PSGB# 2019-0446

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Tighe

Complainant

• and -

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

Employer

BEFORE

Reva Devins

Vice Chair

FOR THE COMPLAINANT

Edward Tighe and Katherine MacCarone

FOR THE EMPLOYER FOR THE INTERVENORS

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Senior Counsel

Andrew Camman for K. Dermott, L. Beach M. Martin and P. Dolezal

Hugh MacDonald for G. MacDougall

E. Berezowski, B. Barber, M. Edgar, G. Kitzul and D. Wood, A. Mezzera, L. Blaney and S. Jensen

HEARING

October 18, 2019

SUBMISSIONS

November 1 and 26, 2019; January 6 and 10, 2020; February 7 and 18, 2020

Decision

1The Complainant, Mr. Tighe, has challenged the Employer’s refusal to grant his request to exit the Ontario Public Service (“OPS”) with enhanced severance benefits via the Voluntary Exit Program (“VEP”).

2The Employer raised a preliminary motion, asking that the complaint be dismissed on the grounds that the Public Service Grievance Board (the “Board” or “PSGB”) does not have jurisdiction to hear the complaint. The Employer argued that there was no alleged violation of a term or condition of employment and that the Board lacked the authority to grant the requested remedy.

3There are a number of other employees who have submitted similar complaints regarding the administration of the VEP. While these cases have not been formally consolidated, to ensure fairness, the Board asked counsel for the Employer to provide written submissions and a compendium of the relevant authorities. This package of material was forwarded to the other complainants who might be affected by the jurisdictional dispute and they were given the opportunity to respond.

4The Board also asked Employer counsel to address the fairness doctrine articulated in Bhasin v Hrynew, 2014 SCC 71.

Background Facts

5On December 12, 2018 a memo from the Secretary of the Cabinet was circulated to staff advising of a time limited opportunity to exit the OPS through the VEP. A Fact Sheet was provided that set out who was eligible to apply, what options would be available to employees who exit under the VEP and the consequences of reappointment to the OPS.

As context for the initiative, the information sheet indicated that the Employer decided to make the VEP available to Managers and Senior Management to ensure that services were delivered in the most efficient and effective manner.

6The Employer described the approval process as follows:

Approval

The Employer retains the sole discretion to approve any VEP requests. The Employer’s approval shall be based on the following consideration:

i. At the time that an employee VEP request is being considered, the Employer has plans to reduce the positions across the organization

ii. The Employer has determined in its discretion that the employee’s exit from employment supports the transformation of the Ontario Public Service.

A VEP application can be withdrawn by the employee at any time prior to receiving written notice of the Employer’s approval to exit.

The employee’s last day of work shall be discussed between the employee and the Employer, however it must be within the 2019 calendar year. Where no agreement is made between the Employer and the employee, the Employer shall have the discretion to determine an exit date.

7The only reference to how or whether decisions would be communicated to applicants was in an additional section with questions and answers:

Q6. How will I know if my VEP application has been approved?

A. If your application is approved, you will receive written notification from a senior official in your Ministry.

8The Complainant submitted his request for VEP and was advised that it was not approved due to operational needs. No further details were provided regarding the criteria for approval or the reason for the denial. Mr. Tighe was aware that other employees, occupying similar positions, were approved and he asked the employer for information about the VEP, including the process for selecting employees who would receive enhanced benefits; the Employer did not respond. Mr. Tighe alleges that he was not treated fairly or equally and complains that the process was not transparent. The remedy that he requested was “To be made whole in the process by being treated fairly and equitably by my Employer by granting me the same treatment they have provided to my colleagues in approving the VEP.”

9The other individuals who have complained about their inability to exit under the VEP described substantially similar circumstances. They received minimal reasons for the denial of their requests and expressed concerns about lack of transparency, an inability to know why their request was denied or what criteria was used to assess them against others who were approved.

Employer’s Preliminary Motion

10At the commencement of the hearing, the Employer raised a preliminary objection challenging the Board’s jurisdiction to hear the complaint on the merits. It took the position that the VEP does not form a term or condition of employment until the employee’s application is approved by the Employer. The Employer submitted that, when interpreting the Public Service Act of Ontario (“PSOA” or the “Act”), the legislation that governs the Board’s jurisdiction to hear complaints, the PSGB has consistently held that it will only enforce or interpret an existing term and condition of employment and cannot create new ones. While terms and conditions can include provisions in applicable legislation, such as the Human Rights Code, the allegations must relate to an existing term or condition of employment.

