PSGB# 2017-3793

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Baccega

Complainant

• and –

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

Employer

BEFORE

Brendan Morgan

Vice Chair

FOR THE COMPLAINANT

Adaline Huang, Lai-King Hum and Katherine Lam (Co-Counsel) Hum Law Firm

FOR THE EMPLOYER

Stewart McMahon (Senior Counsel) Peter Dailleboust (Senior Counsel) Treasury Board Secretariat Legal Services Branch

HEARING

September 28, 2018, March 19, 2019; and July 25, 2018, March 7 and December 20, 2019 (by teleconference)

SUBMISSIONS

January 24, 2020, February 11, 2020 and February 24, 2020

Decision

1The Complainant and the Respondent have requested that the Board reconsider and either vary or revoke its decision of December 11, 2019 in which the Board dismissed one of two complaints filed by the Complainant.

BACKGROUND

2Ms. Maria Baccega (the “Complainant”) was employed by the Respondent, the Ministry of the Solicitor General (‘SG’ or the ‘Employer’) as a Sergeant until her employment with the Employer was terminated on October 25, 2017. At all relevant times the Complainant was employed at the Employer’s Toronto South Detention Centre, (‘TSDC’).

3The Board assigned separate file numbers to each complaint. The first, Board file number P-2017-0636, alleged that the employer had leaked “confidential information” about the complainant to other employees pertaining to her personnel file. The complaint was filed with the Board as an application alleging “Disclosing and Investigating Wrongdoing” against the Employer.

4The second complaint challenged the Employer’s decision to terminate the employment of the Complainant. It too was filed under the Board’s “Form 1 a - Application Political Activity/Disclosing and Investigating Wrongdoing” alleging that the termination of the complainant’s employment was a reprisal for her disclosure of wrongdoing. The Board assigned file number P-2017-3793 to this complaint.

5The employer sought to have the complaints dismissed for the following three reasons. Firstly, the employer submitted that the complaints filed by the complainant failed to establish a prima facie case that the complainant was a “whistle blower” or that the complaints otherwise “disclosed wrongdoing” by management. Secondly, the complaints had been improperly filed pursuant to Regulation 378/07 (the “Regulation”) of the “Public Service of Ontario Act, 2006” (the “Act”) in that they had not been reported to the Integrity Commissioner. Finally, given that the complaints did not meet the criteria as “disclosing wrongdoing” they were subject to the timeliness requirements for filing a complaint as set out in Section 9(1) of the Regulation and because of that the complaints were untimely.

6A Mediation session was held at the Board’s office on July 6, 2018. Submissions with respect to both complaints were presented on July 25 and September 28, 2018 and March 7 and 19, 2019. The Board issued its decision on December 11, 2019.

7At the commencement of the hearing the parties agreed to rely upon an agreed-to set of documents that were described in the decision as an ‘Arbitration Book of Documents’’. The parties further agreed to supplement these materials if necessary throughout the hearing.

The parties further agreed not to call any viva-voce evidence and as a result proceeded to complete the hearing exclusively through oral submissions.

8Finally, the parties advised the Board that the complainant had initiated an application (the ‘application’), with the Human Rights Tribunal of Ontario (the ‘H.R.T.O.’). It is important to note that neither the application or the particulars supporting the application were put before the Board for its consideration or review at any point during the hearing.

DECEMBER 11, 2019 DECISION OF THE BOARD

9As mentioned in paragraph 1, above, the Board’s decision dismissed one of the two complaints filed by the Complainant, file number P-2017-3606. After reviewing the documents and the submissions of the parties the Board, at paragraph 53 determined that the Complainant had failed to establish a “prima facie case of wrongdoing as defined in Section 108 of the Act.”

10Given its determination that the Complainant had failed to establish a prima facie case related to the issue of “disclosing of wrongdoing” the Board found it unnecessary to rule on the employer’s other challenges to the complaint which included the issue as to whether the complaint was filed in a timely manner pursuant to Section 9(1) of the Regulation.

11With respect to the second complaint, file number P-2017-3793, the Board deferred to the parties to advise the Board as to whether the matter would be returned for hearing or whether it would proceed before the H.R.T.O..

12Following the release of the decision the Board was contacted by Counsel for the Employer, who, on behalf of his client and Counsel for the Complainant advised that they were requesting that the Board reconsider the December 11, 2019 decision. Following a teleconference hearing the Board directed the parties to provide written submissions in support of their request. Both parties filed submissions with the Board concluding with the Employer’s reply submissions submitted on February 25, 2020.

