Date: 20250129
File: 561-34-41789
Citation: 2025 FPSLREB 10
Labour Relations Act
|
Between
David Babb
Complainant
and
Public Service Alliance of Canada
Indexed as
Babb v. Public Service Alliance of Canada
Before: Pierre Marc Champagne, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Complainant: Himself
For the Respondent: Abudi Awaysheh, representative, and Farhad Shayegh, counsel
Decided on the basis of written submissions,
filed May 21, July 28, and August 17, 2020,
and September 15 and October 12, 2023.
REASONS FOR DECISION |
I. Complaint before the Board
[1] David Babb (“the complainant”) worked for the Canada Revenue Agency (“the employer”) from 2002 to 2010. He alleges that he has a disability that can be attributed to his chronic exposure to toxic chemicals that allegedly were present in his work environment during that employment period.
[2] In 2010, the employer terminated his employment following his extended period of absence related to his medical condition. Therefore, he grieved his termination with the support and representation of his bargaining agent, the Public Service Alliance of Canada (“the respondent”).
[3] On April 23, 2020, the Federal Public Sector Labour Relations and Employment Board (“the Board”) dismissed his grievances, which alleged that his termination had been improper and discriminatory and tainted by bad faith on the part of the employer. The complainant immediately requested the respondent’s support and representation to file a judicial review application of that decision (“the Board’s decision”) before the Federal Court of Appeal (FCA).
[4] Following multiple communications with the respondent’s legal counsel, he eventually made a complaint under s. 190(1)(g) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”), as he felt that the respondent had breached its duty of fair representation set out in s. 187. He submitted that despite his requests, he was still unable to determine, when he made his complaint, if he would be represented moving forward with respect to the judicial review application before the FCA.
[5] The respondent denies that it breached its duty of fair representation under the Act and made a preliminary request that the Board summarily dismiss this complaint, as it is either untimely or does not make out an arguable case under s. 187 of the Act.
[6] 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.
[7] For the following reasons, I find that the complainant’s allegations are either untimely or do not make out an arguable case of a breach of s. 187 of the Act.
II. Summary of the facts
[8] On April 23, 2020, the respondent’s legal counsel informed the complainant that the Board had rendered a decision on that same day denying the grievances that he had filed about his termination.
[9] From that date to the date on which this complaint was made, the complainant actively communicated with the respondent’s legal representative with respect to the Board’s decision. On May 21, 2020, the representative advised him that a judicial review application of the decision had been sent to and received by the FCA, to preserve his rights.
[10] The complainant did not agree with the generic content of the FCA application, as he thought that it did not reflect all the different matters that he wanted dealt with in relation to the termination of his employment or the health-and-safety issues that he had raised over the years with the employer.
[11] The complainant had also not been able at that point to obtain a confirmation from the legal representative that the respondent would support him in the next steps of the FCA application process. Therefore, he decided to make this complaint.
[12] The respondent subsequently decided to represent the complainant. The FCA eventually heard the judicial review application and issued a decision in March 2022 dismissing it.
III. Summary of the allegations and arguments
A. For the complainant
[13] During his employment with the employer, the complainant acted as a representative for the respondent and was involved with his workplace Occupational Health and Safety Committee. Over his tenure, he frequently raised and dealt with workplace issues related to occupational health and safety. He also engaged in several recourses related to, among other things, his disability, employment rights, Canada Labour Code (R.S.C., 1985, c. L-2; CLC) rights, human rights, and collective agreement rights.
[14] The complainant alleges that as a result of his termination, most of the recourses that he had launched against the employer over the years halted, were put in abeyance, or were simply never addressed. He feels that he has been abused and exploited in every possible way in the pursuit of his human rights, dignity, and self worth. He claims that recently, he was advised that his outstanding matters remain suspended as his termination remains upheld.
[15] The complainant suggests that since 2007, the respondent and the employer have had an agreement in place to ensure that all his grievances and recourses cease. That agreement is apparently still in place, as no respondent representative would even speak to him about any ongoing issues related to his employment. While he had conversations and email exchanges with the respondent’s legal counsel, the respondent’s representatives were absent from those communications, and their identities were never disclosed to him. Therefore, he feels that his membership in the bargaining agent was not and is still not being acknowledged.