11The Employer argued that it did not make any commitments to existing employees when it communicated the existence of the VEP. Rather, it merely advised of an opportunity that might lead to revision of an employee’s existing contract. Counsel suggested that in accordance with the law governing contracts, the communication of the VEP was properly characterised as an invitation to treat: interested employees were invited to apply with an offer to leave under the conditions set out in the announcement, but the right to receive those benefits did not crystallise or form a term of the contract until approved by the Employer.

12Counsel maintained that employees initiated the VEP process by submitting a voluntary application to exit the OPS, but they remained free to withdraw their offer at any point before it was approved. Conversely, approval of the application remained in the sole discretion of the Employer. Ultimately, in the Employer’s view, there was no binding contract or term of employment until it accepted the employee’s offer. Counsel referred to the legal requirements related to invitations to treat that are set out in The Law of Contracts, Fifth Edition, Waddams and applied in UHN (Western and General Hospitals) and ONA, 2016 CanLII 6259 (ONLA) (Albertyn).

13The Employer acknowledged that once approved, the provisions of the VEP would become a term of employment and the Board would have jurisdiction to hear complaints about the Employer’s execution of those provisions. However, there was no “working condition or term of employment” over which the Board had jurisdiction prior to approval of a request for VEP.

14Counsel relied on a number of cases from the PSGB that have considered the limits of its jurisdiction, including findings that it does not have jurisdiction to hear a complaint generally alleging that the process or the decision was unfair or have the remedial authority to grant the relief requested by the Complainant: Scott et al v Ministry of Transportation, P-0001/96, July 7, 1998 (Lynk); L. Scarr v Ministry of Health, P-0131/96, May 7, 1997 (Leighton); Hasted/Berezowsky v Ministry of Community Safety and Correctional Services, P-2014-2665, January 18 2016 (Nairn); Mills v Ministry of Transportation, P/0015/97, March 13, 1998 (Walter); MacDonald et al v Ministry of Community Safety and Correctional Services, P-2012-4718, November 7, 2014 (O’Neil); Ransome v Ministry of Health and Long-Term Care, P-, October 30, 2006 (O’Neil); Garratt et al. v Ministry of Community Safety and Correctional Services, P-2003-1670, May 17, 2005 (O’Neil). Counsel also referred to the following case from the GSB: Sutherland v Ministry of Labour, GSB# 2006-0519 (Dissanayake).

15Lastly, counsel for the Employer commented on the application of the duty of good faith set out in Bhasin v Hrynew, supra. Counsel noted that the case arose in the context of a commercial contract and introduced two incremental steps to make the law more coherent and just. First, the SCC established that good faith contractual performance is a general organising principal of the common law. Second, that there is a common law duty to act honestly in the performance of contractual obligations. In the Employer’s submission, there are no alleged facts in the present case in which the doctrines set out in Bhasin could be invoked: the Complainant has not made any allegations or identified facts that would support a finding of bad faith or dishonesty.

16Counsel recognised that the complainants assert a lack of transparency that leaves them unable to determine whether there was bad faith in the determination of their application. However, counsel argued that the Board rejected a similar argument in Garratt et al, supra. The Employer submitted that in the ultimate analysis, the complainants have not identified a term or condition of their employment that entitles them to a particular process, a specific form of communication or transparency in the approval process. Nor have they identified any term or condition that was applied incorrectly or that guarantees approval of the VEP. In the absence of an existing term or condition of employment that has been allegedly breached, the PSGB is without jurisdiction to consider the merits of this case.

Complainants’ Response

17Ms. MacCarone, Mr. Tighe’s representative, submitted that the VEP was a policy created by the Employer that it was obliged to apply through a fair and transparent process. It was her position that Mr. Tighe cannot know if the Employer engaged in a discriminatory or bad faith review of his request for VEP because the Employer has refused to disclose any details: they have not identified the criteria to distinguish among applicants or offered full disclosure of the reasons for their decision.