THE BOARD’S JURISDICTION TO RECONSIDER AND THE POSITION OF THE PARTIES

13The Board’s power to reconsider a decision is found at Rule 23 of the “Public Service Grievance Board Rules and Practice Notes”. Rule 23 states:

“Reconsideration

23. The Board may, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

The Board has issued two decisions that reviewed its ability to reconsider a decision: “Tyrell v Ontario (Ministry of Community Safety and Correctional Services), 2004 CanLII 55241 (ON PSGB)” and “Lee v. Ontario (Ministry of Community Safety and Correctional Services), 2006 CanLII 17924 (ON PSGB)”. These authorities, however, do not assist the Board in the matter as both were decided before the Board adopted the power to reconsider through Rule 23, above.”

14Since coming into effect the Board has yet to issue a decision involving the interpretation or application of Rule 23.

15However other administrative tribunals in Ontario have developed procedural mechanisms to reconsider their decisions. For example, the Ontario Labour Relations Board, (the ‘O.L.R.B.’) has long enjoyed the ability to reconsider its decisions and have developed and applied a test which has been employed when requests for reconsideration have been submitted to the Board.

16The O.L.R.B.'s test for reconsideration is thoroughly canvassed in a number of its decisions. In, “Labourers’ International Union of North America, Ontario Provincial Council v. Superior Waste Recovery Inc., 2012 CanLII 69861 (ON LRB)”. Chair Fishbein identified four conditions that a party would be required to meet to access reconsideration.

17At paragraph 7, Board Chair Fishbein outlined two of the underlying principles that guide the O.L.R.B. applies when reviewing a request for reconsideration:

“7. There is no real dispute between the parties as to the test for reconsideration. Both parties refer to “John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096 para 5 or the Board’s Information Bulletin No. 19 which succinctly summarizes the test as follows:

Generally, the Board will not reconsider its decision unless the requesting party has new evidence that would be particularly conclusive of the case and that it could not have reasonably obtained earlier, or the party has new objections or arguments that it had no opportunity to raise earlier. Because of the need for finality in labour relations matters, the Board does not treat its reconsideration power as either a tool for a party to repair the deficiency of its case nor as an opportunity to reargue it. (See John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096) If the requesting party relies on matters that could reasonably have been raised at the original hearing, the Board will normally not reconsider its decision.”

18Chair Fishbein further acknowledged that reconsideration would be an appropriate response of a tribunal if another one of the following two factors emerged. Firstly, if the original decision divulged an “obvious error of law” or, secondly, if “an important policy issue which has not been given adequate attention or consideration” was identified by the tribunal. At paragraph 17 of the decision, Chair Fishbein, in dismissing the request for reconsideration, stated that:

“The risk and the burden of the consequences of the deliberate failure to respond lies solely on Superior Waste. I view that neither as an obvious failure in the Board’s first decision, nor an important policy issue which has not been given adequate attention or consideration and certainly not new evidence which was not available at the time and which Superior Waste did not have an adequate opportunity to raise.”

19The O.L.R.B.’s decision in “William Hill Jr v International Brotherhood of Teamsters, Chauffeur, Warehousemen and Helpers, Local 938, 1995 CanLII 10038, [ON LRB], further assists this Board in formulating a test for reconsideration. At paragraph 3 Vice-Chair Surdykowski discussed Section 114(1):

“Pursuant to this provision, the Board has broad discretion to reconsider any of its decisions. However, the same provision, and legal and labour relations considerations, also demand that the Board operate from the premise that a Board decision be final and conclusive for all purposes unless there is a good reason to change it. Accordingly, the Board has in the past generally declined to reconsider a decision unless an obvious error has been made; or a request for reconsideration raises important policy issues which have not been given adequate attention or consideration; or the party requesting reconsideration proposes to adduce new evidence which it could not, with the exercise of reasonable diligence, have obtained and adduced previously, and which new evidence would, if accepted, have a material impact on the decision in question; or if a party make representations which it has had no opportunity to make. Section 114(1) of the Act is not intended to provide an opportunity for someone to make representations s/he had the opportunity but chose not to make, or an opportunity for someone to re-argue his/her case, either de novo or as some form of appeal.

20The Board is of the opinion that the test for reconsideration articulated in such decisions of the O.L.R.B. in “Labourers' International” and “William Hill”, above, represent the appropriate test for the Board when applying Rule 23.

