PSGB# P-2018-0618

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Taylor

Complainant

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Brendan Morgan

Vice Chair

FOR THE COMPLAINANT

Vicki Taylor

FOR THE EMPLOYER

Jonathan Rabinovitch and Sean White Treasury Board Secretariat Legal Services Branch Co-Counsel

HEARING SUBMISSIONS

December 14, 2018 (by teleconference) January 16, 2019; January 23, 2019

Decision

BACKGROUND

1At the time of the filing of this complaint the Complainant, Ms. Vicki Taylor, was employed by the Ministry of Community and Correctional Services (“CSCS” or the ‘Employer’). In April of 2019 the responsibilities for corrections were assigned to the Ministry of the Solicitor General (“SOLGEN” or the “Employer”).

2The Complainant has, at all relevant times, been employed at the Employer’s Central East Correctional Centre (“CECC”) in Lindsay, Ontario.

3This complaint represents one of three “Form-1 Applications” that the Complainant filed with the Board in a three month period commencing in February 2018 with respect to her employment at the CECC. This complaint is the third of these to be heard by the Board. The Board assigned file number P-2018-0618 to this complaint.

4It is important to note that the subject matter of these complaints reference different periods in the employment history of the Complainant. It has, however, become apparent that there is some factual overlap between the second and third complaint. These facts are addressed below.

5The first complaint, Board file number P-2017-3388 alleged that the Employer had refused to assist her with her claim for long-term disability. This complaint was filed with the Board on February 5, 2018, and on September 27, 2018 the Board issued a decision dismissing the complaint.

6A second and third Form-1 Application were filed by the Complainant with the Board on May 14, 2018. The first of these was assigned Board file number P-2018-0617. The complaint alleged that the Complainant had been the subject matter of “bullying” and “harassment” at the CECC and that the Employer had, in response, failed to accommodate her. The Complainant further alleged that the Employer had failed to respond to her physician’s notes and written advice that suggested that she only return to work once assurances were provided by the Employer that the Complainant would not be required to work with or near those that had allegedly engaged in the “bullying” or “harassment”. This complaint encompassed the period from October 2016 until February 2018. In a decision dated October 4, 2019, the Board dismissed the Complainant’s complaint.

7As discussed above a second complaint was filed by the Complainant with the Board on May 14, 2018. The Board assigned File number P-2018-0618 to this matter.

8The Board had originally scheduled a mediation session for May 22, 2018, for the Complainant’s initial complaint, Board file P-2017-3388. As mentioned in paragraph 5, above, the Board received the second and third complaints on May 14, 2018, nine days prior to the scheduled mediation. At the request of the Board and with the agreement of the Complainant the Employer agreed to mediate all three complaints on May 22, 2018, subject to being able to file their Form-2 Responses with respect to the May 14, 2018 complaint at a later date.

9Unfortunately, the parties were unable to resolve any of the complaints at the May 22, 2018 mediation session.

10The Board, on July 25, 2018, issued a decision addressing various procedural issues involving the complaints. With respect to the current complaint before the Board the Employer was directed to file its Form-2 Response to the Board and the Complainant. This was to include the Employer’s response to the substantive allegations raised in the complaint along with any preliminary objections that the Employer might wish to raise in future proceedings.

11In accordance with the Board’s directive the Employer filed its Form-2 Response with the Board on August 17, 2018. Counsel’s response addressed the substantive issues raised in complaints P-2018-0617 and P-2018-0618 filed with the Board on May 14, 2018 along with its preliminary objections. The two preliminary objections in the matter challenged the Board’s jurisdiction to entertain the complaint on the basis that it was untimely. It should be noted that the two preliminary objections identified by Counsel with respect to Board file P-2018-0617 were substantially the same as those raised in the current matter before the Board.

12To summarize, Counsel submitted that the complaint had been filed in an untimely manner with the Board contrary to Section 8(4)(3) of Regulation 378/07 (the “Regulation”) of the Ontario Public Service Ontario Act, 2016, (the “Act”).

13The second, and alternative, objection raised by the Employer cited the Complainant's failure to comply with Sections 9(1)(5) and 10(1) of the Regulation.