18Ms. MacCarone urged the Board to take a broad and liberal interpretation of working conditions and terms of employment, as established in Kanga, supra. She also relied on other PSGB and GSB cases for the principle that the Board will consider whether the employer has breached their duty of fairness and or unfairly applied its policies: Gleason v Ministry of Transportation, P/0040/92 February 20, 1998 (Leighton); Harris et al. v Ministry of Community Safety and Correctional Services, P-2003-1479, December 22, 2005 (O’Neil); Cardoza v Ministry of Community Safety and Correctional Services, P-2009-1510 December 16, 2011 (O’Neil); Kanga v. Ministry of Health, P/0003/85, June 20, 1986 (Simmons); OPSEU (Koeslag) v Treasury Board Secretariat, GSB # 2013-1446, January 12, 2016 (Devins).

19Ms. MacCarone further addressed the Employer’s submission on the application of Bhasin. In her submission, the general duty of honesty imposes an obligation on the parties not to lie or knowingly mislead one another about matters directly related to the performance of the contract. Ms. MacCarone asserts that the Employer fell short of its responsibilities when it failed to respond to Mr. Tighe’s request for information about the VEP.

20Ms. MacCarone also reiterated her earlier position that the VEP formed a part of the employment contract between the Employer and the Complainant. Ms. MacCarone argued Mr. Tighe was a longstanding employee and each new endeavor should not be considered piecemeal, but as part of the whole. In her submission, the contract falls under the relational theory of contract, which although not fully described by her, I understand means that the focus should be on the relationship between the parties rather than discrete transactions. Therefore, due to the relational nature of the contract, Ms. MacCarone submitted that the contract was formed at the outset and should be analysed to take into account the ongoing nature of the employment relationship.

21The submissions of the other complainants were very similar. The Berezowski group complained that the approval process was neither fair nor transparent. They were not provided any insight into the vague reasoning behind the denial of their applications and they were not provided with any information regarding the criteria or process for VEP approval. In their submission, the Employer failed to meet its mandate to be fair, equitable and transparent. Ms. McDougall also claimed that the decision-making process was not fair or transparent; she further claimed that the Employer engaged in discrimination on the basis of age and disability when it denied her request for VEP.

22Ms. Mezzera, Blaney and Jensen took the position that by accepting applications for VEP, and approving some managers but not others, the terms and conditions ending their employment with the OPS were directly affected. They argued that the approval process was random, unfair, arbitrary, discriminatory and in bad faith, and that they were subjected to differential treatment.

23Counsel on behalf of Ms. Dermott, Beach, Martin and Dolezel posited that the Employer in this case is not an ordinary employer, but, as the Crown, has a special duty to act with honesty and integrity and not to treat its employees in a discriminatory or arbitrary manner, in bad faith or with caprice. In this case, the Employer was not justified in granting the benefit of early retirement to some employees but not others without a “bona fide business purpose”. By failing to disclose the reasons for their denial, the Employer did not treat its employees fairly and was capricious when it failed to provide a business justification for its decision.

24Counsel further argued that it was the Employer’s failure to administer the pre-existing contract that gives the Board jurisdiction. In his submission, characterising the VEP as an invitation to treat is fundamentally at odds with the intentions of the Public Service Act, which inherently requires the employer to administer the work relationship in a manner that is in good faith and not discriminatory, arbitrary or capricious. Therefore, it was submitted that it is always a term or condition of employment in the Public Service that employees are treated fairly.

Employer Reply

25Counsel submitted that the arguments of the complainants focused on being treated fairly and that they effectively suggest that the absence of evidence of good faith shifts the assumption to bad faith, thereby giving the Board jurisdiction. In the Employer’s submission, this argument turns the PSGB jurisprudence on its head. Counsel argued that currently, the Board only takes jurisdiction to implement and enforce the current terms and conditions of an excluded employee’s employment. It does not review the decision-making process for good faith when the Employer seeks to implement new terms and conditions. To find otherwise would be to considerably expand the Board’s jurisdiction.

