BETWEEN:
and
PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA
Heard at Edmonton, Alberta, on March 15, 2007.
Judgment delivered at Ottawa, Ontario, on April 10, 2007.
REASONS FOR JUDGMENT BY: DESJARDINS J.A.
CONCURRED IN BY: LÉTOURNEAU J.A.
RYER J.A.
Date: 20070410
Docket: A-478-05
Citation: 2007 FCA 142
CORAM: DESJARDINS J.A.
LÉTOURNEAU J.A.
RYER J.A.
BETWEEN:
KATHERINE McCONNELL
Applicant
and
PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE OF CANADA
Respondent
REASONS FOR JUDGMENT
[1] The applicant, Katherine McConnell, seeks judicial review of a decision of the Canada Public Service Labour Relations Board (the PSLRB or the Board), 2005 PSLRB 140, which dismissed for delay her complaint filed under section 23 of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 (the PSSRA).
THE FACTS
[2] The facts are not in dispute and may be summarized as follows.
[3] The applicant began working with the Canada Customs and Review Agency (CCRA) in about 1992. In 1999 and 2000, she became involved in a number of disputes with her employer and co-workers. Her bargaining agent, the respondent, represented her on a number of matters. The applicant was dissatisfied with the quality of representation and refused to cooperate with the respondent’s representatives. On November 21, 2000, she was advised that the respondent would no longer represent her, effective December 1, 2000.
[4] The applicant took no steps to challenge the respondent’s decision until August 19, 2002, when she filed a statement of claim in the Alberta Court of Queen’s Bench. The statement of claim was served on the respondent on October 21, 2003. The respondent brought a motion to dismiss for want of jurisdiction. By consent, the matter was adjourned sine die while Ms McConnell sought legal advice and legal aid and funding.
[5] On September 21, 2002, the applicant’s employment with CCRA was terminated for “medical incapacity”. She commenced a number of actions and raised a number of concerns in relation to the representation provided by the respondent and the circumstances surrounding her dismissal from CCRA. On September 22, 2002, she filed before the Board a termination grievance against her employer alleging wrongful dismissal. She requested that the respondent provide representation with respect to her wrongful dismissal allegation.
[6] On March 15th, 2004, the applicant filed a complaint with the Public Service Staff Relations Board (the PSSRB or the old Board) under section 23 of the PSSRA alleging that the respondent had breached its duty of fair representation under subsection 10(2) by failing to represent her on a number of matters, including a worker’s compensation claim filed in April 2000, a human rights complaint filed in July 2000, and a wrongful dismissal claim filed in September 2002. She sought an apology from the respondent, among other corrective action.
[7] On April 1, 2005, the Public Service Labour Relations Act, S.C. 2003, c. 22 (the PSLRA) replaced the PSSRA, and the PSLRB replaced the former PSSRB. The PSLRB was granted the power, under Part 5 of the Public Service Modernization Act, S.C. 2003, c. 22, s. 39, to dispose of proceedings before the old Board in accordance with the new statute, the PSLRA.
[8] The respondent raised two preliminary issues before the Board, namely (1) that the complaint should be dismissed because it was untimely, and (2) that the Board did not have jurisdiction over her allegations on the handling of her workers compensation and human rights complaints or on the ordering of an apology. These issues were dealt with by way of written submissions.
[9] On September 13th, 2005, the Board dismissed for delay the applicant’s complaint against the respondent. The Board found that she had been pursuing legal action on a number of fronts since the termination of her employment, which the Board attributed to the year 2000. She had filed her complaint against the respondent only on March 15, 2004. Considering, however, that the respondent had been made aware of her complaint by way of allegations contained in her statement of claim filed before the Alberta Court of Queen’s Bench and served on the respondent on October 21, 2003, the Board adopted that date, as it was more favourable to the applicant. It found that the delay, close to three years, was excessive and warranted the dismissal of the complaint. The applicant had not met her burden of establishing that circumstances exceptional or outside of her control prevented her from acting any sooner.
[10] The applicant now asks this Court to review the Board’s decision.