14The Board will review and discuss the impact of these preliminary objections upon the complaint later in this decision.

15A teleconference was scheduled by the Board on December 14, 2018, to review and address the submissions of the parties with respect to both complaints. During the course of the teleconference the Complainant advised the Board that she was not prepared to address the Employer’s preliminary objection with respect to the timeliness of both complaints.

16The Board directed the Complainant to provide written submissions addressing the preliminary issues raised by the Employer in its Form-2 Response and the teleconference hearing. The Board further provided the Employer with the opportunity to provide a written response to the Complainant's submissions should it determine it necessary to do so.

17On January 16, 2019, the Board received the written submissions of the Complainant. Counsel for the Employer filed reply submissions on January 23, 2019. Despite being afforded the opportunity by the Board to do so the Complainant did not file any further submissions in response to that filed by the Employer.

THE TELECONFERENCE HEARING

18During the December 14, 2018 teleconference hearing the Complainant was assisted by Mr. Brian Green. Mr. Jonathan Rabinovitch and Mr. Sean White represented the Employer as Counsel.

19During the course of the teleconference the parties were able to come to a consensus with respect to four general areas of fact surrounding the complaint. The agreement on these facts were relevant to both the current complaint before the Board and file number P-2018-0617. Firstly, it was acknowledged that the Complainant had been absent from work since September 12, 2016 and that there was no indication as to when she might be returning to the CECC.

20The parties further agreed that the Complainant had provided the Employer with a series of medical notes from her Physician. To summarize, the Doctor’s opinion suggested that the Complainant could only return to the CECC if she was able to work independent of certain colleagues. There was further agreement as to when these documents were received by the Employer. Although various medical notes had been received during the course of the Complainant’s absence from work the “diagnosis” of the Complainant and the suggested remedies put forth by the Doctor had remained the same.

21Thirdly, there was an acknowledgement that the Complainant filed her notice with the Deputy Minister on February 26, 2018 to complain about her treatment at the CECC. It was further agreed that the filing of the notice to the deputy was required by the Regulation. Finally, the parties agreed that neither the Deputy Minister nor a delegate held a meeting with the Complainant.

22Finally, the parties agreed that the Complainant dated her Form-1 Application as being completed on April 30, 2018. There was further agreement that the Board received the complaint on May 14, 2018. The parties agreed that the Form-1 Application was “time stamped” by the Board on that date. The importance of the time stamp and the other agreed to dates are discussed later in this decision.

23Despite the general consensus on the above discussed issues, significant differences remained between the parties. Once again these differences of opinion proved relevant to the matter currently before the Board as well as file number P-2018-0617. The Complainant attributed her absence, commencing on September 12, 2016, to a pattern of “bullying” and “harassment” that she had been subjected to by her workplace colleagues and to her Employer’s failure to protect her from this behaviour by ensuring that she was accommodated.

24Counsel for the Employer strenuously disagreed that any “harassment” or “bullying” had taken place. The Employer noted that the Complainant had failed to identify any specific incidents or participants in the alleged behaviour prior to the Complainant departing the workplace on September 12, 2016. Counsel further noted that the Complainant had failed to provide the Employer or the Board with examples of “bullying” or “harassment” that had been directed toward her after she absented herself from the CECC in September, 2016.

25Finally, the Employer took the position that the Board lacked the jurisdiction to entertain the complaint before the Board as well as File number P-2018-0617 as both had been filed with the Board outside the time limits described in Sections 8(4)(3), 9(1) and 10(1) the Regulation. Counsel directed the Board to the extensive written submissions that they had forwarded to the Board in their Form-2 Response, dated August 17, 2018.

26As mentioned above in paragraph 14, above, the Complainant took the position that she was unable to respond to the Employer's preliminary objections with respect to the interpretation and application of Sections 8(4)(3), 9(1), 9(5) and 10(1) of the Regulation. As a result the Board directed the parties to file written submissions setting forth their positions on the Employer’s two preliminary objections.

27In response the Employer advised the Board and the Complainant that it would continue to rely upon the submissions and authorities with respect to the preliminary objections filed in the Form-2 Response. Counsel further reserved the right to reply to any issues that the Complainant might advance in her submissions.