26The Employer also suggested that any review for good faith would be a moot exercise because the Board lacks the jurisdiction to award the remedy requested. The Board would be limited to ordering disclosure of the process by which the decision was made to approve or deny, but the Board could not itself eliminate a position and award the VEP entitlements to a complainant.

Decision

27The PGSB has clearly defined jurisdictional limits and can only hear the full merits of a complaint in the specific circumstances spelled out by the legislature. In this case, section 4. (1) of Regulation 378/07 under the Public Service of Ontario Act permits a public servant “who is aggrieved about a working condition or about a term of his or her employment” to file a complaint with the Board. There are other circumstances where employees can also file complaints, such as when they have been dismissed or disciplined, however, they do not apply here. In order to proceed, I must first be satisfied that the complaints allege a breach of a working condition or term of employment; if not, the Board has no authority to issue a decision or grant a remedy.

28The complainants argued that by announcing the VEP, the Employer has either incorporated those terms and conditions into their current contract or established a policy or directive that was implemented in an arbitrary and unfair manner. Mr. Tighe, and some of the other complainants, stressed that this was an ongoing employment contract and therefore the introduction of the VEP automatically became embedded in their contract. On behalf of Mr. Tighe, the Board was encouraged to focus on the relationship as a whole and not on discrete transactions or elements of the employment relationship.

29The Employer maintains that there was no formal offer and acceptance of the VEP and, therefore, no legally binding contract. The Employer compared the current situation to a tender process, where one party actively seeks to solicit interest from the other party before entering into a contract. As such, it argued that three basic elements must be completed: an invitation to treat or invitation to interested parties to enter into discussions about a proposed contract; an offer by one party to enter a contract on the terms set out in the invitation; and acceptance by the other party. Only upon completion of all three elements have the parties entered into a legally enforceable contract.

30Applying this contractual principle to the VEP, the Employer maintains that its announcement was an ‘invitation to treat’ that merely explained the options available to interested employees and invited them to indicate their interest in an early departure from the OPS. New terms and conditions did not become a part of their existing contract until an employee actually applied for the VEP and the employer accepted their application. The initial communication was therefore pre-contractual, soliciting interest based on a representation of included benefits. However, prior to acceptance, there was no legally binding contract, as is evident by the ability of employees to withdraw their offer at any point up to the point it was accepted by the employer.

31The concept of ‘invitation to treat’ and the impact of pre-contractual representations has been considered in the employment context, including in a collective bargaining setting by Arbitrator Albertyn, in UHN v ONA, supra. The issue before Arbitrator Albertyn was whether nurses who indicated that they were available for weekend work were eligible for premium pay. He concluded that when employees made themselves available to work overtime, if it was offered, they were making a statement of intention akin to a pre-contractual representation. He compared that representation to a pre-offer, without any legal consequence. The true ‘offer’ came when the employer responded to the availability list and contacted the employee to come in to work overtime. The employee was free to decline, but once they accepted the offer, they were obliged to attend work.

32While I do not think that the tender or ‘invitation to treat’ analogy is perfect, I agree with the Employer that communicating the possibility of an early exit from the OPS under the VEP did not introduce a legally enforceable term or condition of employment into the complainants’ existing contracts. Similar to the reasoning of Arbitrator Albertyn, I consider the announcement of the VEP to be a precontractual representation. It is akin to exploratory discussions or negotiations without any assurances by the Employer that it would agree to modify the contract of any specific or individual employee. I appreciate that this is an ongoing employment relationship and agree that I should therefore look at the contract as a whole. Nonetheless, I am not persuaded that the nature of the relationship automatically converts all opportunities into a revision of an employee’s existing terms and conditions of employment. I must still determine whether the pre-contractual representation, when the Employer communicated who was eligible to apply for the VEP, amounted to a legally binding commitment.

33Applying the required contract analysis to the facts in this case, I find that there is no formal offer and acceptance, which are essential to the formation of a valid contract, until a VEP request is approved. When it initially issued its memo to eligible employees, the Employer communicated the possibility that it might, in limited, but largely undefined circumstances, accept an offer by employees to voluntarily exit the OPS in return for an enhanced severance package. Nothing crystallised as a binding term of the employment contract, however, until the offer was accepted by the Employer. Indeed, there was no unequivocal offer by the employee before then; employees remained free to withdraw their application at any point before it was accepted. This further reinforces my conclusion that a new, legally enforceable term of the contract is only created when the Employer accepts an employee’s offer.