[16] The complainant states that this complaint is very much an ongoing concern related to a previous Board decision, Babb v. Gordon, 2009 PSLRB 114 (“Babb (PSLRB)”). He claims that it is also associated with a number of other decisions and files related to his employment rights or to programs and benefits to which he would be entitled.
[17] The complainant is convinced that the respondent intentionally ran out the timelines for it to submit what he qualifies as a “blank” application to the FCA. He eventually sought to add content to it and made his wishes known, but the respondent completely and utterly ignored him.
[18] The complainant emphasizes that he waited more than three years for the Board’s decision and that when he received it, it was clear to him that it was not responsive to his numerous rights related to the grievances that he had filed in response to his termination. He believes that had the respondent not turned a blind eye to the discrimination that he was subjected to rather than pursuing its own agenda, he would not be at this point today.
[19] The Board’s decision clearly made it evident to him that his rights were not protected, as the respondent’s interests had overridden his grievances, and his rights were superseded by its interests. His rights were not protected, and there was no indication within the 90-day period before his complaint was made that they would be protected going forward. His immediate concern was that his rights continued to be infringed and that his ability to seek recourse could be statute-barred.
[20] He suggests that his grievances were highjacked. The respondent was well aware that his injuries were related to his workplace, and it had information that could or should have been brought to the Board. He still does not know why the respondent did not put all his issues related to his workplace-injury grievances before the Board before it issued its decision, but it can be described, at best, as bad faith or discrimination.
[21] According to the complainant, the Board’s decision is full of errors, based on perjured evidence, contrary to employment and human rights legislations, and a direct violation of his rights under 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 (UK); “the Charter”). His termination was a camouflage to remove his abilities to seek recourse under the CLC and to seek coverage under the Government Employees Compensation Act (R.S.C., 1985, c. G-5).
[22] With respect to the timeliness of his complaint, the complainant suggests that many occurrences within the 90 days before it was made were glaring abuses of his Charter and human rights. He reiterates that the respondent has information and documentation that he submitted to it in August 2019, as he wanted it brought to the Board’s attention after the hearing ended but before the decision was issued. It was not.
[23] He also made comments in November 2019 with respect to the final written submissions to be filed before the Board in relation to his termination grievances. When he read the submission that the respondent sent to the Board, he was not satisfied, and he repeatedly asked that further submissions be made and sent to the Board, but the respondent chose not to.
[24] When the complainant read the Board’s decision on April 23, 2020, he was devastated. Everyone involved in his case should have understood the discriminatory effect of the sham that he was subjected to. He submits that the Board’s decision upheld that whole situation and that it was rendered within the 90-day period before he made this complaint.
B. For the respondent
[25] The respondent submits that the complainant’s concerns are based on his belief that it did not support him in the adjudication of his termination grievances and in applying to have the FCA judicially review the Board’s decision.
[26] With respect to the representations it made to support the complainant’s termination grievances, the respondent submits that the last interaction that its legal representative had with him was in November 2019. Therefore, as the complaint was made on May 21, 2020, those allegations are untimely, as they were made well beyond the 90-day statutory period under s. 190(2) of the Act.
[27] With respect to the representations that it made in the context of the judicial review application, it submits that the complainant established no prima facie violation of s. 190 of the Act. Rather, the documentation demonstrates that it did its utmost in representing him by hiring and paying for external counsel to represent him at the hearing of his grievances and to file the judicial review application.
[28] The respondent also submits that after the application was made to the FCA, it reiterated many times that it wanted to work with the complainant and that it asked him to sign a retainer agreement. It continued to communicate with him, and it provided its analysis with respect to the application’s prospects before the FCA. Moreover, the respondent’s legal representative ultimately represented him before the FCA (see Babb v. Canada (Attorney General), 2022 FCA 55 (“Babb (FCA)”).