21The Board notes that only the first complaint, P-2017-3606, is the matter for reconsideration. As the second complaint related to the discharge of the Complainant was not decided in the December 11, 2019, decision of the Board reconsideration is not available to the parties.

22With respect to the Complainant’s request for reconsideration it would appear that the entirety of its submissions are dependent on the Complainant’s H.R.T.O. application, including the supporting particulars, being before the Board for its consideration. The application in question was filed with the H.R.T.O. on March 21, 2016.

23To summarize, the Complainant submits that the application to the H.R.T.O. was in itself a disclosure of “wrongdoing” in that it exposed the harassment and discrimination that the Complainant was subjected to at the TSDC by senior members of management.

24Counsel further submits that the “disclosure of wrongdoing” lead to reprisals by the employer which included the employer’s alleged leaking of confidential information about the Complainant’s personnel file and, subsequently, the employer’s termination of the employment of the Complainant.

25As a result, in the submission of the Complainant, the two complaints before the Board are immune from the mandatory timeline provisions found at Section 8(4) and 9(1) of the Regulation. Instead, the complaints are guided by the provisions found in Part VI of the Act and Section 9(2) of the Regulation as the complaints are part of a broader process alleging “disclosing and investigating wrongdoing”.

26Counsel went on to provide additional submissions concerning the role of the Ethics Executive in the process involved in the reporting of a disclosure of wrongdoing. Again, the Complainant’s position in this submission was predicated on the complete application to the H.R.T.O. being in front of the Board during the course of the hearing for it to rule upon. It was not.

27The Employer’s submissions for reconsideration were also dependent upon the Complainant’s H.R.T.O. application being before the Board.

28In contrast to the Complainant’s position, the Employer took the position that the Board should not conclude that the applications before H.R.T.O. disclosed a prima facie disclosure of wrongdoing by the employer as contemplated by Part VI of the Act. Counsel submitted that the Act did not mandate that all alleged violations of an Act or Regulation be determined as “disclosures of wrongdoing”. According to Counsel for the Employer this would be the case with respect to the Complainant’s application to the H.R.T.O..

29In the submission of the Employer, if the application was determined not to have disclosed wrongdoing as defined in Part VI of the Act the Complainant could not rely upon the timeliness exemptions found in Section 9(2) of the Regulation and Part VI of the Act.

30If the Board was to reach the conclusion that the complaints were not insulated by virtue of Part VI of the Act and section 9(2) of the Regulations the complaints would have to adhere to the time limits described in section 8, 9 and 10 of the Regulation. Since it was acknowledged by the Complainant in its reconsideration submissions that the complaints did not comply with the timelines for filing a complaint as described in sections 8(4) and 9(1) of the Regulation the Board would be left with no option but to dismiss both complaints as untimely.

DECISION

31Having carefully reviewed the submissions of the Complainant and the Employer the Board is of the view that it should not reconsider its decision of December 11, 2019.

32At this juncture of the decision it is important to recall when reconsideration will be denied to a party or parties and when it will be permitted. It is not a form of appeal that might otherwise be viewed as the exclusive jurisdiction of an appellate court. It is not available for a party or parties to repair the deficiencies of its original case nor should it provide a party or parties with an opportunity to relitigate the case. It is available, as described in paragraphs 20 and 21, above, when an obvious error has been made and/or when the request for reconsideration raises an important policy issue which has not been given adequate attention or consideration.

33In coming to its conclusion that reconsideration is not appropriate the Board first turns its attention to resolving whether the original decision contains an obvious error or raised an important policy issue which has not been given adequate attention or consideration. Having reviewed the decision and the submissions of the parties the Board is not persuaded that the previous decision was made in error or that an important policy question has been raised.

34Therefore, the question that the parties must address is whether their submissions “reveal new evidence that would be “practically conclusive of the case and it could not not have reasonably obtained earlier” and/or that one or both of the parties” have new objections or arguments that it had no opportunity to raise earlier.” This was the test articulated both in the “Labourers International” and “William Hill’ decisions discussed above at paragraphs 19 through 21.

35The primary obstacle that encumbers both parties' positions is their suggestion that the Board erred in not considering and interpreting the Complainant's application to the H.R.T.O. and, further, the consequences such an interpretation would have upon the status of the complaint.