THE COMPLAINT
[11] The complaint filed by the applicant, who was unrepresented at the time, read in its relevant part (Applicant’s Record, pages 52-54):
My complaint is as follows:
PIPSC’s has failed to take any steps to secure my employment rights in the following matters:
WCB claim filed in April 2000
Return to work following a workplace injury from April 2000
Human Rights complaint filed in July 2000
Disciplinary actions taken by employer during 1999-2002
PSSRB jurisdiction issues with CCRA regarding termination
Representation in adjudication proceedings
PIPSC also acted in an arbitrary fashion and showed bad faith in:
Failing to thoroughly investigate my allegations of sexual harassment, personal harassment and discriminatory acts by CCRA managers seriously
By making sport of my situation by making libellous inflammatory remarks
By offering no assistance to assist me back to work following a workplace injury
By failing to thoroughly investigate my concerns over Dave Riffle competency
By deliberately deceiving me as to intentions
By failing to investigate my complaints regarding Lee Bettencourt
By failing to investigate all the employment matters financial and otherwise before it filed as grievances
By having unauthorized discussions with CCRA management with the intent purpose to undermine my position
Failing to allow numerous grievances on financial matters and otherwise to proceed to adjudication
Failing to advise me how to proceed with ALL the outstanding matters, deadlines, rights, time limits, given that they refused to represent me
By placing me under unreasonable standard and expectations
I recently advised Nelligan Payne O’Brien that I wanted PIPSC to fund my statement of claim against CCRA for wrongful dismissal which was drafted by a lawyer. No response was received.
I recently advised Nelligan Payne O’Brien that I wanted PIPSC to fund my human rights complaint which includes the duty to accommodate my return to work. No response was received.
THE STANDARD OF REVIEW
[12] The Supreme Court of Canada in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 (the PSAC 1993 case) found that decisions of the PSSRB are reviewable on the patent unreasonableness standard. It explained, at pages 962-963 of its reasons:
Why Should There be Deferential Treatment of This Board by the Courts?
There are a number of reasons why the decisions of the Board made within its jurisdiction should be treated with deference by the court. First, Parliament in the Act creating the Board has by the privative clause indicated that the decision of the Board is to be final. Secondly, recognition must be given to the fact that the Board is composed of experts who are representative of both labour and management. They are aware of the intricacy of labour relations and the delicate balance that must be preserved between the parties for the benefit of society. These experts will often have earned by their merit the confidence of the parties. Each time the court interferes with a decision of such a tribunal confidence is lost not only by parties which must appear before the Board but by the community at large. Further, one of the greatest advantages of the Board is the speed in which it can hold a hearing and render a decision. If courts were to interfere with decisions of the Board on a routine basis, victory would always go to the party better able to afford the delay and to fund the endless litigation. The court system itself would suffer unacceptable delays resulting from the increased case load if it were to attempt to undertake a routine review.
None of this is to say that some form of review is not salutary and necessary. Certainly, the courts are eminently well suited for determining whether the Board has exceeded the jurisdiction which is granted to it by its enabling statute. Further, the courts are in the best position to determine whether there has been such an error in the procedure followed by it that there has been a denial of natural justice which would result in a loss of jurisdiction by the tribunal. As well, all parties have the right to be protected from a decision that is patently unreasonable. Beyond that the courts need not and should not go. A board which is created and protected by a privative clause is the manifestation of the will of Parliament to create a mechanism that provides a speedy and final means of achieving the goal of fair resolution of labour‑management disputes. To serve its purpose these decisions must as often as possible be final. If the courts were to refuse to defer to the decisions of the Board, they would negate both the very purpose of the Act and its express provisions.
[13] The application of the pragmatic and functional approach and a consideration of the four contextual factors (the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question) lead me to conclude that the decision of the Board to dismiss the applicant’s complaint for delay is also reviewable on the patent unreasonableness standard.
Privative clause
[14] Decisions of the Board are protected by a privative clause (section 51 of the PSLRA). The existence of a privative clause, albeit different to that currently found in the PSLRA, was a key factor in the PSAC 1993 case.
Expertise, purpose of the legislation and nature of the question
[15] The applicant filed her complaint under section 23 of the PSSRA. Under that statute, there was no time limit for the filing of complaints. The PSLRA imposes a 90-day time limit for the filing of complaints. Despite the Board having to dispose of the complaint in accordance with the PSLRA, the Board explained that this did not have the effect of retroactively applying time limits. Rather, the question of delay had to be dealt with according to the principles developed under the PSSRA.
