PSGB# P-2018-0007

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Roussel

Complainant

• and -

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

Employer

BEFORE

Marilyn A. Nairn

Vice-Chair

FOR THE COMPLAINANT

Andrea Roussel Howard Stephenson Iona Seales Sean Black

FOR THE EMPLOYER

Suneel Bahal Treasury Board Secretariat Legal Services Branch Senior Counsel

INTERIM DECISION

1The Form 1 to this complaint named four individuals as complainants. The matter has been set down for mediation on November 2, 2018. This interim decision deals with an issue related to the correct procedure for giving notice of proposal to file a group complaint.

2By letter dated September 27, 2018 the Employer notified the named individuals and the Board of its position that certain of the named individuals on the Form 1 had not filed a “notice of intent”. The Employer further advised that it was taking the position that those individuals were not proper parties (complainants) to this complaint. It asked that the Board deal with that issue prior to the scheduled mediation date.

3On October 1, 2018 the Board wrote to each of the named individuals and the Employer by email. That email set out in detail the Employer’s position and referred the named individuals to the provisions of Ontario Regulation 378/07 (the “Regulation”) made under the Public Service of Ontario Act, 2006 as amended, and, in particular, section 8 of that Regulation.

4The Board directed each of Sergeants Howard Stephenson, Iona Seales, and Sean Black to advise the Board whether they had filed a notice of proposal to file a complaint under section 8 of the Regulation in respect of the matters raised by Board File #2018-0007, and to advise the Board on what basis, if any, they sought standing as a complainant in that complaint. A response was directed by no later than October 10, 2018 and the Board advised that, upon receipt of that material or in the absence of a response, it would consider appropriate next steps, including whether to remove those individuals as complainants from the complaint.

5On October 9, 2018 the Board received a Form 1 complaint from each of Sergeants Stephenson, Seales, and Black. To the extent that any of those complaint forms included a notice of proposal, it appears to be the same as that contained in Board File #2018-0007. That document is dated February 15, 2018 and is a letter to Deputy Minister Erry signed by Andrea Roussel, the remaining named individual on the Form 1 filed as Board File #2018-0007.

6In order to seek to ensure that the Board’s earlier direction had been understood, on October 12, 2018 the Board sent a further email to each of Sergeants Stephenson, Seales, and Black, which was copied to the Employer. The Board noted that a Form 1 did not constitute a notice of proposal to file a complaint under section 8 of the Regulation. Each of these individuals was again directed to advise the Board as to whether they had filed a notice of proposal to file a complaint under section 8 of the Regulation in respect of the matters raised by Board File #2018-0007 and to indicate on what basis they sought standing in Board File #2018-0007.

7That second direction indicated that a response was due by no later than October 17, 2018. There has been no response to that subsequent direction.

8Section 8 of Regulation 378/07 provides:

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:

1. For a complaint about dismissal for cause, within 14 days after the complainant receives notice of the dismissal.

2. For a complaint about a disciplinary measure, within 14 days after the complainant receives notice of the imposition of the disciplinary measure.

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).

9As it pertains to a Sergeant working for the Ministry of Community Safety and Correctional Services, prior to filing a complaint with this Board, section 8 of Regulation 378/07 requires a complainant to file a notice of proposal to file a complaint with his or her Deputy Minister. Apart from time limits in that regard, the purpose of the notice of proposal is to trigger a dispute resolution period, during which time the Employer is given an opportunity to respond to the matters intended to be raised in a subsequent complaint. Thus, the Regulation also stipulates that the notice of proposal is to set out the reasons for the complaint.

10The Board has previously held that the filing of a notice of proposal to the Deputy Minister is an essential pre-condition for it to take jurisdiction over a complaint. In Jackson v. Ontario (Ministry of Community Safety and Correctional Services) 2011 CanLII 36564 (ON PSGB) the Board stated:

32The material before me gives no basis on which I could find that notice of proposal to file a complaint was ever given to the Deputy Minister, as required by s. 8…

38Furthermore, there was no suggestion that the Board can simply ignore the fact that the preconditions in sections 8 and 9 were bypassed, or that there is power in the Board to treat the matter as if those preconditions had been met. Nor am I aware of any authority to that effect. In the result, it would appear that the complainant was not eligible to file the grievance under s. 9 because none of the pre-conditions as to notice and allowance of opportunity for the dispute resolution process occurred. If the complainant was not eligible to file the grievance, there is no grievance properly before the Board, and it must be dismissed.

11That result was confirmed in Muldoon v. Ontario (Ministry of Community Safety and Correctional Services) 2011 CanLII 83724 (ON PSGB) in circumstances where the complainant had failed to give the required notice in respect of several complaints. The Board stated:

2At the outset of the hearing, the employer presented full argument to support its preliminary objection to the PSGB’s jurisdiction over these complaints. The employer’s position, simply put, was that section 8 of Regulation 378/07 made notice to a complainant’s Deputy Minister a mandatory requirement that constituted an essential condition of the PSGB’s jurisdiction over that complaint.

6The Board now turns to the employer’s preliminary objection. In an earlier decision, the Board dealt with the legal implications of the requirement to give notice of a complaint to the Deputy Minister. In Jackson v. Ontario (Ministry of Community Safety and Correctional Services) [2011] O.P.S.G.B.A. No. 8 the Board made it clear that notice to the Deputy Minister was an essential precondition for it to take jurisdiction over a complaint.

7…Given that the required notice was not given by the complainant in respect of any of these complaints, the legal consequences are that the complainant was not eligible to file these complaints with the Board so that these complaints are not properly before the Board.

12And see paragraph [8] of the Board’s decision in Burkholder v. Ontario (Government Services), 2013 CanLII 84293 (ON PSGB).

13As noted, the Form 1 that has been filed with respect to Board File #2018-0007 contains a letter directed to Deputy Minister Erry dated February 15, 2018. The letter is signed by Sergeant Roussel. The letter opens by Sergeant Roussel introducing herself to the Deputy Minister and moving on to discuss her various concerns, including an issue of her accommodation under the Ontario Human Rights Code. The letter is written entirely in first person and at no time does it make mention of Sergeants Stephenson, Seales, or Black. There is nothing in the letter from which the Deputy Minister could or would be advised that those individuals were seeking to put the Employer on notice that any or all of them had any employment concerns that they were seeking to raise with the Employer, or that any or all of them intended to file a complaint before this Board.

14In order to provide a valid notice of proposal to file a complaint for purposes of a group complaint before the Board, that notice of proposal must set out the reasons for the complaint relevant to each individually identified member of that group and it must be signed by each member of the group. This will make it clear to the Employer (and to the Board) that there is more than one complainant and it will also identify the nature of their respective concerns. The letter filed does not, in any way, provide this necessary information. (The provision of that notice of proposal must also conform to the time limits set out in the Regulation.)

15Nor is there evidence of any other communication provided by any of Sergeants Stephenson, Seales, or Black that might be found to constitute notice of proposal to file a complaint in accordance with section 8 of the Regulation with respect to this matter.

16Absent having provided a notice of proposal to file a complaint with respect to the matters raised in the complaint filed as Board File #2018-0007, Sergeants Stephenson, Seales, or Black are not proper parties to the complaint filed by Sergeant Roussel that is proceeding by way of Board File #2018-0007.

17The Board therefore finds that the Form 1 filed as File #2018-0007 properly names only Sergeant Roussel as complainant. Sergeants Stephenson, Seales, and Black are hereby removed as named parties to that complaint.