PSGB# P-2017-3605

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Hamilton

Complainant

• and -

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

Employer

BEFORE

Andrew Tremayne Vice-Chair

FOR THE COMPLAINANT

Joshua Phillips Ursel Phillips Fellows Hopkinson LLP Counsel

FOR THE EMPLOYER

Stewart McMahon Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

October 10, November 14 and 21, 2018

DECISION

1This decision deals with a preliminary objection raised by the employer with respect to the complaint of Patricia Hamilton, a Health Care Manager who retired in early 2018. From October 2016 until her retirement, she had been working at the Vanier Centre for Women in an accommodated placement; her home position was at the Ontario Correctional Institute. Before she retired, Ms Hamilton registered her position with the employer’s Voluntary Exit Registry (VER) for Management/Excluded employees. If an employee who has been declared surplus meets the qualifications for a position that has been registered in the VER, the surplus employee can be assigned to it. The employee who registered the position receives an enhanced severance payment when they retire. Very briefly stated, Ms Hamilton’s complaint is that an employee was assigned to her position but she did not receive the enhanced severance payment.

2The employer takes the position that the Board has no jurisdiction to deal with the complaint because the complaint was not filed with the Board within the time limits required by the regulations. The Board has consistently held that the time limits in Regulation 378/07 are mandatory. If they are not met, the Board is deprived of jurisdiction to hear the complaint. The Board has also consistently held that it does not have the discretion to relieve against these time limits. Counsel for the complainant resists the employer’s motion, saying that the complaint was filed within the time limits, and that in the alternative and in any event, the employer has waived its right to object to the timeliness of the complaint. The employer replies that waiver does not apply in this case.

3The parties’ disagreement about whether the complaint was filed within the time limits required by the regulations is a mixed question of fact and law. The complainant participated in two “meetings” (using that term in the most general sense, for reasons which will be made clear below) on two different dates, and only one of these meetings can be “the meeting” that started the 30-day countdown to the end of the dispute resolution period. The end of the dispute resolution period opens the “window” for the filing of the complaint with the Board, so each meeting potentially created a different “window” period. The complaint was filed during one of the “window” periods but not the other, so the complaint is timely if “the meeting” (that is, the meeting for the purposes of the regulations) took place on the earlier of the two dates. The complaint is not timely if the meeting took place on the later date. As a result, the parties called evidence on what occurred during the two different meetings.

4The parties’ other disagreement, namely whether the doctrine of waiver applies to this case, only matters if the second meeting is found to be “the meeting” for the purposes of the regulations. This is because the employer does not dispute that the complaint was filed within the time limits that follow from the first meeting. However, if the second meeting is found to be “the meeting” then the Board must decide if the doctrine of waiver applies. On this point, the employer concedes that the steps which it has taken to respond to and otherwise deal with the complaint, when taken together, constitute a “fresh step”, and the employer accepts that this would indicate that it had waived its right to object to the timeliness of the filing of the complaint. To summarize, if the second meeting is found to be “the meeting” for the purposes of the regulations, and if the Board decides that the doctrine of waiver applies here, the Board can infer from the employer’s conduct that the employer has waived its right to object to the timeliness of the complaint. As a result, it was not necessary for the parties to call evidence to establish the evidentiary foundation for waiver.

Background and Context

5It is useful to briefly review the Board’s statutory framework in order to place the parties’ disagreement about the timeliness of the complaint in context.

6The Board only has the powers granted by the Public Service of Ontario Act, 2006 (PSOA) and the regulations made under that legislation, such as Regulation 378/07. That regulation sets out a very specific set of time limits or "windows" of time in which steps must be taken to file complaints about discipline or terms and conditions of employment.

7Complaints concerning terms and condition of employment must comply with the preconditions set out in Regulation 378/07, s. 4(1) in order for the Board to have jurisdiction. Ms Hamilton gave notice to the deputy minister that she proposed to file a complaint [s. 8(1)] in a letter dated January 19, 2018, and there is no issue about the timeliness of that notice. It is the timing of the filing of her complaint with the Board which is the source of the parties’ disagreement.

8Once a notice of proposal to file a complaint is made to the deputy minister, the regulation creates a dispute resolution period which must expire before the complainant is entitled to file a complaint with the Board [s. 9(1)]. A complaint will be untimely in the sense of being too early if it is filed before that dispute resolution period has expired, and too late if it is filed more than fourteen days after the dispute resolution has expired. The end of the dispute resolution period is measured in different ways, depending on whether or not there is a meeting between the complainant and the deputy minister (or delegate) within 30 days after receipt of the complainant's notice of proposal to file a complaint.

9If there is no meeting within those 30 days, the dispute resolution period expires 30 days after the notice of proposal is given to the deputy minister [s. 9(5)]. Ms Hamilton gave notice on January 19, 2018, so if there had been no meeting within the 30 days, the end of the dispute resolution period would have been February 18, 2018. However, if there had been a meeting between the complainant and the deputy minister (or delegate) within those same 30 days, the end of the period of dispute resolution is changed to the earlier of the day that is 30 days after the meeting, or the day on which the deputy minister gives written notice to the complainant of their decision about the proposed complaint [section 9(3)]. The deputy minister did not give written notice to Ms Hamilton of their decision about the proposed complaint, so the date of “the meeting” is important.