34While the Board has previously determined that the phrase ‘working condition or term of employment’ should be accorded a broad and liberal interpretation: Kanga, supra. The PSGB has distinguished between existing and new terms and conditions of employment and relied on that distinction as a central consideration in analysing whether it has jurisdiction to hear a complaint. As reviewed in further detail in the cases excerpts that follow, it has consistently held that:

a. It can only intervene where there is an alleged breach or violation of an existing term or condition of employment; and

b. It does not have jurisdiction where there is only a general allegation of unfairness or where the claim seeks the imposition of a new term or condition.

35In Ransome, supra, the complainant took issue with his wage rate, which was less than those promoted after him. The Board concluded that, while unfortunate, this disparity did not constitute a breach of any term or condition of the complainant’s employment. Vice Chair O’Neil concluded as follows, at p. 7:

Especially in the managerial setting, where contracts of employment are not collective, but individual, it is not enough to say that it is fair or would be more fair if a grievor was paid more, or not less than some other employee. In order to succeed, a grievance must show that the difference is improper, either because it offends a specific term or condition of employment, or some more general principle of law. … What he argues is that there should be a term or condition of his employment that would ensure he was paid better than those promoted or hired later. This is a complaint about the absence of a term or condition of employment of the kind he would like, rather than a request to remedy a breach of an identifiable existing term or condition of his employment. The facts before me simply do not form a sufficient basis for such an argument to succeed. What the grievor is claiming would be tantamount to creating a term or condition of employment, rather than awarding a remedy for the breach of an existing term or condition of employment.

36Similarly, in Garratt, supra, a group of nurses complained of salary and benefit disparities between their classification and that of the Registered Nurses that reported to them. The Board found that although the phrase ‘working condition or term of employment’ was to be given a broad and liberal interpretation in accordance with the decision in Kanga, supra, it does not give the Board the authority to set the terms and conditions of manager’s employment or offer its opinion of whether the contract is ‘fair’.

37Finally, in MacDonald et al., supra, the Board dealt with complaints regarding the rate of pay for Operational Managers in a correctional facility. The complainants requested that they be placed at a top level of the pay grid and granted a 14% additional increase to their base rate of pay. The employer raised a preliminary objection, arguing that there was no breach of a term or condition of employment. The Board reviewed previous decisions of the Board and determined that there was no evidence of any “policy, legislation, practice or other term or condition of employment that was in force at the time of the complaints which provides for the complainants to be paid in the manner they seek.” The Board concluded, at p.5, that:

As noted in earlier decisions of this Board, in order for the Board to be able to award a remedy to a complainant, there must first be an existing term or condition of employment related to the facts complained of, something that is part of the complainant’s contract of employment. This is something more than the belief that something is unfair, no matter how deeply held. Secondly, there must be a breach of that term or condition of employment, and thirdly, there must be a link between that breach and a remedy that the Board is empowered to give.

38If the VEP was not an existing term of their contract, the complainants suggested that the Employer established a policy or directive that became a working condition when it announced the VEP. I do not agree. Although the Board has taken jurisdiction over complaints that allege that the employer has not properly applied its own policies and directives, it has only done so where there was evidence that a clearly articulated policy, committed to by the Employer, has been breached.

39In Scott, supra, at p. 24, Vice Chair Lynk determined that “an employment policy introduced by the employer became a ‘working condition or term of employment’ when it was intended as an employment commitment and is generally applied as such.” He went on to conclude that the policy at issue in that case was introduced as a commitment not to do certain things, that the employer had applied the policy since it was introduced and had not formally withdrawn or altered it. The Vice Chair further noted that counsel for the Ministry did not challenge the grievor’s characterisation of the policy as a working condition or term of employment and, in those circumstances, he accepted it as such.

40Having considered the submissions of the parties and the only document from which a policy could be derived, I am not persuaded that the Employer intended to introduce a policy or directive that bound them to a specific process by which the VEP would be decided and communicated. It certainly did not articulate the kind of process that the complainants are seeking. When it announced the VEP, the Employer made virtually no commitment, beyond reviewing applications to consider whether an employee’s departure would support the transformation of the OPS. It reserved for itself the sole discretion to approve all applications, setting out a very broad and largely undefined basis upon which it would make that decision. Nor did it commit to communicating with applicants, beyond advising them if their application was successful.

