P-2012-3326, P-2012-3327

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Mary-Andrea Bourgeault and Frank Schmohl

Complainants

• and -

The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services)

Employer

BEFORE

Kathleen G. O’Neil

Vice-Chair

FOR THE COMPLAINANTS

Hugh MacDonald

FOR THE EMPLOYER

Caroline Cohen Ministry of Government Services Legal Services Branch Counsel

HEARING

May 9, 2013

Decision

1This decision deals with a preliminary objection raised by the employer in regards to the complaints of Mary-Andrea Bourgeault and Frank Schmohl, both Operational Managers at Central East Correctional Centre (CECC). In their grievances, they complain of the lack of a 2% pay increase at the time they were confirmed as Operational Managers in 2012, in addition to the 3% they had received when they started acting as Operational Managers in 2010. The employer does not agree that the complainants were entitled to any further increase at the time of their confirmation, but says that the Board should not hear the case on its merits in any event, as the complaint was not forwarded to the Board in the time period allowed by regulation. Thus, the employer takes the position that the matter should be dismissed at the outset, and not be allowed to proceed further. The complainants ask that their complaints be allowed to proceed.

Factual Context

2These complaints began in May 2012 when Ms. Bourgeault and Mr. Schmohl, along with three other Operational Managers – Hugh MacDonald, Wayne Routh and Chad Chambo – took formal steps to complain of the fact that they had not received a 2% pay increase upon becoming permanent Operational Managers. They did this by submitting notices of proposals to file a complaint to the Deputy Minister, in the form of five individual letters that were identically worded. The Notices to the Deputy Minister from both Ms. Bourgeault and Mr. Schmohl were dated May 11, 2012.

3Around the same time, in May 2012, all five complainants also filled out complaint forms to this Board, known as Form 1’s. Those of Messrs. MacDonald, Routh and Chambo arrived at the Board shortly thereafter, but those of Ms. Bourgeault and Mr. Schmohl did not. Mr. MacDonald indicated that the complainants all sent their Form 1’s in May because sometimes the employer does not answer grievances. As well, he said he understood that Mr. Schmohl also mailed his Form 1 because he had been having trouble with the workplace fax machine in May.

4Ms. Bourgeault testified that she had received a Form 1 from Mr. MacDonald with wording he had drafted and instructions as to what to do. She said that she filled out the data that made it an individual complaint and faxed it to the Board to the fax number on the bottom of the Form 1, using a fax machine at work. She could not remember the date, but recalled it was in the spring of 2012. She said she was busy that day, so waited for the number to dial, and once she heard the tones indicating it was going through, she left to continue her duties. Later in the evening she was once again in the room with the fax machine, this time to make photocopies, but did not think to look for a confirmation of transmission. The date on Ms. Bourgeault’s Form 1, received by fax by the Board on November 28, 2012, is May 9, 2012.

5Ms. Bourgeault did not call the Board to verify receipt, and acknowledged on cross-examination that there were many possibilities such as having dialled a wrong number so that the fax went through to somewhere else. In any event, there is no documentary confirmation of either sending or receipt of the Form 1 prior to November 28, 2012 in evidence.

6Mr. Schmohl did not attend the hearing or give evidence, and thus there is no first-hand evidence about what he did in terms of sending a Form 1 to the Board. A Form 1 which bears his name and the date May 11, 2012 was received by fax at the Board on November 28, 2012. However, in a statement to the Board bearing both Mr. Schmohl and Ms. Bourgeault’s names, that came in with Mr. Schmohl’s complaint on November 28, 2012, it is said that their Form 1’s had been earlier sent to the Board on May 15, 2012.

7In terms of the process with the employer, rather than with this Board, Ms. Pauline Jones, Labour Management Liaison was named as the Deputy Minister’s delegate to deal with the complaints, all five of which had reached the employer. On June 4, 2012, Ms. Jones sent an e-mail to the five complainants asking for one complainant to represent all five individuals, given the similarity of their complaints. On June 18, 2012 Ms. Bourgeault replied to Ms. Jones by e-mail, indicating that Mr. MacDonald had been authorized to speak for all five Operational Managers. This document was not received by the Board at the time, but was part of the package faxed to the Board on November 28, 2012.