[16] Under the PSSRA, the old Board developed a practice of requiring complainants who did not file their complaint within a reasonable time frame to establish that circumstances which are exceptional or outside their control prevented them from acting any sooner. When long delays occur, the prejudice to the other party was presumed: see Walcott v. Turmel, 2001 PSSRB 86; Harrison v. Public Service Alliance of Canada, 2001 PSSRB 45; Teeluck v. Public Service Alliance of Canada, 2001 PSSRB 45.
[17] The issue before the Court is therefore the Board’s application of a test that the old Board developed to deal with complaints that were not filed on a timely basis. The question of whether a complaint should be dismissed for delay is a question of mixed fact and law which relates to the finality of decisions in labour matters and their speedy enforcement. It falls squarely within the Board’s jurisdiction over labour relations matters. The Board has greater expertise than the courts in matters falling within its own jurisdiction.
Conclusion
[18] Having regard to the four contextual factors, I conclude that decisions of the Board here at issue on questions of mixed fact and law are reviewable according to the patent unreasonableness standard.
[19] As for issues of natural justice or procedural fairness, the Court simply determines whether those principles were breached. Such issues do not attract the functional and pragmatic analysis: see CUPE v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 at paragraph 100; Canada (Attorney General) v. Fetherston, 2005 FCA 111, [2005] F.C.J. No. 544 at paragraph 16; Transport Besner Atlantic Ltée et al., 2006 FCA 146, [2006] F.C.J. No. 641 at paragraph 26.
ANALYSIS
[20] The applicant claims that the Board based its decision on an erroneous finding of fact when it stated that her employment was terminated in 2000. Consequently, she says, its decision is patently unreasonable.
[21] There is no doubt that the Board erred on the date of the termination of the applicant’s employment. Her employment was terminated effective September 4, 2002. I find, however, that the Board’s decision to dismiss the complaint for delay was not based on the termination date. The error made by the Board is therefore inconsequential.
[22] The record shows that the respondent declined to represent her “in her dealings with the employer”, effective December 1, 2000 (see letter from the respondent, A.R. p. 30). The Board retained this date. “This …”, it wrote, “… is when the critical event that triggers the complaint occurred and is the date from which the length of the delay should be determined” (paragraph 13 of the Board’s reasons). Some thirty-nine (39) months elapsed from that date of December 1, 2000, to the date of the filing of the complaint, March 15, 2004. The Board, however, retained as the final point the date of October 21, 2003, when the applicant served on the respondent the statement of claim in the action she took against the respondent before the Alberta Court of Queen’s Bench (paragraph 13 of the Board’s reasons). The Board was willing to accept that the respondent was made aware of the complaint on that date since the allegations in the statement of claim included all the allegations in the complaint. The Board concluded that the delay in pursuing the complaint was “close to three years” (paragraph 27 of the Board’s reasons).
[23] The applicant submits that her request to the respondent to provide representation with respect to the termination of her employment in 2002 was a fresh request that restarted the clock and that it was not covered by the respondent’s original refusal to represent her in 2000.
[24] The Board found otherwise. It stated that the continued requests, to the extent that they related to the original request for representation on her grievances and human rights complaints, remained untimely. The Board indicated that the decision of the respondent not to represent her on these matters was clearly communicated in 2000 “and repeated requests on the same matters cannot re-start the clock” (paragraph 22 of its reasons).
[25] The Board recognized that the applicant made additional requests to the respondent not covered by its original refusal to represent the complainant, such as on the wrongful dismissal claim against CCRA. The Board attributed to sometime in 2004 the refusal of the respondent to represent her with respect to her wrongful dismissal claim. Since the wrongful dismissal claim set out identical grounds to those in the grievances and human rights complaints, the respondent’s initial refusal could be taken to include any subsequent versions of the same allegations. Transforming grievances and human rights complaints into an action did not change the substance of the dispute nor did it require the bargaining agent to issue a fresh refusal (paragraph 25 of its reasons).
[26] It cannot be said that these findings were patently unreasonable.
[27] The applicant further submits that the Board failed to consider the totality of her allegations. She says that the Board failed to investigate her allegation of sexual harassment and personal harassment by CCRA managers and failed to appreciate that the respondent did not advise her on the manner in which she should proceed on all outstanding matters.