10In this case, there were two meetings (using the term in its most general sense): one was a phone call which took place on January 23, 2018; the other was a conference call which took place on February 7, 2018. The parties cannot agree on which of these two meetings was “the meeting” for the purposes of s. 9(3). The complainant was the only person who participated in both meetings. The other participants will be identified below when the meetings are discussed in greater detail.

11One of these two meetings started the 30-day countdown to the end of the dispute resolution period, which in turn opened the “window” for the filing of the complaint with the Board. If “the meeting” was on January 23, 2018, then the “window” opened 30 days later on February 22, 2018 and it closed 14 days later on March 8, 2018. If “the meeting” was on February 7, 2018, then the “window” opened 30 days later on March 9, 2018 and it closed 14 days later on March 23, 2018. The complaint was received by the Board on March 6, 2018, so if “the meeting” was on January 23, 2018, then the complaint was filed while the “window” was open, and the complaint is timely. If “the meeting” was on February 7, 2018, then the complaint was filed before the “window” opened, in which case the complaint is not timely.

Which Meeting is “The Meeting” for the Purposes of Regulation 378/07?

Evidence

January 23, 2018 meeting

12Ms Hamilton's notice of intent to file a complaint was received by the deputy minister's office on January 19, 2018. It was forwarded to Bart Nowak, who at all times relevant to this matter was the Acting Director of the Strategic Business Unit at MCSCS. It is not disputed that on January 23, 2018, Ms Hamilton and Mr. Nowak spoke on the phone. It is the complainant’s position that this phone call was “the meeting” for the purposes of the regulations. The employer disagrees.

13Mr. Nowak testified about his role in dealing with notices of intent such as the one filed by Ms Hamilton. He is generally responsible for ensuring that the executives in that Ministry receive timely and accurate advice in connection with complaints brought by non-unionized employees. This includes working with people in the Ministry of Government Services and Management Board to assist the minister's office in dealing with complaints before the PSGB. When he received Ms Hamilton’s notice of intent to file a complaint, he forwarded it to his assistant to prepare a response.

14The purpose of the response, Mr. Nowak testified, is to confirm receipt of the notice of intent and to provide information about next steps. The response is in the form of a template, and the complainant's name and email address is added. The email is sent under Mr. Nowak's name and comes from his email address, although it is actually drafted and sent by his assistant. The text of the response is as follows:

Good afternoon Patricia,

On behalf of deputy Erry, I am acknowledging receipt of your notice of intent to file a complaint (grievance) with the Public Service Grievance Board under the Public Service of Ontario Act, 2006.

Under the dispute resolution provisions outlined in the Act, a person delegated by the deputy minister will contact you within 30 business days to arrange a meeting. You are reminded that you are obligated to follow the provision of the Public Service of Ontario Act (PSOA) to maintain timelines for filing to The Public Service Grievance Board (PSGB).

In the interim, if you wish to discuss this matter further, please feel free to contact me at (416) 212-4133.

Thank you,

Bart Nowak

A/Director, HR Strategic Business Unit Corporate Services Division

15Mr. Nowak says that sometimes he is contacted by a complainant in response to the email that is sent confirming receipt of the complaint. He says that when he is contacted, the complainant usually has logistical questions, such as when is the meeting, who is the person designated by the deputy minister, and whether the complainant can bring a support person or legal counsel. Mr. Nowak does not provide a substantive response to these questions because he does not have access to that information, so he usually replies that the designate will contact them with more information. He usually replies to other questions by telling the person that they should ask the designate.

16Mr. Nowak says that he recalls a telephone conversation with a woman in relation to his January 19, 2018 email, but he could not recall if it was Ms Hamilton. It likely took place in January or February 2018, and he recalls receiving a voice mail message and calling the person back. He was asked questions about next steps, timing, and the person asked what she should do next. He does not recall what he said, but it is likely that he would have replied to these questions in his usual manner, namely by telling the person that the designate will contact them, or words to that effect.

17In cross-examination, Mr. Nowak said that he did not draft the body of the template that was used for the January 19, 2018 email, and that it was already in use when he arrived. It was pointed out that the email reminds complainants to follow the provision of the PSOA to maintain timelines for filing to the PSGB but that the timelines for the filing of complaints are in the regulations, not the Act itself. It was also noted that the email says “a person designated by the deputy minister will contact you within 30 business days to arrange a meeting” but that the regulations say that if there is a meeting, then the meeting itself will happen within 30 days. Mr. Nowak disagreed that these were errors or that these statements misdirected complainants about the process.

18Ms Hamilton says that she called Mr. Nowak at the phone number that was in the January 19, 2018 email. She called him to clarify some information about the PSGB, to ensure that her contact information was up to date because she was days away from retiring, and to discuss next steps. She does not recall specifically what questions she asked or what Mr. Nowak answered, but she understood that she would be receiving a call to set up a meeting to commence a mediation or a conversation.

19Ms Hamilton says that she made some notes of this conversation, but she is not sure if she made the notes before or after the call. In cross-examination, she was pressed about a section of her notes that reads:

Next steps

?anyone avail. To guide me thru process?

?use of dispute resolution meeting when/where?

20She conceded that she asked Mr. Nowak where and when the dispute resolution meeting would be, and that before she spoke to Mr. Nowak she knew from the January 19, 2018 email that that there would be some form of dispute resolution meeting. She agreed that when she was talking to Mr. Nowak, she knew that their conversation was not the dispute resolution meeting.