[29] The respondent refers to Beniey v. Public Service Alliance of Canada, 2020 FPSLREB 32, and Osman v. Canada Employment and Immigration Union, 2020 FPSLREB 40, and suggests that the Board ruled on a similar complaint, as the complainant did not agree with the strategy adopted for the judicial review application. The Board determined in those decisions that mere dissatisfaction and disagreement with the legal strategy between an employee in the bargaining unit and the bargaining agent is insufficient to establish a breach of s. 187 of the Act.
[30] The respondent also refers to Brenner v. Professional Institute of the Public Service of Canada, 2014 PSLRB 2, in which the Board dismissed a duty-of-fair-representation complaint for mootness as its foundation had disappeared or was no longer at issue. In this case, the respondent submits that it did file a judicial review application. The complainant cannot legitimately contend that at the deadline to make the FCA application, he was unable to determine if he would be represented moving forward, as he had been informed that an application had been filed.
[31] The allegations according to which the respondent never called the complainant to discuss the Board’s decision with him are baseless. Its legal representative was duly mandated to act on the respondent’s behalf with respect to his files. So, when he communicated with the legal representative, in fact, he communicated with the respondent.
[32] The complainant does not elaborate as to how the alleged conduct was arbitrary, discriminatory, or indicative of bad faith. The facts that he brought forward, even if taken as proven at this stage, are insufficient to establish any wrongdoing by the respondent.
[33] As depicted in Beniey and Osman, the duty of fair representation does not mean that members of a bargaining agent have an absolute right to representation or final say in how the bargaining agent carries out its obligations. In the present case, the complainant was in communication with a duly mandated representative at all relevant times, and the respondent analyzed the situation and decided to proceed with an application that was filed before the FCA on his behalf within the required time. Therefore, it satisfied its obligations.
IV. Reasons
[34] This complaint was made under s. 190(1)(g) of the Act and is based on allegations of a breach of s. 187, which states that a bargaining agent should not act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit.
[35] Normally, the complainant has the burden to demonstrate that such a breach occurred. However, the respondent asks that the Board summarily dismiss this complaint on two grounds, as reportedly it is untimely or does not make an arguable case.
[36] After briefly describing the legal test that applies to each of those grounds, I will set out the complainant’s relevant allegations and provide my analysis with respect to each of them.
A. The relevant legal tests
[37] For the complainant’s allegations to be considered timely, s. 190(2) of the Act clearly establishes that only the facts that happened in the 90 days before it was made can be part of it. However, the Board may consider facts that preceded those 90 days in its analysis of the complaint’s context (see Perron v. Customs and Immigration Union, 2013 PSLRB 13 at para. 23).
[38] In this case, the 90-day period was from February 21 to May 21, 2020. 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 has not suggested the existence of any such exceptional circumstances.
[39] The test with respect to the second ground for the respondent’s preliminary request is well established in the Board’s jurisprudence and requires that if the complainant’s factual allegations are considered true, I determine whether he has made out an arguable case that the respondent breached s. 187 of the Act.
[40] A bargaining agent will be found to have breached the duty of fair representation if its representation was arbitrary, discriminatory, or in bad faith.
[41] As the Supreme Court of Canada has stated, in the context of the duty of fair representation, arbitrariness is related to the quality of a bargaining agent’s representation. Even absent an intent to harm, a bargaining agent must not handle one of its members’ matters negligently or carelessly (see Noël v. Société d’énergie de la Baie James, 2001 SCC 39 at para. 50).
[42] Discriminatory conduct by a bargaining agent in the same context would occur if it were to treat one of its members (or group of members) adversely or differently than its other members for a reason not validly or reasonably related to labour relations, such as a personal characteristic or a prohibited ground of discrimination (see Corneau, at para. 109; Beniey, at para. 69; Payne v. Public Service Alliance of Canada, 2023 FPSLREB 58 at paras. 84 to 86; and Noël, at para. 49).