8A meeting between the employer and the complainants to discuss these complaints was held by teleconference on July 19, 2012 with Mr. McDonald representing the five Operational Managers and Ms. Pauline Jones, Labour Management Liaison, as the Deputy Minister’s delegate. Following this meeting, on August 17, 2012, identical letters were sent to each of the five Operational Managers denying their complaints. These letters were addressed to each complainant personally at the workplace.

9Returning to the subject of communications with this Board, Ms. Bourgeault heard that Mr. MacDonald received a letter from the Board in July, while others got theirs in September, which accords with the dates of the notices of proceeding from the PSGB to Messrs. MacDonald, Chambo and Routh. Ms. Bourgeault said she had faith in the system and was still waiting to get her letter. During cross-examination, she resisted the suggestion that she did nothing in response to the news that Mr. Macdonald had received a letter from the Board. She said she was still waiting, and did not know whether they were going to the Board separately or together, as she had not heard the three others were all being scheduled together. Nonetheless, she learned a few days before the November mediation date that Messrs. MacDonald, Chambo and Routh were going to the Board on the same day. Not being familiar with the process, she said she just waited to see what was happening with her own case.

10The complaints from Messrs. MacDonald, Chambo and Routh had been scheduled for mediation before the Board for November 27, 2012 and proceeded on that date. At mediation, those three complainants and the employer reached confidential Minutes of Settlement concerning their complaints, on the basis that they were without prejudice or precedent.

11At the hearing of the preliminary objection to Mr. Schmohl’s and Ms. Bourgeault’s complaints, Mr. Macdonald explained that when he came to the Board on November 27 for his own complaint, he was under the impression that Ms. Bourgeault and Mr. Schmohl were included in “our grievance” because he had heard nothing different from the Board. It was at the mediation that he learned that the complaints of Ms. Bourgeault and Mr. Schmohl had not been scheduled, as no Form 1 had been received from them. Mr. MacDonald said he thought everyone had received an individual letter like the Notice of Proceeding he received in July, scheduling the mediation for November 27, 2012.

Excerpts from Regulations and the Board’s Rules

12Relevant statutory provisions and excerpts from the Board’s Rules are attached as Appendix A for ease of reference.

Considerations and Conclusions

13The issue to be decided is whether the complaints of Ms. Bourgeault and Mr. Schmohl are ones that the Board is permitted to hear under Regulation 378/07. The most relevant provisions of that regulation are set out in Appendix A. The complainants feel unfairly excluded from the process which resulted in settlements with their three colleagues, and argue that their complaints should now go forward.

14To start, it is important to recall that the Board only has the powers and discretion granted by The Public Service of Ontario Act, and regulations made under that legislation. Regulation 378/07, one of those regulations, sets out a very specific scheme, with a set of time lines designed to allow time for the parties, i.e., the employer and the complainants, to resolve their disputes without coming to the Board, if possible, but to move the matter along regardless of whether the parties have been able to meet or resolve the matter internally. There are rules about “windows” of time in which things must be done, and if those rules are not complied with, the Board does not have the power to deal with the complaint.

15The complaint here in dispute concerns a working condition, specifically pay on confirmation as an Operational Manager. Regulation 378/07, s. 4(1) provides that a complainant may file a complaint about a working condition with the Board if the preconditions set out in the regulation are fulfilled. There are detailed conditions about eligibility, giving notice to the employer of a proposal to file a complaint and the filing requirements with the Board, which is separate from the employer.

16No issue has been raised in this matter about eligibility, or the timing of the notice to the employer of proposal to file a complaint. The issue is about the timing of filing with the Board. In respect of giving notice to the employer of a proposal to file complaints in respect of working conditions in a Ministry, such as these complaints, Regulation 378/07, section 8 (4), para. 3, requires that a complainant give notice to the employer, represented by the Deputy Minister, within 14 days of becoming aware of the working condition that gives rise to the complaint. Then, of more significance for this case, section 9(1) of the Regulations provides that a complainant is not entitled to file a complaint with this Board until expiry of the period provided for dispute resolution. This means that a complainant must wait to file with the Board until the employer has had a chance to consider the complaint.