WRITTEN SUBMISSIONS WITH RESPECT TO PRELIMINARY OBJECTIONS

28The Complainant filed her submissions with the Board on January 16, 2019.

29Despite being given the opportunity to respond to issues raised by the Employer, the Complainant did not provide any examples in support of her allegations that she had been bullied or harassed. She further chose not to furnish the Board with an example or examples as to how the Employer had failed to accommodate her other than the Employer had not responded to the suggested direction contained in her Physician's notes that she was no longer to work alongside a good number of colleagues at the CECC.

30The Complainant’s submissions with respect to the Employer’s preliminary objections before the Board were brief. The Complainant filed no submissions that directly responded to the preliminary submissions raised by the Employer in its Form-2 Response and during the course of the December 14, 2018, teleconference.

31The Complainant’s sole submission was that, as a result of the Board’s decision to hear and issue a decision with respect to file number P-2017-3388 the Board had acknowledged that it had jurisdiction to hear this particular complaint.

32The Complainant did not elaborate on this opinion or provide any authorities in support.

33As mentioned in paragraphs 25 and 27, above, Counsel for the Employer at the December 14, 2018 teleconference advised the Board that it would continue to rely upon the written submissions that were contained in its Form-2 Response and as requested that the Board review them. These submissions identified the two preliminary objections that Counsel subsequently raised during the course of the December 14, 2018 teleconference.

34Finally, Counsel further filed reply submissions with the Board on January 23, 2019 in response to the Complainant’s correspondence filed with the Board on January 16, 2019. What is discussed below is the totality of their submissions.

35Counsel reiterated that the complaint was not sufficiently particularized. While this concern did not represent a preliminary objection, the lack of clarity that surrounded the Complainant’s allegations did contribute to the preliminary objection of the Employer.

36By way of overview Counsel for the Employer suggested that both objections arose from the fact that the Complainant had filed the complaint outside of the mandatory time limits described in the Regulation. Based on a finding of a breach of one or both of these requirements Counsel submitted that the complaint should be dismissed. In support of its general proposition the Employer directed the Board’s attention to the documents filed by the Complainant and the dates that both parties acknowledged when certain events had occurred, when the notice to the deputy had been received and when the complaint itself had been filed and time stamped with the Board.

37With respect to the first preliminary objection the Employer submitted that Section 8(4) of the Regulation requires an employee to file a complaint with the deputy minister within 14 days of becoming aware of a breach of a working condition or term of employment.

38The Employer submitted that the complaint alleged that the Complainant had been subjected to “continued bullying and harassment”. Counsel stated that, similar to the allegations of “harassment and bullying” raised in Board complaint P-2018-0617, these allegations had been inadequately particularized and lacked specific dates or examples of incidents or those allegedly involved in the behaviour. Further, the Complainant had enjoyed ample opportunity to provide particulars throughout this procedure and had failed to do so. Finally, in the absence of any particulars to the contrary and given that the Complainant had been absent from the CECC since September 12, 2016, the Board could only be left to conclude that the Complainant was suggesting that these allegations took place at a point in time prior to her departure from the CECC.

39Given all of the above, Counsel submitted that the Complainant was required to file the complaint with the deputy minister within the requisite 14 day of becoming aware of the breach of the alleged working condition as required by Section 8(4)(3) of the Regulation. The 14 day period, in the submission of Counsel would have commenced after she absented from the CECC on September 12, 2018 or October 7, 2016, when she filed medical evidence in support of her request for accommodation with the Employer.

40However, the Complainant did not file her notice with the deputy minister until February 16, 2018, some 16 months after she absented herself from the workplace or seventeen months after the Employer received the medical notes from her physician.

41In the submission of the Employer no matter what date the Board chooses to determine as initiating the 14 day period the notice to the deputy minister was filed well beyond the mandatory period described in Section 8(4)(3) of the Regulation.

42In this matter the Complainant’s contravention of the mandatory provisions as set out in Section 8(4)(3) of the Regulation, in the submission of Counsel, is clear and unambiguous. The dates and times of the documents forwarded by the Complainant create, in Counsel’s view, a prima facie infringement of the relevant section of the Regulation. As a result, pursuant to Section 8(4(3)) of the Regulation the complaint must be dismissed by the Board.