36Both parties have asked the Board to evaluate the effect of the H.R.T.O. application on the complaints. The difficulty facing the Board is that neither the application nor the particulars attached to the application were put before the Board for review at any point during the hearing process. The parties are asking the Board to now interpret and rule on a document that could and should have been before the Board, in its entirety, at the original hearing.

37For reasons unknown to the Board the parties, particularly the Complainant, chose not to provide the Board with the application. The Board only fully became aware of the timing surrounding the filing of and general particulars underlying the application during the course of this reconsideration request.

38The test articulated at paragraphs 19 through 21, above, provides abundant guidance to the Board in determining this matter. Both parties had ample opportunity to bring the H.R.T.O application to the attention of the Board. The Complainant had every opportunity to provide the Board with the details surrounding the H.R.T.O. application in support of its position that the application itself was a disclosure of wrongdoing and that subsequent actions of the Employer were therefore reprisals. Secondly, this would have further assisted with its submission that the complaints were not bound by the mandatory timelines described in the Act and the Regulation. The failure of the Complainant to produce the H.R.T.O. application at the original hearing prohibits the Board from now ruling on the relationship between the application and the complaint.

39The Board agrees with that part of the test described in the O.L.R.B. decision at paragraph 7, above, when the O.L.R.B. determined that reconsideration is not appropriate where a party or parties could have reasonably raised and pursued a matter or matters at the original hearing. The Board finds that either party, particularly the Complainant, could have easily raised and pursued the H.R.T.O application at the original hearing. The parties’ failure to do so leads to the inevitable conclusion that reconsideration is not an appropriate outcome. The application was in the possession of the Complainant and the Employer. It could have been included in the otherwise extensive “Arbitration Book of Documents” that was entered as an Exhibit. It was not nor was it produced at any time before the Board during the original hearing.

40Finally, a further review of the complaint and the supporting documents filed by the parties with the Board fail to reveal any reference to the H.R.T.O. application. In the absence of some reference to the application in these documents the only manner in which the Board could have accessed the details surrounding the application would have been through the introduction of the actual application and the particulars attached to it during the course of the hearing.

41In conclusion, the Board is of the view that this is not a situation where reconsideration is appropriate. The parties have failed to satisfy that part of the reconsideration test endorsed by the Board that reconsideration will be appropriate when new evidence that is “practically conclusive of the case that could not have been reasonably obtained earlier” is now before the Board as part of a request for reconsideration. According to the submissions of the Complainant the application was filed with the H.R.T.O. in March, 2016, some twenty-eight months before the first day of hearing of this matter when the “Arbitration Book of Documents” were agreed to by the parties. Having chosen not to employ that opportunity to enter the document before the Board at that time it chose not to offer it as an Exhibit or otherwise rely upon it at any other time during the hearing. There is nothing to suggest that the parties did not have or were otherwise denied an opportunity to raise the existence of and particulars relevant to the application and, further, the significance of that evidence on the complaints. After the initial mediation date the parties met with the Board on four occasions, twice in person and twice by teleconference. While references were made to the existence of a ‘Human Rights Complaint’ during the process the first time the Board was made aware of the time of the filing of the application and the particulars surrounding the application itself was when the request for reconsideration was received and when submissions were later filed by the parties.

42As a result of all of the above the request for reconsideration is dismissed.

43The Board now turns to the “termination complaint”, file number P-2017-3793. This complaint remains outstanding. At paragraphs 60 and 61 of the Board’s December 11, 2019 decision the Board provided the parties with the opportunity to make further submissions as to how they might choose to see the complaint proceed.

44As noted above, during the course of the hearing the parties referred to an application that the Complainant had filed with the H.R.T.O.. However, neither the particulars surrounding the application or the document itself were disclosed to the Board.

45At the conclusion of the hearing the parties were asked by the Board to advise whether the facts surrounding the termination complaint would be litigated at the Board or the H.R.T.O. While the parties did not directly respond to the Board’s request, their submissions for reconsideration have enabled the Board to resolve file P-2017-3793. These submissions may be summarized as follows.

46If the Board was to find that the Complainant’s discharge constituted a “reprisal” by the Employer for the filing of the application at the H.R.T.O., the mandatory timelines set out in the Regulation for filing a complaint would not apply. Such a finding would allow the complaint to proceed for a hearing before the Board.

47Conversely, if the Board was to determine that the termination of the Complainant’s employment did not represent an act of reprisal by the Employer the complaint must be subject to the mandatory provisions described in the Regulation. Such a conclusion would leave the Board with no alternative to dismiss the complaint as untimely.