17However, the complainant must not wait too long, i.e. not longer than the period allowed in the regulation. The regulation goes on to give rules as to when the period for dispute resolution ends, which varies according to whether and/or when a meeting is held or the employer’s decision is given. Once the period for dispute resolution has ended, the regulation gives a complainant 14 more days to file the complaint with this Board. In this case, section 9(5) sets out the rules for when the period for dispute resolution ends. There was no meeting with the Deputy Minister’s representative within thirty days of when the notice was given to the deputy minister - May 11 for both Ms. Bourgeault and Mr. Schmohl - so the dispute resolution period ended 30 days after May 11, the date of the notice. By my count, that puts the earliest date the complainants were eligible to file with this Board at June 10, and the latest date 14 days later, or June 24, 2012.

18As noted above, the evidence of Ms. Bourgeault is that she sent a fax to the Board with her Form 1 some time in the spring of 2012, when she received wording from Mr. MacDonald. She then re-sent the Form 1 after she heard about the mediation of her colleagues’ complaints, and realized she had not been included. As noted above, the assertion in accompanying written material is that both Ms. Bourgeault and Mr. Schmohl first sent their Form 1’s to the Board on May 15, 2012.

19Even if one were to accept that the Form 1’s were filed with the Board in May (which is ultimately not the case, as they were not received, as will be explained below), they would have been too early, as they would have been filed before the close of the dispute resolution period, which ended on June 10. As for the Form 1’s sent in November, 2012, they were too late, as they were well beyond the fourteen day period ending June 24, 2012 which followed the close of the dispute resolution period on June 10, 2012. There is no evidence before me that provides the basis for a finding that the complaints were filed within the period after the end of the dispute resolution period, but before the end of the next 14 days. Ms. Bourgeault’s evidence was unclear as to the exact date she recalls putting her documents into the fax machine the first time. Nonetheless, there is sufficient basis in the evidence to indicate that the time period she was describing was in May 2012. Ms. Bourgeault tied the timing of sending the Form 1 to the time when she received the wording from Mr. MacDonald, which he said was in May, prior to when he and Messrs. Chambo and Routh sent their Form 1’s to the Board. Further, Ms. Bourgeault’s Form 1, eventually received by the Board in November, is dated May 9. As well, the statement bearing her name, and sent to the Board at the same time, asserts that the date she had sent it to the Board was May 15, 2012. However, this latter document is of lesser weight because Ms. Bourgeault did not testify about the materials sent in with the Form 1. Nonetheless, it is consistent with the other evidence, and I find it more likely than not that the attempt to fax the Form 1 she described was in May, rather than some time between June 10 and 24, 2012.

20However, even if Ms. Bourgeault had tried to fax the complaint in the right time period in June, it was not received by the Board. It will be noted that what is required by s. 10 (1) of the Regulation is that a complaint be filed with the Board within 14 days after the expiry of the dispute resolution period. “Filing” is a word defined by the Rules of the Board as “effective delivery of documents to the Secretary of the Board”. Effective delivery means that the material gets to the Board. Putting the forms into a fax machine, with no confirmation of successful sending or receipt, does not amount to effective delivery. The Board cannot act on something it does not have. The Board did not give notice to Ms. Bourgeault or Mr. Schmohl of the mediation of their colleagues’ complaints in November, as it had no basis on which to do so, since it had received no indication that they had complained about the same thing as Messrs. MacDonald, Chambo and Routh. If the Board had received the complaints from Ms. Bourgeault and Mr. Schmohl at any time prior to November 27, they could have been scheduled for mediation on the same day as those of their three colleagues.

21Mr. MacDonald testified that, although he had received nothing from the Board indicating that Ms. Bourgeault and Mr. Schmohl would be included in the mediation on November 27, he had formed the impression that they were all together from the fact that the employer had communicated with him under the heading “Chambo et al.” When Mr. MacDonald indicated at the outset of the mediation that there were two other complaints, it was not enough to put the complaints of Ms. Bourgeault and Mr. Schmohl before the Board that day, as the Board had heard nothing from Ms. Bourgeault or Mr. Schmohl at that point. In those circumstances, with no Form 1 from either of them, there was no sufficient basis on which the Board could have concluded that they wished their complaints to be considered at the Board.

22Ms. Bourgeault testified that confusion was created by the fact that the employer wanted to deal with the internal grievance meeting through one representative for the five identical complaints sent to the Deputy Minister. However, the evidence is not supportive of a finding that the reason Ms. Bourgeault did not get her material to the Board in time was the approach of the employer to the grievance meeting held in July. Ms. Bourgeault made it very clear that when she filled in her own information on the Form 1 in the spring, it was for the purpose of making it an individual grievance, and that she intended to send it in individually.