21Ms Hamilton agreed that she was told by Mr. Nowak that she would be contacted by someone to arrange a meeting. She also agreed that when she later received an email on January 29, 2018 inviting her to a meeting, she understood it to be exactly what Mr. Nowak said it would be.

February 7, 2018 Meeting

22At all relevant times Christine Hayhow was a Labour Management Liaison providing advice and support to regional directors in the institutional services side of MCSCS. She also provides advice and consultation to the deputy minister's office on labour relations matters and acts as a delegate or designate for the deputy minister for the majority of complaints to the PSGB. It is not disputed that on February 7, 2018, Ms Hamilton, Ms Hayhow, and others participated in a conference call. It is the employer’s position that this conference call was “the meeting” for the purposes of the regulations. The complainant disagrees.

23Ms Hayhow described the process whereby she becomes the deputy minster's delegate or designate. After a complaint is received by the deputy minister, it is forwarded to the director of the Strategic Business Unit. The director or his office confirms with the complainant that the complaint has been received and sends it to Employee Relations at Management Board for their review. The manager of the appropriate Employee Relations team contacts the appropriate deputy minister so that a delegate or designate can be assigned, and if she is the delegate or designate, she receives a letter accordingly. In this case, she received a letter dated January 19, 2018 from Brian Scott, a manager with the Employee Relations Advisory Services at Treasury Board Secretariat. The letter states as follows:

Patricia Hamilton has submitted a notice of proposal to file a complaint in accordance with Section 8(1)1 of Ontario Regulation 378/07 of the Public Service Act of Ontario. The Deputy Minister was advised of this on January 19, 2018 as per the attached.

Under Section 9(3) of Ontario Regulation 378/07 you have been designated to respond to this matter. Unless time limits are extended, the meeting should take place by February 19, 2018. Copies of your response are to be forwarded to this office and the Assistant Deputy Minister's Office.

Your cooperation in this matter is appreciated.

24Once Ms Hayhow is so identified, her administrative assistant communicates with the complainant and schedules a call with her and with the Employee Relations advisor who has been assigned to the file. An email is sent by an administrative assistant to the complainant accordingly, and in this case the following email was sent to Ms Hamilton on January 29, 2018:

Ms. Hamilton,

Your January 19, 2018 notice of intent to file a complaint has been forwarded by the office of Deputy Minister Erry to Ms. Christie Hayhow, Labour Management liaison Advisor and Mr. David Marincola, Employee Relations Advisor to schedule a hearing with you.

This hearing, by teleconference, will be scheduled between February 5th and 16th 2018. An electronic invitation will follow with the time and call details.

Upon receipt of the invitation, please confirm your acceptance of the call date and time.

25Ms Hayhow says that the purpose of the teleconference is to gather information about the complaint, to try to work towards a solution, or to investigate the matter further. Although it is referred to as a meeting, or a hearing, these events are almost always held by teleconference. Overall, the point is to determine whether or not there has been a violation of the terms and conditions of employment. As the delegate of the deputy minister, she holds the meeting, reviews the circumstances of the complaint, considers the issues, and makes a decision. Generally she writes a decision but not always.

26Ms Hayhow attended the meeting, along with David Marincola, the Employee Relations Advisor, Ms Hamilton, and Chris Whittaker, who was Ms Hamilton's support person. Ms Hayhow remembers the meeting because she hears most of the complaints in this area, and this was the only one she has heard that dealt with these issues. The meeting also stands out because the complainant was retiring, so there were some scheduling concerns. Ms Hayhow says that she began the call by introducing herself as the deputy minister's designee for hearing complaints and identifying the date of the complaint, which was important because sometimes there are several versions. She identified who was on the phone at her end, asked who else was on the call, then she read the complaint. She explained that the purpose of the call was to gather information and invited Ms Hamilton to tell her about the complaint.

27Ms Hayhow testified that Ms Hamilton described the circumstances of her complaint. Ms Hayhow then asked some questions for clarification. She recalls that Ms Hamilton said that she was going on vacation shortly and then retiring, so she confirmed that her contact information was accurate and up to date. Mr. Whittaker spoke, but Ms Hayhow does not recall what he said. There was a question about the Voluntary Exit Policy, and she recalls Mr. Marincola speaking to that.

28Ms Hayhow says that at the end of the call, she would have said that she has 30 days to respond, and if she did not do so then the 30 day window would close, and the complaint could be forwarded to the PSGB. She does not have an independent recollection of saying these things on this particular call, but this is standard for the many similar calls in which she takes part.

29Ms Hayhow testified that Ms Hamilton did not mention anything about a previous call or a previous meeting. She would have asked questions and investigated further if Ms Hamilton had raised this, because it has never happened and it would be unusual. Ms Hayhow took about one page of notes during the meeting. Near the top, the notes say “explain role as designee” and “read complaint”. Most of the rest of the page recounts Ms Hamilton explaining her complaint or responding to questions.