[43] Finally, to constitute bad faith in the context of s. 187 of the Act, a bargaining agent’s actions, decisions, or behaviours would have to demonstrate a form of personal hostility toward one of its members or a behaviour that could be qualified as oppressive, dishonest, malicious, or spiteful (see Corneau, at para. 110; Beniey, at para. 67; Sganos, at para. 97; and Noël, at para. 48).
[44] The complainant’s burden in an arguable-case analysis is recognized as being lower than it would be for the merits of his case. However, he must still put forward all the factual allegations supporting his complaint and addressing all the breaches alleged in it (see Payne, at paras. 59 and 60).
[45] To put it simply, at this stage, the Board need only decide which of the complainant’s relevant allegations, if any and 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.
B. The complainant’s allegations, generally
[46] Once again, the scope of a duty-of-fair-representation complaint is limited only to determining whether a breach of s. 187 of the Act occurred within the 90-day period that I mentioned earlier.
[47] The complainant filed a 22-page document as his primary written submissions. It was accompanied by more than 150 pages of supporting documentation. In sum, the written submissions and the supporting documentation contain a repetitive narration of work-related issues stretching back to 2008, as well as some excerpts of legislation, case law, and email exchanges that he had with the employer, the respondent and its legal representative, and the Board. Those email exchanges occurred primarily between 2019 and 2021 but also as far back as 2008.
[48] While all the documents provided by the complainant were not clearly organized or had their relevance explained, I carefully reviewed them all. In the following paragraphs, I will describe what I believe to be the essence of his allegations.
[49] The complainant has a long history of legal or administrative disputes with his former employer. But it must not be forgotten that this complaint is only against the respondent.
[50] Therefore, all the facts and allegations against the employer suggesting that it abused the complainant’s rights or conspired to prevent him from exercising the different recourses that could have been available to him are not relevant to this case, as they are not related to the respondent’s actions or behaviours. I will not consider those allegations (see Burns v. Unifor, Local 2182, 2020 FPSLREB 119 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).
[51] The same can be said with respect to the complainant’s suggestion that this complaint is a continuation of many of his previous complaints or recourses. Furthermore, he often suggests that the Board should look into the previous arguments that he made in different contexts or about previous decisions rendered in some of his recourses or those involving some of his colleagues who he suggests were in a similar situation.
[52] The complainant must understand that when it deals with a complaint such as this one, the Board does not act as an investigative body (see Burns, at para. 160; and McRaeJackson v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), 2004 CIRB 290 at para. 49), and that it does not sit in appeal or as a reviewing body of previously issued decisions (see Walcott v. Public Service Alliance of Canada, 2023 FPSLREB 54 at para. 29; and Osman, at para. 17). Also, the complainant cannot and should not use this complaint to attempt to resolve outstanding issues with the employer (see Corneau v. Association of Justice Counsel, 2023 FPSLREB 16 at para. 95).
[53] The complainant specifically refers to a previous complaint that he made in 2009 and suggests that this complaint is a direct continuation of that case. It cannot be. Not only are the allegations that were raised in that case now untimely, as they predate the decision that was rendered 15 years ago, but also that decision dismissed his complaint, as it was already deemed untimely when the decision was made (see Babb (PSLRB)).
[54] In fact, a close and comprehensive reading of the complainant’s submissions reveals that only very few of his specific factual allegations fall, or could fall, within the 90-day period set out in s. 190(2).
[55] Ultimately, the primary and central event or element that forms part of many of the complainant’s allegations and that occurred within the 90 days before the complaint was made is the Board’s decision that was rendered on April 23, 2020, and that was communicated to him on the same day by the respondent’s legal representative.
[56] For that reason, my analysis will focus on the different elements and allegations in his complaint that are related to the Board’s decision and determine if they are either timely or could make an arguable case of a breach of s. 187 of the Act.
[57] However, the complainant’s multiple allegations attacking the Board’s decision itself will not form part of that analysis, as they are also not relevant to this case.
[58] Clearly, the complainant does not agree with the Board’s decision. But as I already mentioned earlier in this decision, he must understand that this complaint is not the appeal mechanism that he seems to believe it is. It was open to him to file a judicial review application before the FCA, which is exactly what the respondent did on his behalf on May 21, 2020. It was dismissed on March 30, 2022 (see Babb (FCA)).