[28] The Board never got to the merits of her allegations. It only ruled on the respondent’s preliminary objection regarding the timeliness of the complaint. Once it ruled that the applicant had not demonstrated that there were circumstances exceptional or outside her control that would justify a delay of “close to three years” in pursuing a complaint against the respondent, the Board had no choice but to dismiss the complaint.
[29] The applicant invokes finally the doctrine of legitimate expectations.
[30] Her claim is directed firstly at the respondent, her bargaining agent: see her affidavit at paragraph 10; Applicant’s Record, page 26; and paragraph 68 of her memorandum of fact and law. Basically, she argues that she had a reasonable expectation that, irrespective of their previous disagreements, the bargaining agent would represent her in her dispute with CCRA relating to the termination of her employment. This is an issue that goes to the merit of the applicant’s dispute with her bargaining agent. It is an issue that was not before the Board in the present proceedings. It is therefore one that I would not address.
[31] Her claim concerning the doctrine of legitimate expectations is also directed at the Board (see paragraphs 76, 77, 78, 79 and 80 of her memorandum of fact and law). She claims she had legitimate expectations that the Board would consider all her allegations before making a decision regarding delay. This is not a case where the doctrine is meant to apply (Brown and Evans, Judicial Review of Administrative Practice in Canada, loose-leaf edition 7:2430 ff; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paragraph 26; Pulp, Paper and Woodmakers of Canada Local 8 v. Canada (Minister of Agriculture, Pesticides Directorate) (1994), 174 N.R. 37 at paragraphs 37 to 42 (F.C.A.)). When a Board comes to the conclusion that a complaint is untimely, it does not turn its mind to the allegations made in the complaint.
[32] I would therefore dismiss this application.
COSTS
[33] At the opening of the hearing, the applicant informed the Court that she wished to withdraw the allegations of “fraud or perjured evidence” set out in her notice of application.
[34] The respondent is nevertheless seeking costs on a solicitor-client basis under the authority of Hamilton v. Open Window Bakery Ltd., [2004] 1 S.C.R. 303, paragraph 26.
[35] The respondent has explained the reasons for its request in paragraphs 39 and 40 of its memorandum of fact and law, which read:
Ms. McConnell has alleged, in her notice of application, that the Board’s decision was made on the basis of “fraud or perjured evidence”. Her affidavit also states that “the evidence relied upon by PSLRB when it made its decision was based on false information”. She has filed no evidence to support these serious allegations against the Institute. Counsel for the Institute has written on three occasions to address this matter: once to Ms. McConnell personally (before she was represented by counsel), and twice to her counsel. Despite these letters, Ms. McConnell has refused to withdraw these serious allegations.
Allegations of fraud and dishonesty are serious and potentially very damaging to those accused of deception. When, as here, a party makes such allegations unsuccessfully and with access to information sufficient to conclude that the other party was neither dishonest nor fraudulent, costs on a solicitor-and-client scale are appropriate (Hamilton v. Open Window Bakery Ltd., [2004] 1 S.C.R. 303 at paragraph 26.)
[36] The respondent’s concern about the serious and potentially very damaging character of these allegations is understandable. Considering, however, that these allegations never came up for adjudication and in view of the record as a whole, I would decline to grant the request except for the ordinary costs.
CONCLUSION
[37] This application should be dismissed with costs.
"Alice Desjardins"
J.A.
"I agree.
Gilles Létourneau J.A."
"I agree.
C. Michael Ryer J.A."
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-478-05
STYLE OF CAUSE: KATHERINE MCCONNELL v.
PROFESSIONAL INSTITUTE OF THE PUBLIC SERVICE CANADA
PLACE OF HEARING: EDMONTON, ALBERTA
DATE OF HEARING: MARCH 15, 2007
REASONS FOR JUDGMENT BY: DESJARDINS J.A.
CONNCURRED IN BY: LÉTOURNEAU J.A.
RYER J.A.
APPEARANCES:
MR. OBI AGBARAKWE FOR THE APPLICANT
MR. CHRISTOPHER ROOTHAM FOR THE RESPONDENT
OBI AGBARAKWE FOR THE APPLICANT
EDMONTON, ALBERTA
NELLIGAN O'BRIEN PAYNE, LLP FOR THE RESPONDENT