30Ms Hamilton says that she does not recall Ms Hayhow saying that she had been designated or explaining her role. Ms Hamilton says that the meeting was brief and the she did most of the talking. The only thing she recalls Ms Hayhow saying is that she would look into the policy and get back to her. Ms Hamilton wrote a very brief summary of the meeting on the bottom of a printed copy of the January 29, 2018 email from Ms Hayhow’s office. She wrote the summary a short time after the meeting but does not recall when. Her notes read:

I did have phone conf. Feb 7, 2018 10:30 am

basically me reviewing my [complaint]

asking for policy clarific[ation]

I to date have not rec’d any further info’n

Parties’ Submissions

31The employer submits that the meeting contemplated by s. 9(3) of Regulation 378/07 must be with the deputy minister or his or her delegate. In the context of s. 9, the delegate must be someone who is the delegate for the purposes of attempting to resolve the dispute: the role of the delegate is tied to the dispute resolution process. That is, the delegate must be someone who will gather information about the complaint, inquire into its merits, and then, if the deputy minister chooses to give written notice to the complainant of his or her decision about the proposed complaint, assist or advise the deputy minister in connection with the written notice.

32In his email, Mr. Nowak says that he is acknowledging receipt of Ms Hamilton’s notice of intent to file a complaint on behalf of the deputy minister. Mr. Nowak cannot be the delegate of the deputy minister, because the email says “under the dispute resolution provisions outlined in the Act, a person delegated by the deputy minister will contact you within 30 business days to arrange a meeting”. It is clear from any objective reading of this statement that Mr. Nowak, the author of the email, is not the delegate for the purposes of the dispute resolution process. The distinction is clear. Mr. Nowak is simply acknowledging receipt of the notice. The delegate will meet later with Ms Hamilton “under the dispute resolution provisions”. As a result, any subsequent telephone call or meeting between Ms Hamilton and Mr. Nowak cannot be the meeting contemplated by s. 9(3).

33The evidence about what was said during the two meetings is important, submits the employer. Ms Hamilton’s own evidence is that she and Mr. Nowak did not engage in anything that resembled a dispute resolution process. They did not talk about the substance of her complaint nor how it should be disposed of. It is important that Ms Hamilton admitted that she knew that Mr. Nowak was not the person to whom the deputy minister had delegated responsibility for the dispute resolution meeting. She also agreed that she knew that she would be contacted later by someone else who would be the delegate for that purpose.

34Ms Hamilton’s notes of the first meeting are most likely a combination of notes that she made to herself before the call with Mr. Nowak and notes that she made during or after the call, although her evidence about this was not entirely clear. She conceded that her note “?use of dispute resolution meeting when/where?” shows that the telephone call with Mr. Nowak was not the dispute resolution meeting, and that the dispute resolution meeting would take place later.

35In any event, the employer argues, Ms Hamilton’s subjective understanding or belief of Mr. Nowak’s role in the process is irrelevant. It might have been relevant when the Board had the discretion to extend or abridge the time limits for the filing of a complaint, because that evidence might go to whether the Board should exercise its discretion in a particular case. In the absence of that discretionary power, the only thing that is relevant is whether the meeting with Mr. Nowak was a meeting with the person to whom the deputy minister had delegated responsibility for the dispute resolution meeting, and he was not. That person was Ms Hayhow, who gave extensive evidence about the mechanics by which she was designated by the deputy minister to deal with the complaint. It was clear from her evidence that this was her role, and that the meeting she had with Ms Hamilton on February 7, 2018 was the meeting for the purposes of s. 9(3).

36Counsel for the complainant agrees that Ms Hamilton’s subjective understanding of the meetings is not relevant. The question is whether the objective requirements of s. 9(3) are met by the January 23, 2018 meeting. In fact, argues the complainant, all that s. 9(3) requires is a meeting between the deputy minister or his or her delegate and the complainant – there are no other requirements. There is not even a requirement to have a meeting, but if one is held, no method, format, or purpose for the meeting is prescribed. The meeting is not described anywhere in the regulations as a fact finding, resolution, discovery, step, or grievance meeting. The idea that it must be a “dispute resolution meeting” is not supported by a fair reading of the regulations. The employer has argued that it must be a dispute resolution meeting, but that is a requirement of the employer’s own invention. The meeting does not even have to be a substantive discussion – a discussion about process would fit the bill.

37In any event, the January 23, 2018 meeting better meets the requirements of s. 9(3) than the meeting of February 7, 2018, argues the complainant. Mr. Nowak’s email identifies him as acting on behalf of the deputy minister. It was reasonable for Ms Hamilton to have understood that everything Mr. Nowak said in his email would have been said on behalf of the deputy minister. The email describes the process, albeit in a flawed way, and he does not say that there are any limits on his authority to deal with the matter. This is in contrast to the email from Ms Hayhow’s office, which does not actually say that she has been delegated by the deputy minster to do anything.

38Mr. Nowak did not have a firm recollection of what was discussed in the January 23, 2018 meeting, and although Ms Hamilton’s evidence was vague, she was reasonably clear that they discussed process issues. She said that the reason she called Mr. Nowak was to discuss next steps and how her complaint would be handled, which was important to her because she was going to be leaving the workplace soon. Regardless, the complainant argues, Ms Hamilton’s complaint was the subject of their discussion, and it does not matter for the purposes of s. 9(3) whether the discussion was about process or substance.

39The February 7, 2018 call scarcely dealt with the complaint, the complainant submits. Ms Hamilton says that she described her complaint and that she did most of the talking, and the employer did not share or discuss its position. Both meetings were on the phone, both lasted less than 10 minutes, and both were held within 30 days after the deputy minister received notice of the proposal to file the complaint, as per the regulations.

