that had previously been presented before the Board in Fauteux. In particular, they mentioned the grievance’s merits, namely that the vaccine was a dangerous experimental therapy that they were entitled to refuse. Depriving them of pay was a form of coercion to force them to accept a contraindicated therapy. The obligation to go through all the grievance process levels only reinforced that coercion.

 

As in Fauteux, the grievors repeated the argument that the employer’s action was an attempt to force them to quit, which would constitute a constructive dismissal. Since a grievance against a dismissal can be heard directly at the grievance process’s final level, the grievances should be deemed to have been heard at the final level.

 

In Ms. El-Haraké’s case, the grievance was referred to the final level, but the referral to adjudication was made before the period allowed for the employer’s response had elapsed. The grievors submit that Fauteux cannot apply because that decision did not rule on the essence of the case, namely the constructive dismissal allegation. Like the Board in Fauteux, I will not decide whether the employer’s actions are akin to constructive dismissal or implicit termination. To decide that issue, I would have to be properly seized of the grievance.

 

However, because the grievors did not follow the grievance process, the Board does not have jurisdiction. The reasoning in Fauteux applies here. The Board does not have jurisdiction to hear the grievances.

 

The grievors submit that by requiring them to comply with the grievance process, the employer is unilaterally imposing its will.

 

The collective agreement provisions are negotiated. The bargaining agent and the employer have established the process to bring structure to the way that grievances are handled. The parties to the collective agreement recognize the importance of having an organized and predictable system. In the spirit of the Act, harmonious, not acrimonious, labour relations are encouraged. The process exists to encourage exchanges. The parties can deviate from it, but there must be mutual consent. The employer was under no obligation to consent.

 

Parliament also recognized the importance of respecting the steps and imposed this requirement in the Board’s enabling statute. There is no power to deviate from it.

 

I must state that the lack of jurisdiction involves respecting the grievance process steps. In its preliminary objection, the employer also alleged that the Board did not have jurisdiction to hear the grievance because the leave imposed on the grievors who did not comply with the Policy was administrative rather than disciplinary, and therefore, is not subject to the recourse under s. 209 of the Act. The Board is not ruling on the second objection in this decision.

 

The employer’s preliminary objection about non-compliance with the grievance process is allowed. The referral to adjudication is denied and the files will be closed.

 

 

Marie-Claire Perrault

A panel of the Federal Public Sector Labour Relations and Employment Board

 

 

c.c.

Nick Gualtieri (Representative)

[email address redacted]

 

Bryan Girard (Employer Representative)

[email address redacted]

 

Nathan Hoo (Union Representative)

[email address redacted]