23Further, as found above, it is likely Ms. Bourgeault’s attempt to fax was in May, prior to the employer’s request for consent from the complainants to select one complainant to represent them all at the grievance meeting. That request was made in an e-mail from Ms. Jones, the Deputy Minister’s delegate, on June 4, and responded to by Ms. Bourgeault on June 18, 2012. I accept that there may have been some confusion after that as to whether the five complaints were going to be dealt with together automatically. Nonetheless, I do not have a sufficient basis to find that the employer’s request for one complainant to represent the other four at the meeting to discuss the grievance can explain the complainant’s earlier failure to effectively file a Form 1 with the Board. It was not suggested that Ms. Bourgeault thought that responding to Ms. Jones was the same as filing with the Board, although presumably coincidentally, Ms. Bourgeault responded to Ms. Jones on a date within the appropriate period to file her Form 1 with the Board. In any event, it is clear that Ms. Bourgeault expected her “own letter”, meaning a date for mediation or hearing, from the Board, consistent with an intention on her part to file an individual complaint, which is what she described in her evidence.

24As noted above, Mr. Schmohl did not give evidence, so I do not have any evidence of his sending his complaint to the Board during the appropriate time period in June. Mr. MacDonald asserted that Mr. Schmohl had mailed it in as well as faxing it to the Board, but that he did not know on what date. There was no suggestion that Mr. MacDonald had been present when Mr. Schmohl mailed and/or faxed his complaint, or that he did so between June 10 and 24, 2012. In the circumstances, which include that the Board received nothing from Mr. Schmohl until November 28, this is not evidence on which the Board can rely to find that Mr. Schmohl filed in a timely manner.

25Mr. MacDonald appeared as an advisor or representative, for both Ms. Bourgeault and Mr. Schmohl. In such a role, it is perfectly appropriate to make submissions or legal arguments on behalf of a complainant who does not give evidence, but it does not render him capable of giving evidence as if he were Mr. Schmohl. If a person does not give evidence, and make himself available for cross-examination, facts asserted on that person’s behalf by a representative or advisor are generally only accepted as evidence if the other party agrees to the facts asserted, or a witness with personal knowledge of the facts testifies to them under oath. As there was no suggestion that the employer agreed with the factual assertions of mailing and faxing by Mr. Schmohl, and no witness testified to having witnessed those actions, I have not given them weight as evidence, although Mr. MacDonald asserted them in argument. However, Mr. MacDonald did give evidence of other things which were within his own knowledge, such as having received correspondence from the employer citing the five grievances as “Chambo et.al.” from which he formed the impression that the five matters would be mediated together. Nonetheless, Mr. MacDonald’s impression does not change the fact that neither Ms. Bourgeault nor Mr. Schmohl sent in their Form 1’s during the period permitted by the regulation, and that prior to the mediation on November 27, the Board had received nothing from them about these complaints.

26Ms. Bourgeault’s and Mr. Schmohl’s Form 1’s were, as noted, eventually received by the Board by fax on November 28, 2012, the day after the mediation. However, by that time, the dispute resolution period had been over for several months, and they were well past the time lines provided for in Regulation 378/07, given a Notice to the Deputy Minister in May.

27The above means that the complaints of Ms. Bourgeault and Mr. Schmohl were not filed in accordance with the time lines set out in the Regulation, either in May or November. On their behalf, Mr. MacDonald asks the Board to extend the time limits. Unfortunately for the success of that request, the Board no longer has the power to extend time limits for filing with the Board. Prior to the current regulation, during the period when Regulation 977 was in effect, the Board had the discretionary power under s. 54 of that Regulation, set out in the Appendix to this decision, to extend such time limits, and exercised that discretion in appropriate cases. What was considered appropriate depended on the facts, including whether the delay was not too extensive, there were reasonable grounds for the delay and/or no prejudice to the other party. The situation changed when the current regulation was put in place without the equivalent power.