40The Board has held that multiple meetings do not extend the time limits: it is the first meeting that counts, because the regulations do not contemplate more than one meeting. As a result, the January 23, 2018 meeting is the first meeting that meets the criteria of s. 9(3), so it ought to be treated as the relevant meeting, submits the complainant.

41The Board should adopt the perspective of a reasonable person, acting as a complainant, when it looks at the time limits and at Regulation 378/07 generally, the complainant argues. The employer is in complete control of the process: it decides whether there is going to be a meeting, it contacts the complainant, it may or may not give a written decision, and it decides what will be done and when. The employer should be required to demonstrate that it has acted in a fair and transparent manner, and in such a way as to allow a reasonable person in Ms Hamilton’s position to comply with the procedural requirements. The complainant submits that the employer has not met the standard.

42Finally, Mr. Nowak’s January 19, 2018 email contains several inaccuracies and misstatements: it says that a person designated by the deputy minister will contact you within 30 days, but it is the meeting that must take place within 30 days, not the initial contact; it refers to following timelines in the PSOA for filing a complaint with the PSGB, but the timelines are in the regulations, not the PSOA. More importantly, nobody ever said to Ms Hamilton “this is the meeting that triggers the mandatory time limits” or told her that there was a 14 day window for filing a complaint. The employer’s representatives withheld this key information, and the employer should not be permitted to take advantage of its lack of clarity.

Analysis and Findings

43I will briefly address the last two points, which can be summarized as follows: the complaint process under the PSOA and Regulation 378/07 is complicated and difficult; and the employer’s communications with Ms Hamilton made things worse. Without disputing their accuracy, these observations might have been relevant when the Board had the discretion to extend or abridge the time limits for the filing of a complaint. The Board addressed similar arguments in Bourgeault v. Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 84294 (ON PSGB) and Telford v. Ontario (Finance), 2016 CanLII 36364 (ON PSGB), finding in both cases that the reasons for not meeting the time limits, however sympathetic or compelling, do not assist the Board when it lacks the power to relieve against them. I see no reason to depart from those decisions.

44In this case, the employer’s delay in raising its objection is nevertheless a concern. On the first page of Ms Hamilton’s complaint (Form 1) she replied “Yes” to the question: “Was there a meeting held in accordance with Section 9 of Regulation 378/09 of the Act?” and wrote “Jan 23/2018 - telephone” on the form. She clearly identified the first meeting as “the meeting” for the purposes of Regulation 378/07. The employer filed its response, participated in a mediation, and agreed to a number of hearing dates before it raised the preliminary objection that the complaint was not filed with the Board within the time limits required by the regulations. In my view, it was incumbent on the employer to raise this objection sooner than it did.

45Before the Board holds a formal hearing, it provides the parties with an opportunity to mediate their differences and settle complaints. The mediation process is designed to assist the parties in reaching a settlement without the expense and delay arising from more formal proceedings. Parties often participate in mediation while reserving the right to raise preliminary objections if the complaint is not settled. In this case, it took three days of hearing to fully address all aspects of the parties’ positions on the employer’s preliminary objection. It is generally helpful in mediation for both parties to have as complete a picture as possible of what will happen next if a dispute is not resolved. Here, a more complete picture of the employer’s position may have assisted the parties in their settlement discussions.

46The first issue to be addressed is which meeting, as between the meeting that took place on January 23, 2018 and one took place on February 7, 2018, was “the meeting” for the purposes of s. 9(3). To begin with, the heading above Section 9 of Regulation 378/07 is “Period for dispute resolution”. The term “dispute resolution” appears in ss. 9(1), 9(3), 9(4), and 9(5). I accept that the meeting in s. 9(3) is not specifically called a “dispute resolution meeting”, but in my view, it is reasonable to conclude from the context in which this meeting is found within Regulation 378/07 that its purpose is dispute resolution. No method, format, or purpose for the meeting is prescribed, but none is required: there are many ways of resolving, or attempting to resolve, workplace disputes. Dispute resolution meetings can take many different forms.

47Having heard and carefully considered the parties’ evidence and submissions, it is very difficult to see how the telephone call between Ms Hamilton and Mr. Nowak had any purpose connected to dispute resolution. Ms Hamilton’s evidence, which is supported by her notes, strongly suggests that she called Mr. Nowak to ask where and when the dispute resolution meeting would be. According to her notes, she may have also asked whether anyone was available to guide her through the steps and the use, or purpose, of the dispute resolution meeting. This call consisted of Ms Hamilton asking a few very limited questions about scheduling and process. There is no evidence that they even discussed what her complaint was about.

48Ms Hamilton and Ms Hayhow offered different recollections of the February 7, 2018 meeting. Ms Hayhow says that she began the call by introducing herself as the deputy minister's designee for hearing complaints and identifying the date of the complaint. She identified who was on the phone at her end, asked who else was on the call, and read the complaint. She explained that the purpose of the call was to gather information and invited Ms Hamilton to tell her about the complaint which she did. Ms Hayhow asked some questions for clarification. There was a question about the Voluntary Exit Policy, and Mr. Marincola replied to that.