41Even if I were to generally accept that the VEP was a policy over which the Board had jurisdiction, this is ultimately a complaint about what was not included. The complainants have not identified any specific breaches of the policy or said that the Employer failed to honour commitments that it made to them. The focus of the complainants’ concern is that the Employer failed to do more than it promised: it did not lay out defined criteria for the exercise of its discretion or provide transparency in the decision-making process by providing reasons.

42Nor is there any other established policy or practice, statute or regulation that codifies the elements of the VEP that the complainants allege have been improperly applied. The Employer conceded that the Board would have jurisdiction to review implementation of the VEP once an application was approved and has jurisdiction to review alleged breaches of the Human Rights Code. However, there is no existing term or condition of employment that entitles the complainants to an approval process that includes disclosure of the criteria or reasons for the Employer’s decision.

43Counsel for one group of intervenors raised the argument that it was always a term or condition of employment in the Public Service that employees will be treated fairly, in good faith and without discrimination or caprice; no cases were cited to support this assertion. Having reviewed all of the cases that were submitted to me, I cannot find any suggestion that there is a general duty of fairness owed to employees in all circumstances. In my view, that would be inconsistent with the clear limitations set out in PSOA and the jurisprudence of this Board.

44The Board has held that a duty of fairness arises in very specific circumstances. For example, in Cardoza, supra, the Board followed earlier cases that determined that the employer had a duty to treat a complainant fairly where they were accused of a serious breach of the Human Rights Code. However, it did not go so far as to find that there was a general duty to treat employees “fairly”, in the broad sense, or that it had a duty to respond to all inquiries in a timely manner.

45Nor, in my view, does Harris et al, supra, stand for the proposition that ‘fairness’ required the employer to respond to Mr. Tighe’s inquiries. The Board in Harris found that the employer had directly communicated with the grievor to advise him that his rate of pay would be adjusted. In that circumstance, the Vice Chair determined that the new rate of pay had arguably become a term and condition of employment and that the Board therefore had jurisdiction to hear the complaint. The Board did not find that there was a stand-alone entitlement to a response from the employer.

46Mr. Tighe pointed out that he was not in a position to know whether the Employer’s decision was fair or arbitrary because he had not been provided with adequate disclosure of the reason for his denial. The issue of lack of transparency and inability to determine whether the employer acted in bad faith was previously addressed by the Board in Garratt, supra. While understandably frustrating for the Complainant, I agree with the following statement, at p. 11, made by, then, Vice Chair O’Neil that this does not, in itself, confer jurisdiction on the Board if it does not relate to an existing term or condition of employment:

… the nub of the problem is the perceived lack of transparency and disclosure as to the mechanism and rationale for the establishment of managerial compensation. In the absence of knowledge of what is transpiring about pay and compensation issues, the grievors are left wondering if there has been bad faith or not. These concerns appear inseparable from the portion of the grievance which asks for the development of a mechanism which provides for a fair and equitable means to assess and communicate managerial wages and benefits. Although the Board can readily understand the grievors’ desire to have a more transparent process, this latter element appears to be limited to dissatisfaction with the current method of setting and communicating wages, leading to a request that the Board establish a new process for setting and communicating wages. This portion of the grievance is beyond the jurisdiction of the Board as is it is seeking the establishment of new terms and conditions of employment, rather than the enforcement of existing ones. If the allegation were that there already was a term or condition of employment providing a process for setting and communicating wages that had not been applied to the grievors, or had been applied in bad faith, that would be another matter.

47This is not to say that the complainants’ concerns are intemperate. I fully understand their concerns. They were advised that their employer was offering an enhanced severance plan but they were never told what criteria would be used to determine who would be approved. Nor have they been provided a detailed explanation that would allow them to understand what factors were considered when the Employer decided to deny their request. Nonetheless, the terms of the legislation that governs the Board’s jurisdiction only permits us to review complaints regarding certain matters. The Board has long interpreted these provisions as extending to a review of existing terms or conditions of employment. In keeping with a long line of cases issued by the Board, I have determined that this does not include jurisdiction over prospective terms or conditions.