43With respect to its second preliminary objection the Employer submitted that the complaint failed to comply with the mandatory time requirements for the filing of a complaint pursuant to the mandatory provisions described in sections 9 and 10 of the Regulation.

44The Complainant, in the submission of the Employer, had failed to adhere to the requirements set out in Section 9(1)(5) and Section 10(1) of the Regulation.

45Counsel submitted that the documents provided by the Complainant to the Board established that the Complainant filed her notice to the deputy minister on February 26, 2018. As was acknowledged by both parties during the course of the hearing process the Complainant did not meet with the deputy minister at any time following the filing of the notice of complaint.

46In the submission of Counsel Section 9(1)(5) clearly establishes that once a notice is forwarded by a complainant to the deputy minister or delegate and a meeting of the parties does not take place within 30 days the period for dispute resolution is determined to have expired.

47The Employer submitted that once the 30 day period for dispute resolution has expired Section 9(1)(5) requires a complainant to file a complaint with the Board pursuant to the requirements described in Section 10(1) of the Regulation.

48With respect to this complaint, in the submission of Counsel, there is no dispute that the Complainant filed the notice to the Deputy on February 26, 2018. This is, in the view of Counsel, clearly established by the date on the correspondence that the Complainant herself did not dispute as being inaccurate. Therefore, in the submission of Counsel the thirty day dispute resolution period must be determined to have expired on March 28, 2018.

49Counsel stated that commencing on March 28, 2018, the Regulation required the Complainant to file her complaint with the Board within 14 days. Counsel directed the Board’s attention to Section 10(1) of the Regulation in support of this submission.

50In the view of Counsel the Complainant’s statement that she completed the complaint on April 30, 2018 did not satisfy the Regulation’s requirement that the complaint be received by the Board within the requisite 30 day period. However, even if the Board was persuaded by the Complainant’s interpretation of the requirements set out in the Regulation this would still fall outside the 30 day period for filing the complaint.

51The only time frame relevant to this matter, in the view of Counsel, was the 14 day period that commenced on March 28, 2018 and concluded on April 11, 2018. That, in the submission of Counsel, was the 14 day period that the Complainant had under Section 10(1) of the Regulation to file her complaint with the Board. It was an undisputed fact that the complaint was date stamped by the Board as received on May 14, 2018, some 33 days after the April 3, 2018 deadline.

52It was, in the submission of Counsel, clear on the face of the notice to the deputy and the time stamped complaint forwarded to the Board that the Complainant’s complaint was filed well outside of the 14 day mandatory period required by the Regulation. As a result the Board must dismiss the complaint as it lacked the jurisdiction to alleviate against the timeline breach.

53In conclusion, Counsel submitted that the Board could dismiss the complaint on either alleged violation of the timelines as established by the Regulation.

54The Board received the following authorities for consideration: St. Amant v Ontario (Community Safety and Correctional Services) 2013 CanLII 4673; Stricko and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB -2017-3833 CanLII 88984 (ON PSGB) and Morris and The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services) PSGB-2017-0813 and CanLLII 64318 (ON PSGB).

DECISION

55Having reviewed the written and the oral submissions advanced by the parties throughout this hearing process and the authorities forwarded for my consideration I have come to the determination that the complaint be dismissed. The complaint was not filed with the Board in a timely manner and as a result the Board lacks the jurisdiction to make any further enquiries into the substance of the Complainant’s allegations.

56The relevant Sections of the Regulation are as follows:

Section 8(4)(3) describes the mandatory timelines for the filling of a complaint. It states:

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, S. 8(4).

Section 9(1) states:

Period for dispute resolution

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

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

Finally, Section 10(1) provides:

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).

57Counsel for the Employer is correct when he states that the timelines referenced above are mandatory and the Board is without authority to relieve against a complainant’s failure to strictly adhere to them.

58The Board has issued a multitude of decisions that dismiss complaints on a preliminary basis where a complaint has fallen outside of a requisite timeline.