49Ms Hayhow says that at the end of the call, she would have said that Ms Hamilton has 30 days to respond, and that if she did not respond the 30 day window would close, and the complaint could be forwarded to the PSGB. She does not have an independent recollection of saying these things on this particular call, but this is a standard part of what she routinely says in similar calls.

50Ms Hamilton says that she does not recall Ms Hayhow saying that she had been designated or explaining her role. The meeting was brief and Ms Hamilton did most of the talking. The only thing she recalls Ms Hayhow saying is that she would look into the policy and get back to her.

51Ms Hayhow says that she remembers the meeting because the issues raised in Ms Hamilton’s complaint were, in her experience, unique. The meeting also stands out in her memory because Ms Hamilton was retiring, so there were some scheduling concerns. Ms Hayhow’s independent recollection of the meeting aligned with her notes, which show that the parties discussed the complaint on its merits. Ms Hamilton does not recall Ms Hayhow saying that she had been designated or explaining her role, and she does not recall Ms Hayhow reading her complaint. Both of these points are mentioned briefly at the start of Ms Hayhow’s notes, and it was Ms Hayhow’s evidence that it was her practice to begin meetings like this one with these statements. Ms Hayhow’s recollection of the meeting aligns more closely with the only notes taken during the meeting, namely her own.

52Ms Hamilton concedes that she did not write her brief summary of the meeting until later. She begins with the words “I did have phone conf”. This strongly suggests that she wrote these words after the dispute arose between the parties about the timeliness of the filing of the complaint, because this is an unlikely choice of words if someone is simply summarizing a meeting. The final words “I to date have not rec’d any further info’n” strongly suggest that a fair amount of time had already passed after the meeting, because it is unlikely that a person would expect to receive any such information right away. In any event, the notes say “basically me reviewing my [complaint] asking for policy clarific[ation],” which would likely have been part of a dispute resolution meeting.

53Having considered the evidence of both witnesses, who have differing but not directly contradictory recollections of the February 7, 2018 meeting, I find on a balance of probabilities that the purpose of this meeting was dispute resolution.

54Who attends the meeting is also important. According to s. 9(3), if the complainant and the deputy minister or his or her delegate attend the meeting, the 30 day countdown starts to the end of the dispute resolution period. Returning to Mr. Nowak’s January 19, 2018 email, it is fair to say that it did three things: it acknowledged receipt of Ms Hamilton’s notice of intent to file a complaint; it told her that “a person delegated by the deputy minister will contact you within 30 business days to arrange a meeting”; and it said “in the interim, if you wish to discuss this matter further, please feel free to contact me.”

55Several conclusions follow from the plain meaning of these statements. Someone other than Mr. Nowak will be contacting Ms Hamilton to arrange a meeting, and that person will be a person delegated by the deputy minister. That person is not Mr. Nowak, because if it was, he would have said “I will contact you within 30 business days . . .” Instead, he refers to “a person” which cannot, on any reasonable construction of the language used, be the author of the email, namely Mr. Nowak. Next, the invitation to contact Mr. Nowak is not an invitation to the meeting, because the meeting will be arranged later. The email says “in the interim” which shows that calling Mr. Nowak would be something different, and something that could happen, if Ms Hamilton chose to do so, before she is contacted to arrange the meeting. It is also an invitation to contact “me” namely Mr. Nowak, and as stated above, a reasonable construction of the language is that Mr. Nowak is not the person who will be contacting Ms Hamilton to arrange the meeting.

56These conclusions are strongly supported by Ms Hamilton’s evidence: she knew that Mr. Nowak was not the person to whom the deputy minister had delegated responsibility for the dispute resolution meeting, and she knew that she would be contacted later by someone else who would be the delegate for that purpose. The January 29, 2018 email from Ms Hayhow’s office completes the picture. It tells Ms Hamilton that her notice of intent to file a complaint has been forwarded by the deputy minister’s office to Ms Hayhow and Mr. Marincola “to schedule a hearing with you” and the date that is eventually set for this is February 7, 2018.

57As a result, for all of the reasons set out above, the meeting that took place on February 7, 2018, was “the meeting” for the purposes of s. 9(3) of Regulation 378/07. The “window” opened 30 days later on March 9, 2018 and it closed 14 days after that on March 23, 2018. The complaint was received by the Board on March 6, 2018, so it was filed before the “window” opened and is therefore not timely.

Waiver

58Having found that the second meeting is “the meeting” for the purposes of the regulations, the Board must decide if the doctrine of waiver applies. As stated above, the employer concedes that the steps which it has taken to respond to and otherwise deal with the complaint, when taken together, would indicate that it had waived its right to object to the timeliness of the filing of the complaint. As a result, although the parties disagree about whether the doctrine of waiver applies here, it was not necessary for the parties to call evidence to establish the evidentiary foundation for waiver.

The Parties’ Submissions

59There are some true jurisdictional issues where waiver does not apply, argues the complainant, but mandatory time limits have not been treated as one of those issues. Rather, mandatory time limits are a matter of form or procedure, and the right to object to the timeliness of a grievance or complaint can be waived. The complainant cites Seneca College of Applied Arts and Technology v. Ontario Public Service Employees Union (Balevi Grievance), 2012 OLAA No. 487, 2012 CanLII 53497 (ONLA) (Bendel); and Ontario Public Service Employees Union v. Ontario (Ministry of Children and Youth Services) (Moody). [2012] O.G.S.B.A. No. 94, 2012 CanLII 35048 (ON GSB) (Abramsky) in support of its position.