28The Board has accepted in St. Amant v. Ontario (Ministry of Community Safety and Correctional Services), a decision dated January 31, 2013, now reported at 2013 CanLII 4673 (ON PSGB), citing other decisions to similar effect, that the current wording of the regulation means that compliance with the procedural steps and time limits set out in the regulation is a precondition to the Board’s assuming jurisdiction over a case. Further, the Board found that it has no power to relieve against or extend those time limits, given the removal of that power from the wording of the current regulation. This is consistent with the case of Service Employees International Union, Local 204 v. Leisureworld Nursing Homes Ltd., [1997] O.J. No. 1469, 99 O.A.C. (Divisional Court), affirmed by the Court of Appeal with brief reasons reported at [1997] O.J. No. 4815, 75 A.C.W.S. (3d) 854 (Ont. C. A.). In that case, the Court found it to be unambiguous that when words relating to the power to extend time limits in provisions of collective agreements related to arbitration procedures were dropped from a statute, in that case, the Labour Relations Act, arbitrators lost the right to extend those time limits. In a similar fashion, this Board no longer has the power to extend time limits in either the grievance/complaint or arbitration part of the process, given that the wording granting that power has been removed from the governing regulation.

29Mr. MacDonald also submitted that the matter was still ongoing, and therefore should be considered a continuing grievance, and that the Board should resolve the matter. The concept of a continuing grievance refers to a theme in arbitration case law to the effect that a grievance may be considered timely each time there is a repeated breach. However, what we are dealing with here is not whether the grievances or complaints were timely on May 11, 2012 when filed with the employer, by giving notice to the Deputy Minister. The employer has not objected on that basis. The question is whether they were filed with this Board in a manner and at a time which gives the Board the power to deal with them. For the reasons set out above, I find that they were not, so that the Board is without the power to entertain them.

30Another concept that can be found in arbitration decisions, especially those under collective agreements, which sometimes results in a grievance going forward, despite missed time lines, is waiver of time lines or other procedural rules. Although it is possible for parties to waive procedural requirements in certain circumstances, there is no indication that the employer waived any of its rights to object to the timeliness of these complaints. In accepting the employer’s request to have one representative complainant speak at the meeting with the Deputy Minister’s delegate, it may be that the complainants waived any right to be separately represented at that meeting. However, there is no basis to find that the employer’s actions amounted to a waiver of any kind. Under the Statutory Power Procedures Act, s. 4 (1), procedural requirements may be waived with the consent of the parties and a tribunal such as this Board, but there is no evidence that the parties discussed or agreed that the time lines set out in the regulation be waived. It is clear that the Board was not approached to agree to any such waiver by the parties.

31The above is sufficient to deal with the preliminary objection, but it is appropriate to briefly address two other arguments made by the employer, and one made by the complainants.

32First, the employer argued that the Ms. Bourgeault and Mr. Schmohl should be considered to have abandoned their complaints. It is not necessary to decide that issue, as the Board has found that it simply does not have the power to hear the complaints as they were not filed in the time frame required by the regulation. Nonetheless, I note that there is no evidence that the complainants intended to abandon their complaints. Rather, it appears they were not clear on the procedural requirements set out in Regulation 378/07.

33As well, the employer’s argument included the assertion that the complainants had 14 days to file with the Board after the decision of the employer was given in August, 2012. If the parties had agreed to such a result, and asked for the Board’s consent, pursuant to s. 4 (1) of the Statutory Powers Procedure Act, they might have obtained that result. However, s. 9(5) of Regulation 378/07 provides that, if there is no meeting within the thirty days after notice is given to the Deputy Minister, the period for dispute resolution closes at the end of those thirty days. The fourteen day window within which to file a complaint with the Board commences to run at that time and closes fourteen days later, even if the employer later holds a meeting and responds with a decision on the complaint. The regulation does not provide another fourteen day window, commencing after a meeting held outside of the thirty day period following the complainant’s notice of proposal to make the complaint.

34Lastly, the complainants assert in their written material that it was the employer’s duty to identify any affected parties with regards to a competition complaint as set out in Section 11 (a) and (b) of the Board’s Rules and Practice Notes, which was not done. I accept the submission of counsel for the employer set out in its Form 2 response to the complaints, to the effect that this section of the rules is not called into play for these complaints as the rule only concerns “complaints where third party rights are affected”. A common example of such a case would be a complaint which relates to a job competition, where there is a person in the job who might be displaced if the complainants were successful in their complaints. Such a person would be entitled to notice of the complaint. There was no indication, on the Form 1’s, or during the hearing, that any third party would have been affected if the complainants were successful in these complaints, and therefore no duty arose to notify third parties. The complainants themselves, Ms. Bourgeault and Mr. Schmohl, are not what is meant by third parties or affected parties. They are considered part of the original two parties to each of their individual complaints, i.e. the complainant and the employer.