C. Which, if any, of the complainant’s allegations are untimely?
1. The exchanges with the respondent before the Board’s decision
[59] Many of the complainant’s allegations suggest that he would not have agreed with some, if not most, of the respondent’s strategies, submissions, and representations during the proceedings that led to the Board’s decision.
[60] Not only has the Board’s jurisprudence clearly established that a disagreement is not sufficient to support a complaint under s. 187 (see Gagnon v. Canadian Association of Professional Employees, 2022 FPSLREB 91 at para. 160; Sganos v. Association of Canadian Financial Officers, 2022 FPSLREB 30 at para. 102; Horac v. Public Service Alliance of Canada, 2023 FPSLREB 1 at para. 76; and Osman, at para. 22) but also, those allegations are untimely, as they predate the 90-day period.
[61] More precisely, the complainant sometimes refers to his discussions or exchanges with the respondent’s legal representative in August and November 2019 with respect to the content of the written submissions to be submitted to the Board. Those events are clearly untimely.
[62] However, he seems to suggest that after those discussions, he was left in the dark and was not made aware as to whether the respondent would accept or bring forward his suggestions or comments. The Board’s decision would have been the moment when he realized that it had not done so.
[63] The fact that the Board’s decision, which was issued during the 90-day period, ended and crystallized the outcome of the proceedings related to the complainant’s termination grievances does not change the determination of the timeliness of his allegations related to those proceedings.
[64] The complainant had all the necessary knowledge and information in November 2019, or before then, to enable him to make a complaint against the respondent if he felt that it failed its duty of fair representation (for a similar conclusion, see Besner v. Public Service Alliance of Canada, 2023 FPSLREB 56 at para. 72).
[65] The submissions and the documentation that the complainant submitted to support his complaint demonstrate that he reviewed the final submissions that the respondent prepared and submitted to the Board and that he knew, or should have known, in November 2019 that it was not addressing what he now suggests it should have.
[66] As the Board decided similarly in Paquette v. Public Service Alliance of Canada, 2018 FPSLREB 20, I find that all the allegations related to the hearing that led to the Board’s decision or to the proceedings that preceded the date on which it was rendered are untimely (see Paquette, at paras. 34 and 35).
2. The respondent’s refusal to communicate with the complainant
[67] The complainant alleges that the respondent refused to communicate with him following an agreement that it allegedly made with the employer in 2007. He submitted emails that he suggests would demonstrate that that was still the case at the time relevant to this complaint.
[68] I find that this allegation is untimely. While the complainant submitted copies of emails that would, according to him, support a conclusion that this would constitute a breach that occurred within the relevant period, I find that it demonstrates the opposite.
[69] Among those email excerpts, only two are related to the complainant’s personal situation.
[70] The other email exchanges are between the respondent and one of his former colleagues, who allegedly was in the same situation. Those email exchanges are irrelevant. They do not pertain to the complainant’s specific situation. Furthermore, they are dated after this complaint was made and refer to the respondent’s actions, decisions, and behaviours that occurred after the complaint was made.
[71] The first relevant email suggests that on or around May 19, 2021, the complainant requested the intervention of the respondent’s national president to have his membership reinstated. That request remained unanswered. In his submissions, the complainant explains that he decided to make that request as he thought that it was the only way to regain direct access to the respondent, since it had revoked his status as a member in good standing. He also refers once again to Babb (PSLRB) as the genesis of that long-lasting dispute over his standing as a member of the respondent.
[72] Babb (PSLRB) was rendered following a complaint that he made after he was denied access to a meeting that the respondent held for its members in July 2008 while he was on extended leave without pay. In August 2008, one of the respondent’s regional vice presidents explained to him that he was not allowed to access such a meeting because he was no longer a member in good standing, as he was no longer paying union dues since he had been on extended leave without pay.