60The Board has considered whether the mandatory time limits in Regulation 378/07 have been waived. The Board also entertained a waiver analysis and recognized that waiver can be applied in Bourgeault; Telford; and Doyle v. Ontario (Ministry of Municipal Affairs), CanLII 52705 (ON PSGB). Moreover, in both Bourgeault and Doyle, the Board confirmed that under s. 4 of the Statutory Powers and Procedures Act (SPPA), the Board is able to waive time limits. This section of the SPPA reads as follows:

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).

The Board has treated time limits as a procedural matter and has never viewed the mandatory time limits in Regulation 378/07 as being a fundamental jurisdictional issue that would preclude it from considering waiver, argues the complainant.

61The employer replies that the Board has repeatedly stated that time limits go to its jurisdiction to hear a complaint. In a line of decisions starting with St. Amant v. Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4673 (ON PSGB); the Board has addressed different factual scenarios that have arisen: Hauth v. Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 74165 (ON PSGB); Hasted/Berezowsky v. Ontario (Ministry of Community Safety and Correctional Services), 2016 CanLII 7473 (ON PSGB); Burkholder v. Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 84293 (ON PSGB); Telford; and Doyle. All of these decisions say that compliance with the time limits is a true precondition to the Board having jurisdiction over a complaint.

62The employer submits that waiver cannot apply to complaints before this Board. The Board is a tribunal of limited jurisdiction, and the parties cannot give such a tribunal more jurisdiction. No number of fresh steps can grant the Board jurisdiction that it does not have. The applicability of waiver in the context of administrative tribunals has been set out in authorities such as Robert W. Macaulay, James L.H. Sprague, and Lorne Sossin, Practice and Procedure Before Administrative Tribunals, (Toronto: Thomson Reuters Canada Ltd. 2004) and Blake, Sara, Administrative Law in Canada, 4th ed., Blake (Toronto: LexisNexis Canada, 2006) and can be summarized as follows:

However, one cannot bestow jurisdiction upon a statutory decision maker by waiver or consent.

Parliament intends its statutory agencies to have only the authority that Parliament grants them. That type of jurisdiction cannot be granted by waiver or consent.

Practice and Procedure Before Administrative Tribunals, s. 12.22 (a)

If a tribunal decides that it does not have the power to do what is requested of it, the parties cannot by consent confer the power upon it. Lack of power may not be waived, nor may parties by their acquiescence confer on a tribunal a power that it does not have. Powers cannot be expanded by contract between the tribunal and the parties it regulates.

Administrative Law in Canada, 4th ed., p. 119

63In Hunter Rose Co. v Graphic Arts International Union, Local 28B (1979), 24 OR (2d) 608 (C.A.), 1979 CanLII 2028 (ON CA) the Ontario Court of Appeal confirmed that labour arbitration boards are an exception, but the Court was clear that this is because the jurisdiction of a board of arbitration is founded on the agreement of the parties. For the same reason, argues the employer, the arbitration awards cited by the complainant which stand for the proposition that the failure to comply with time limits is a procedural irregularity arise out of proceedings that were conducted under the terms of a collective agreement, so they are of no assistance to the Board.

64The SPPA contemplates a process whereby the parties can agree and ask for the Board’s consent to waive a procedural requirement. Without conceding that the mandatory time limits in Regulation 387/07 meet the definition of a procedural requirement, it is clear that the parties would need to be pro-active and ask for the Board’s consent, and if they do not, then the “window” closes, submits the employer. The question of waiver was not squarely before the Board in Bourgealt, Doyle, and Telford; there is no sense that the parties in those cases fully argued the issues that time limits go to the heart of the Board’s jurisdiction or that parties cannot grant jurisdiction to a Board of limited jurisdiction.

Analysis and Findings

65Beginning with St. Amant, the Board’s decisions have been clear that complaints not filed in accordance with Regulation 378/07 are not within the Board’s jurisdiction. While the Board is not necessarily obliged to follow prior decisions, it is generally accepted that where the issue is similar, an earlier decision should be followed for the sake of consistency and predictability. Consistency is particularly important when it comes to an issue that arises not infrequently between the parties who come before the Board, such as whether an untimely complaint is within the Board’s jurisdiction. The Board is also required to be correct with respect to questions about its own jurisdiction.

66The Board has dealt with many different factual scenarios when it has considered this issue, but among the more compelling are the facts in Telford. In that case, Mr. Telford’s complaint was filed outside the time limits of Regulation 378/07 because of the death of his lawyer. Acknowledging that the Board’s interpretation of this regulation can work hardship in particular cases, the Board declined to depart from its established jurisprudence. The Board made the following comment:

37Further, consistency, short of rigidity, in tribunal decision making is highly desirable, as affirmed by the Supreme Court of Canada, in IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 SCR 282, 1990 Can LII 132 (SCC). This Board's interpretation of the time limits in Regulation 378/07 has been articulated in a consistent way whenever issues have been raised about them, and it is for the regulatory process to change course if so advised.

67The Board’s case law has accurately interpreted and applied Regulation 378/07, and for this reason alone, it is not appropriate to depart from those carefully reasoned decisions. The Board has been clear: complaints that are not filed in accordance with Regulation 378/07 are not within the Board’s jurisdiction.