48Before determining if the timelines have been breached, the Board must first address the question as to whether the Complainant’s discharge was the Employer’s response to the filing of the H.R.T.O. application. After reviewing the parties submissions the Board is not persuaded that this is a viable reprisal complaint.

49The Board’s conclusion with respect to the ‘termination complaint’ reflects its’ findings described in paragraphs 32 through 42, above. Firstly, the documents that the Complainant initially filed with the Board fail to disclose or otherwise reference a relationship between the H.R.T.O. application and the decision of the Employer on October 25, 2017 to terminate the Complainant’s employment.

50Secondly, while there were references made by Counsel during the course of the hearing process as to the existence of the H.R.T.O. application these references lacked substantial detail as to the nature and timing of the complaint and its relationship to the Complainant’s discharge.

51In its December 11, 2019, decision the Board at paragraphs 48 through 50, chronicled the sequence of events that the Complainant alleged led to the discharge. This included alleged assault at the TDSC involving the Complainant, the “leaked documents” and the Complainant’s discharge. At that time the Board concluded that the Complainant had failed to establish a causal linkage between the “leaked document” complaint and the termination of her employment.

52The parties now ask the Board to determine if a prima facie case exists between the filing of the application at the H.R.T.O. and the discharge of the Complainant. The Board initially understood this to involve a period of nineteen months, commencing on March 21, 2016, the original date of the filing of the application and October 23, 2017, the date upon which the Complainant’s employment was terminated. The Complainant now makes two submissions. The first is that adequate notice to the “Ethics Executive” was made pursuant to the requirements of Section 7(2) of the Act because, in the submission of the Complainant “the application, once filed, must have come to the attention of the Deputy Minister”. Secondly, the Complainant now suggests that appropriate timeframe for review is six months, commencing on April 10, 2017, the date that the Complainant “reactivated” the H.R.T.O. application and the discharge on October 23rd, 2017.

53The Board concludes that even if it was to acknowledge that proper notice to the Ethics Executive was provided by the Complainant and/or the appropriate period to consider was the six months between April and October, 2017, the Complainant would be no closer to establishing a prima facie relationship between the application and the discharge. The Board remains encumbered with submissions that are absent of any facts that would support the existence of a prima facie relationship between the two events. As they appear before the Board the relationship between the two events are remote, at best. In the absence of any material facts that would support the proposition that the Complainant’s discharge was in reprisal for her filing an application with the H.R.T.O., the Board finds that the Complainant has not established a prima facie case of a reprisal under Part VI of the Act.

54Having reached that conclusion the single issue left for the Board to consider is whether the complaint follows the mandatory timelines set out in Sections 8(4) and 9(1)(3) of the Regulation.

55To answer that question the Board need not look any further than the Complainant’s submission where Counsel for the Complainant acknowledged that the complaint did not comply with the mandatory timelines described in the Regulation. The Complainant stated that:

“The Complainant confirms that the dates of dismissal, notice to Deputy Minister and meeting afterwards as set out in the Employer’s submissions are correct. We conceded that the filing of the complaints (P-2017-3606 and P-2017-3793) on either December 21, 2017 or March 15, 2018, did not comply with the timeline set out in O. Reg. 387/07 s.8(4) and s.9(1).”

56This was a position that was also reflected in the Employer’s submissions.

57It is incontrovertible that the Board is without jurisdiction to waive or otherwise provide a party with relief when the mandatory timelines set out in Sections 8(4), 9(1) and 9(3) of the Regulations have been breached. The Board has issued a number of decisions that reflect this principle. These include, “St. Amant v The Crown in Right of Ontario(Ministry of Community Safety and Correctional Services), 2013 CanLII 4673 (ON PSGB)”, “Ashdown et al v. Ontario (Community Safety and Correctional Services), 2017 CanLII 16732 (ON PSGB)”, and “Stricko and the Crown in Right of Ontario (Ministry of Community Safety and Correctional Services), CanLII 88984 (ON PSGB)”.

58The facts surrounding the timelines of this complaint leaves the Board with no alternative but to dismiss it without further review. By its own admission the Complainant acknowledges that the complaint does not comply with the Regulation’s timelines. This leaves the Board with no alternative but to conclude that the “termination complaint” has been filed contrary to the timeliness requirements established in the Regulation.

59The Board thereby dismisses complaint P-2017-3793 as untimely.