Morris v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), 2018 CanLII 55869

Public Service Grievance Board

PSGB# P-2017-0813

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Morris

Complainant

• and -

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

Employer

BEFORE

Marilyn Nairn

Vice-Chair

FOR THE COMPLAINANT

John Hasted

FOR THE EMPLOYER

Daria Vodova Treasury Board Secretariat Legal Services Branch Counsel

D E C I S I O N

1This complaint asserts that the complainant, a Sergeant at Elgin-Middlesex Detention Centre, was subject to excessive and unwarranted discipline imposed by the Ministry of Community Safety and Correctional Services (“CSCS” or the “Employer”). The Employer’s Form 2 response to the complaint includes a preliminary objection to the Board’s jurisdiction to hear the complaint on the basis that the filing of the complaint was untimely under the terms of Regulation 378/07 of the Public Service Act of Ontario, 2006, S.O. 2006, c. 35, Sched. A.

2In its Form 2 response, the Employer asked that the Board make a determination with respect to the timeliness issue prior to the conduct of the mediation scheduled for May 14, 2018. It included the facts and documentary material on which it seeks to rely in that regard.

3On April 18, 2018 the Board directed the complainant’s representative to advise the Board in writing by no later than April 27, 2018 as to the complainant’s position in response to the Employer’s submission that the complaint be dismissed prior to mediation for non-compliance with the timelines.

4No response was received to that direction. However, it appears that on May 2, 2018 the complainant emailed Employer counsel asking that the “meeting” scheduled for May 14, 2018 be rescheduled as his representative was “out of the workplace, due to medical reasons”. The Employer objects to this request to reschedule in light of the complainant’s failure to comply with the Board’s direction. The Employer asks that the complaint be dismissed on the basis of its submissions. In the alternative, the Employer asks the Board to order the complainant to respond in writing as to the reasons why a response has not been provided and why the Board’s deadline of April 27, 2018 was not met.

5In reviewing the materials, I note that the Board’s email of April 18, 2018 was sent to the complainant’s representative but was not copied to the complainant as was requested by this Vice-Chair. This was an oversight on the Board’s part. At the same time, the complainant has indicated that his representative is unavailable for medical reasons. The Board is aware that the representative is a Sergeant who has previously assisted colleagues in matters before the Board.

6In the circumstances, it is not apparent to the Board that the complainant was aware of the Board’s direction of April 18, 2018. However, it is also the case that the Board’s proceedings ought not to be unduly delayed by the inability of a representative to respond on a complainant's behalf. It may be that the complainant will find it necessary to seek other representation if his current representative is unavailable.

7In the circumstances, the Board hereby directs as follows:

1. The mediation scheduled for May 14, 2018 is hereby adjourned.

2. The complainant is hereby directed to respond in full and in writing to the Employer’s position, set out in its Form 2 response, that the Board has no jurisdiction to entertain this complaint and that this complaint ought therefore to be dismissed on the basis that the complainant failed to meet the timelines for filing the complaint.

3. The complainant’s written response is to be filed with the Board with a copy to the Employer by no later than Friday, June 22, 2018. That allows ample opportunity for the complainant to consider and respond to the position taken by the Employer, including obtaining other representation if necessary.

4. This matter will not be re-scheduled pending receipt of the complainant’s written response to the Employer’s timeliness objection. Should the complainant fail to respond by June 22, 2018, the Board will make a determination with respect to the Employer’s timeliness objection based on the material then before the Board.