68Similarly, the applicability of the doctrine of waiver in an administrative law context is well settled: only a “procedural” right, as opposed to a “substantive” right is capable of being waived. The distinction between “procedural” and “substantive” rights or provisions may, as in this case, become critical. In this regard, guidance can be found in Palmer and Snyder, Collective Agreement Arbitration in Canada, an authority which was cited in many of the authorities relied upon by the complainant. The following excerpts show that the applicability of waiver in a labour arbitration context can be readily distinguished from its applicability before statutory tribunals of limited jurisdiction, such as the Board:

Waiver has been defined as "a legal barrier to the exercise of rights in a particular case, erected by the conduct or words of the parties". In this context, waiver has the effect of preventing a party from insisting on strict compliance by the other party with procedural requirements in the grievance process. [emphasis added]

Section 3.75

Waiver arises therefore where it can be concluded that one of the parties has given up its right to invoke the procedural provisions of the collective agreement. [emphasis added]

Section 3.76

Certain defects cannot be waived and objections concerning these can be made at any time. The reason is that jurisdiction cannot be conferred on an arbitrator through a party's failure to object promptly. The cases have thus distinguished between fundamental issues of jurisdiction to which waiver never applies, and irregularities of form or procedure to which the doctrine is applicable. Failure to comply with mandatory time limits in the collective agreement; filing of a grievance as a policy rather than an individual grievance; defects in the grievance form itself; and failure to proceed through all the specified steps of the grievance procedure have been held to be procedural irregularities which can be waived. [emphasis added]

Section 3.77

69These excerpts refer to “procedural requirements in the grievance process,” the “procedural provisions of the collective agreement”, and “mandatory time limits in the collective agreement.” Arbitrators derive their jurisdiction from the collective agreement under which they are appointed. The parties who appear before the Board have not negotiated a collective agreement and they have not agreed on a grievance process. The PSOA and its regulations are not a collective agreement. The complaints that are properly within the Board’s jurisdiction exist only because they are authorized by the PSOA and its regulations.

70The Board only has the powers granted by the Public Service of Ontario Act, 2006 (PSOA) and the regulations made under that legislation, such as Regulation 378/07. Having consistently held that complaints not filed in accordance with that regulation are not within the Board’s jurisdiction, the logical conclusion for the Board to reach is that the time limits in the Regulation 370/07 are substantive, not procedural, within the meaning of those terms as they have been used and understood in the jurisprudence and the relevant authorities discussed above.

71The remaining issue to be considered is the applicability of s. 4.1 of the SPPA. The Board has mentioned s. 4.1 in Bourgeault and in Doyle. In Bourgeault, the Board found that the complaints were not filed with the Board in a manner and at a time which gave the Board the power to deal with them. The Board said the following with respect to waiver and the SPPA:

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. . . .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.

72In Doyle, the employer raised several preliminary objections to the complaints. Among the objections was that one of the complaints was not referred to the Board within the 14 day time period allowed by the regulations after the close of the dispute resolution period. The complainant argued that meetings which took place after the end of the dispute resolution period extended the regulatory time lines. The Board rejected this argument, and made the following comment about waiver:

29The fact that parties to complaints before this Board often continue to attempt to resolve issues after the end of the dispute resolution period defined in the regulation does not alter the operation of the regulatory time lines. Although it would have been open to the parties to agree to extend the dispute resolution period with the consent of the Board, as provided in section 4 (1) of the Statutory Power Procedures Act there is no evidence of such an agreement between the parties.

73First, the Board did not turn its mind to whether the time limits in the Regulation 370/07 are substantive or procedural in these decisions. That issue does not appear to have been identified and argued by the parties, because the Board’s comments are directed towards whether the parties had discussed or agreed to waive the time limits, and if so, whether the Board’s consent had been sought. Second, it is clear from a careful reading of both Bourgeault and Doyle that the Board in those cases did not have the benefit of the thorough and detailed submissions of counsel on the applicability of the doctrine of waiver that were presented to the Board in this case. Third, and in light of the first two considerations, two decisions do not necessarily establish a level of consistency and predictability that the Board should follow.

74Section 4 of the SPPA is about the ability to waive procedural requirements. Having found that the time limits in the Regulation 378/07 are substantive, not procedural, s. 4 does not apply in this case. The time limits cannot be waived, because they are not procedural requirements. As a result, the employer did not waive its right to object to the timeliness of the complaint. It did not waive its right to do so because it cannot waive its right to do so.

75In any event, and to the extent that Bourgeault and Doyle can be applied in this case, the same observation with respect one of the basic criteria of this section of the SPPA can be made here: the Board was not approached to agree to any such waiver by the parties. For this reason alone, the requirements of s. 4 of the SPPA have not been met on the facts of this case.

Disposition

76To summarize, having carefully considered the evidence and the submissions of the parties, the dispute resolution meeting took place on February 7, 2018. This was the meeting for the purposes of s. 9(3) of Regulation 378/07. The “window” opened 30 days later on March 9, 2018 and it closed 14 days after that on March 23, 2018. The complaint was received by the Board on March 6, 2018, so it was filed before the “window” opened and is therefore not timely. The complaint is dismissed and will not proceed to a hearing on the merits.