[73] The second relevant email, dated March 6, 2016, is from the complainant to an unknown recipient. In that email, he explains that he tried to contact the respondent’s local president, as he sought her help with respect to his workplace issues. It mentions that the local president then told him that he had no right to contact the respondent, as he was not a member and therefore was not entitled to assistance or representation.
[74] Hence, it seems that the complainant, through that allegation, is attempting to revive a dispute that not only has already been dismissed by the Board but also that he has known of since 2016, if not 2008. The new requests that he made in May 2021 on the same topic do not constitute a valid ground for a new complaint, even if the requests were made within the 90-day period preceding the complaint (see Vaxvick v. Public Service Alliance of Canada, 2023 FPSLREB 14 at para. 37; Besner, at para. 69; Éthier v. Correctional Service of Canada, 2010 PSLRB 7 at para. 21; and Nemish v. King, 2020 FPSLREB 76 at para. 37). They are still untimely, as the Board already stated in 2009 in Babb (PSLRB) (for a similar conclusion, see Beaulieu v. Public Service Alliance of Canada, 2023 FPSLREB 100 at para. 46).
[75] Moreover, contrary to the 2008 complaint that led to the Babb (PSLRB) decision, this complaint is about the respondent’s duty of fair representation under s. 187 of the Act, not a bargaining agent’s actions covered by ss. 188(b) or (d). Therefore, it is not meant to address a situation such as the unanswered request he made in May 2021 to have his membership reinstated.
D. Do any of the remaining allegations make out an arguable case?
1. The judicial review application
[76] The complainant alleges that as of the date his complaint was made, he did not know if he would benefit from the respondent’s support and representation with respect to the FCA application.
[77] While the respondent submits that the complainant knew that it had already filed the application before he made his complaint, it provided copies of emails dated May 14 and 19, 2021, from its legal representative that also make it clear that the application was filed on a pro forma basis, to preserve the complainant’s rights.
[78] Moreover, those emails specify that the application was intentionally drafted generically, to enable the complainant to further customize the allegations in it if he had to represent himself, should the respondent have declined to provide its support and representation for the next step before the FCA. Therefore, one can understand the uncertainty that the complainant felt, as he expressed it in his complaint.
[79] Nonetheless, when the complaint was made, the respondent had not yet denied the complainant support and representation for the FCA application. It was the opposite; it took its responsibility seriously by filing such an application while it was going through its decision-making process, to make sure that the complainant’s rights would be preserved.
[80] Therefore, it is impossible for the Board to consider the respondent’s actions as contrary to s. 187 of the Act. They reflect behaviour that was anything but arbitrary or discriminatory or the result of bad faith.
2. Communications with the respondent’s legal representative
[81] The complainant alleges that after the Board’s decision, none of the respondent’s representatives or officials contacted him, to discuss the file. The respondent’s legal representative also refused to specify who, from the respondent, provided instructions.
[82] As for the allegation that none of the respondent’s representatives or officials contacted him to discuss the Board’s decision or the potential FCA application, it is refuted by the documents and written submissions that the complainant filed and made.
[83] In fact, multiple times, the respondent’s legal representative contacted him, verbally or in writing, to discuss the Board’s decision and the possibility of asking for its judicial review.
[84] The respondent hired a legal representative to provide representation for the complainant. The respondent duly mandated the legal representative to act on its behalf, and when that representative discussed the matter with the complainant, it was as if he was discussing it with the respondent.
[85] As the Board has already stated in its previous decisions, the duty of fair representation does not require that the respondent follow its member’s direction as to who is to provide representation (see Hancock, at para. 93). And when it uses its funds to hire a lawyer to represent a complainant, it is certainly entitled to give that lawyer the mandate and directions that it considers appropriate in the circumstances (see Beniey, at para. 66; and Lefebvre v. Professional Institute of the Public Service of Canada, 2024 FPSLREB 26 at para. 34), provided that those directions are not arbitrary, discriminatory, or in bad faith.
[86] The complainant’s right to fair representation does not extend to the right to choose who from the respondent he discusses with, and I cannot conclude that — in the circumstances of this case — this allegation makes out an arguable case with respect to a breach of s. 187 of the Act.