59Decisions such as St. Amant v Ontario (Community Safety and Correctional Services), 2013 CanLII 4673 and continuing to the decision at hand illustrate that the Board has consistently concluded that a contravention of the mandatory timeline requirements set out in the Regulation will inevitably lead to the dismissal of the complaint.

60Counsel for the Employer directed my attention to the decision in Morris v. The Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), PSGB-P-2017-0813, CanLII 64318 where Vice-Chair Nairn summarized the issue of the mandatory nature of the Regulation’s timelines. Vice Chair Nairn, at paragraph [11] stated:

“It has been held by the Board that the timelines set out in the current Regulation are mandatory and, if not met, deprive the Board of jurisdiction to entertain a complaint. The Board has no discretion to relieve against the regulatory time limits. See the decisions in St. Amant v Ontario (Community Safety and Correctional Services), 2013 CanLII 4673 and Ois v Ontario (Community Safety and Correctional Services), 2014 CanLII 76835.”

61The parties are in agreement as to the chronological ‘path’ that led to this complaint coming before the Board. By agreeing to this chronology the parties have endorsed the critical issues that will assist the Board to resolve this complaint. This left no doubt as to when the Complainant commenced her absence from the workplace, when certain medical documents were provided to the Employer, when the notice of complaint was forwarded to the deputy minister and, finally, when the Form-1 Application ‘complaint’ was time stamped by the Board.

62When all of these relevant and agreed upon dates are measured against one another it is clear that the Complainant's complaint is untimely and therefore must be dismissed.

63It is undisputed that the Complainant stopped attending at the CECC on September 12, 2016. She left because, in her opinion, she was being subjected to harassment and bullying, by certain workplace colleagues and, further, that management had failed to take any positive steps to rectify the problem.

64The Complainant then went on to file the complaint currently before this Board that alleged further “harassment and bullying” and that, to summarize, the Employer was neither not communicating with or adhering to her Doctor’s direction and advice.

65As the Complainant did not provide the Board with any evidence that alleged that the harassment and bullying originally complained of continued after she absented herself from the CECC or that there existed further examples of the Employer questioning her physician’s advice the Board is left with no option but to determine that this was behaviour that the took place on or before September 12, 2016.

66That being the case the Complainant should have filed her notice to the deputy as required by the Section 8(4)(3) of the Regulation within 14 days of becoming aware of the violation. At best this would have had to occur 14 days after the April 27, 2017, when the Physician’s notes were received by the Employer.

67The documents before the Board clearly establish that the notice to the deputy was not filed until February 26, 2018, some 12 months after she became aware of the alleged violation of the working condition or term of employment.

68Section 8(4)(3), contains a mandatory timeline of 14 days for the filing of a complaint about a working condition. The 12 month period that the Complainant took to file with respect to the issues of continued “bullying”, “harassment” and the Employer’s response to her Physician’s medical evidence is well past those 14 days. This clearly violates the mandatory timelines established in Section 8(4)(3) of the Regulation.

69The Complainant’s contravention of the timelines with respect to Section 8(4)(3) leaves the Board with no alternative but to dismiss the complaint.

70With respect to the Employer’s second preliminary objection the parties agreed that no dispute resolution meeting took place between the deputy minister and the complainant following the filing of the notice of complaint on February 26, 2018. As described in Section 9(5) of the Regulation the dispute resolution period expires 30 days after the complaint received which in this matter was March 28, 2018.

71Section 10(1) of the Regulation requires that a complaint to the Board be filed 14 days after the expiration of the dispute resolution period. Given that the dispute resolution period expired on March 28, 2018, the Complainant had by the mandatory timelines set out in Section 10(1) until April 11, 2018, to file her complaint with the Board.

72As determined by the Board’s time stamp the complaint with the Board was filed by the Complainant on May 14, 2018, some 33 days after the April 11, 2018 deadline for filing. This clearly exceeds the 14 day time period described in Section 10(1) of the Regulation.

73As a result of the Complainant’s breach of the mandatory timelines in Section 10(1) of the Regulation the Board concludes that it has no jurisdiction to hear the dispute.

74As a result of all of the conclusions set out in paragraphs 69 and 73, above, the Board finds that the complaint is untimely and is therefore dismissed.