35To summarize, the Board does not have the power to hear these complaints as they were not filed within 14 days of the close of the dispute resolution period referred to in section 9(5) of Regulation 378/07. The complaints would have been timely beginning thirty days after the May 11 notice to the Deputy Minister was given, and during the 14 days thereafter, i.e. between June 10 and 24, 2012. As they were not received until the following November 28, the complaints were several months late. As the Board no longer has its former power to extend time limits, the complainants’ request to do so is denied.

36For the reasons set out above, the complaints are hereby dismissed.

Dated at Toronto, Ontario this 14th day of November 2013.

APPENDIX A

Excerpts from Regulation 378/07 under The Public Service of Ontario Act:

4. (1) Subject to subsection (2), a public servant who is aggrieved about a working condition or about a term of his or her employment may file a complaint about the working condition or the term of employment with the Public Service Grievance Board,

(a) if the public servant is eligible under sections 5 and 7 to file such a complaint;

(b) if the public servant gives notice in accordance with section 8 of his or her proposal to file the complaint; and

(c) if the public servant complies with the filing requirements set out in section 10.

Filing a Complaint

Notice of proposal to file a complaint

8. (1) A person who proposes to file a complaint shall give notice of the proposal to the following person or entity:

9. A complainant who, at the material time, worked in a ministry shall give the notice to his or her deputy minister.

(3) The notice must set out the reasons for the complaint. O. Reg. 378/07, s. 8 (3).

(4) The notice must be given within the following period:

3. For a complaint about a working condition or a term of employment, within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint. O. Reg. 378/07, s. 8 (4).

Period for dispute resolution

9. (1) A complainant is not entitled to file a complaint with the Public Service Grievance Board until expiry of the period provided under this section for dispute resolution. O. Reg. 378/07, s. 9 (1).

(3) If the complainant was required to give a deputy minister notice of the proposal to make the complaint, and if the deputy minister or his or her delegate meets with the complainant within 30 days after the deputy minister receives the notice, the period provided for dispute resolution expires on the earlier of,

(a) the day that is 30 days after the meeting; or

(b) the day on which the deputy minister gives written notice to the complainant of his or her decision about the proposed complaint. O. Reg. 378/07, s. 9 (3).

(5) If the deputy minister or chair of the Public Service Commission, as the case may be, or his or her delegate does not meet with the complainant within 30 days after receiving the notice, the period provided for dispute resolution expires 30 days after the notice was given to the deputy minister or chair. O. Reg. 378/07, s. 9 (5).

Filing a complaint

10. (1) Within 14 days after the expiry of the period, if any, provided for dispute resolution under section 9, the complainant may file the complaint with the Public Service Grievance Board by delivering it to the chair of the Board. O. Reg. 378/07, s. 10 (1).

(2) The complaint must set out the reasons for the complaint and must include the notice of the proposal, if any, to make the complaint and such other information and documents as the Board may specify. O. Reg. 378/07, s. 10 (2).

Excerpt from expired Regulation 977, under the Public Service Act, no longer in force

54. The Board or a Classification Rating committee may, of its own motion,

(a) abridge the procedure set out in this Part and hear the grievance at any time under section 48: or

(b) extend the time limits specified in this Part, RO 1980, Reg, 881, s. 61.

From the Rules of the Public Service Grievance Board

Definitions

1. In these Rules, …

(f) “Filing” means the effective delivery of documents to the Secretary of the Board:

(g) “ Complaint” means a complaint filed by a complainant;

(h) “Complainant” means a person entitled to file a complaint with the Board under the Public Service of Ontario Act, 2006.

11. In those complaints where third party rights are affected, such as in competition complaints, the onus shall be on the employer to identify the affected parties and provide:

(a) the third party with notice that the complaint has been filed at the Board and the date, place and time of the first day of hearing;

(b) the Board with the name and address of any third party affected by a complaint for the purpose of the Board providing the third party with notice of any proceedings subsequent to the initial hearing.

From the Statutory Powers Procedures Act

Waiver of procedural requirement

4. (1) Any procedural requirement of this Act, or of another Act or a regulation that applies to a proceeding, may be waived with the consent of the parties and the tribunal. 1997, c. 23, s. 13 (1).