3. Allegations specifically related to arbitrariness, discrimination, or bad faith
[87] In terms of factual allegations related to discrimination, in his submissions, the complainant mostly refers to how he considers he was discriminated against by all the actors involved in all his employment and workplace issues over the years. This is not relevant to the decision to be made in this case, as this complaint is against the respondent.
[88] With respect to the respondent specifically, he refers only to the discrimination that he alleges that he suffered from its decision in 2008 to revoke his status as a member in good standing. As I explained earlier in this decision, the Board already dismissed that allegation. Furthermore, I also explained earlier why I consider this allegation untimely.
[89] Much of the complainant’s remaining submissions constitute bald assertions that the respondent’s failure to advocate for him over the years in relation to his alleged workplace-related injury amounts to bad faith or discrimination.
[90] As an example, the complainant states that he has been abused and exploited in every conceivable way in the pursuit of his rights. He also states that the malice and vengeance that he has been subjected to have gone far beyond anything that he could ever have imagined. He often repeats or suggests that he was treated adversely, either directly or indirectly. He further suggests that he was “thrown out” as if he were “trash” and that he was treated as such. Finally, he states that he is tired of the “Old Boys Club” treatment he has received and that he finds it hard not to perceive the whole process as a sham or a camouflage, as he believes that his grievances were intentionally buried.
[91] Even if I must take the complainant’s alleged facts as true for the purpose of an arguable-case analysis, certain exceptions apply. To be taken as true in the context of an arguable-case analysis, factual allegations must have an air of reality. Arguments and opinions need not be taken as proven; nor need be mere assumptions, speculations, or accusations (see Kemp v. Public Service Alliance of Canada, 2024 FPSLREB 87 at paras. 53 and 54; see also Payne, at paras. 60 and 91; Sganos, at paras. 80 and 81; Beniey, at para. 57; Archer, at para. 29; and Corneau, at para. 34).
[92] With respect to discrimination, the complainant cites in his submissions a paragraph from a Board decision that states that discrimination is not a question of intention but of discriminatory effects (see Duval v. Treasury Board (Correctional Service of Canada), 2020 FPSLREB 53 at para. 48). While I agree with that statement, it is important to note that nonetheless, the complainant had to demonstrate that the bargaining agent treated him adversely or differently than its other members for a reason not validly or reasonably related to labour relations. He did not.
[93] The complainant also refers me to a paragraph of a decision from the Supreme Court of Canada (British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62 at para. 123) that comments on the objective of the British Columbia Human Rights Code ([RSBC 1996] chapter 210) and its application to the interpretation of a specific section of that code. The complainant does not suggest anything as to how this would apply to his case, and I find it completely irrelevant to the present analysis.
[94] The complainant brought forward nothing in his submissions as to how his allegations could demonstrate arbitrariness, discrimination, or bad faith by the respondent.
[95] As mentioned earlier, bald assertions, made without any other specific factual and timely element, need not be taken as true and are not sufficient to demonstrate the existence of an arguable case of arbitrariness, discrimination, or bad faith.
[96] I find that none of those characteristics apply to this case.
V. Conclusion
[97] The complainant did not make timely allegations that could make out an arguable case that the respondent’s conduct was arbitrary, discriminatory, or in bad faith.
[98] The respondent also argued that the Board could conclude that the subject matter of this complaint is now moot, and it referred me to some jurisprudence that would support its argument. Based on the documentation on file, ultimately, the respondent supported and represented the complainant before the FCA, and its legal representative supported him during the proceedings and the hearing of the judicial review application.
[99] As I have concluded that most of the complainant’s allegations are untimely and that he did not make out an arguable case of a breach of s. 187 of the Act for those allegations that could be considered timely, I need not reach a conclusion with respect to mootness.
[100] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
VI. Order
[101] The respondent’s preliminary objections are allowed.
[102] The complaint is dismissed.
January 29, 2025.
Pierre Marc Champagne,
a panel of the Federal Public Sector
Labour Relations and Employment Board