48My conclusion is also consistent with the Board’s limited remedial authority. The PSGB cannot create a new term or condition of employment, including those that alter compensation or eliminate positions. Ultimately, that is what is being sought in this case. I agree with the submission of the Employer that even if the Board assumed jurisdiction over the fairness of the process, it does not have the ability to approve a VEP request. That would involve setting new terms of compensation and require the elimination of the departing employee’s position. Many of the complainants have retired and are no longer the incumbents in the positions that would be eliminated. For those that have remained in the OPS, the Board would still be amending the terms of their existing contract.

49I have also considered whether the decision of the Supreme Court of Canada in Bhasin and Hrynew, supra, in any way alters the Board’s previously decided cases that it only has jurisdiction to hear cases alleging a violation of an existing term or condition of employment, but cannot hear cases relying solely on a general claim of unfair treatment.

50The primary question that the Court addressed in Bhasin was whether “Canadian common law imposes a duty on parties to perform their contractual obligations honestly?” It answered that question in the affirmative and recognized that good faith contractual performance is a general organizing principle of the common law of contracts. The Court further confirmed that there was a general expectation that parties “perform their contractual duties honestly and reasonably and not capriciously or arbitrarily.” The Court cautioned, however, that there were limits to this duty:

“there was a general duty of honesty in contractual performance. This means simply that parties must not lie or knowingly mislead each other about matters directly linked to the performance of the contract. This does not impose a duty of loyalty or of disclosure or require a party to forego advantages flowing from the contract; it is simply a requirement not to lie or mislead the other party about one’s contractual performance.” (para 73)

51In arriving at its conclusion, the Court in Bhasin affirmed its previous findings in Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362 where it had already determined that there was a duty of good faith in the employment context. The Court noted, however, that the duty imposed on the employer in Keays, was “not to engage in conduct that is ‘unfair or is in bad faith by being, for example, untruthful, misleading, or unduly insensitive’ when dismissing an employee … Good faith in this context did not extend to the employer’s reasons for terminating the contract of employment because this would undermine the right of an employer to determine the composition of its workforce”.

52I have decided that the Bhasin decision does not expand the Board’s jurisdiction, primarily for three reasons. First, the limitation on the Board’s jurisdiction to circumstances where there is a complaint about a ‘working condition or term of employment’ is a statutory condition precedent embedded in our enabling statute. The PSGB can only hear cases that are assigned to it under PSOA, which, for the purposes of this case, is what restricts the Board to cases that engage a working condition or term of employment. Although the Board is required to interpret the scope of our authority, we do not have any inherent jurisdiction or capacity to enlarge it. Nothing in Bhasin suggests that there is a free-standing condition or term of employment that would permit review of the Employer’s decision in this case.

53Second, I am satisfied that the principle enunciated in Bhasin, at least at this stage of the evolution of the law of contract, is restricted to the manner in which terms of an existing contract are fulfilled; it has not yet been extended to “contracting” per se to include all aspects of the relationship between contracting parties, such as negotiations for new or amended terms of the contract. The Court was clear that, although the reasonable expectations of the parties were to be considered, the general principles were to be applied after the contract was formed, with respect to the performance of the established contract. It did not extend to negotiations or consideration of prospective terms.

54Third, the focus of the Court in Bhasin was on honest performance of the contract and ensuring that parties to a contract did not lie or mislead one another. None of the complainants in this case suggest that the Employer lied or mislead them. Nor do they suggest that the Employer withheld information that they relied upon when they decided to request VEP or leave the OPS. They are merely seeking information related to the decision-making process so that they can understand why the Employer denied their requests. Although perfectly understandable, there is nothing in the existing terms of their contract, the VEP announcement or the principles set out in Bhasin that entitles them to that information. Nothing in the caselaw or the commitments made by the Employer requires that it reply to the request for information. The employer cannot lie or mislead if they do provide an answer to an employee’s request for information, but they are under no obligation to respond.

55For all of these reasons, I have found that the Board does not have jurisdiction to hear complaints about the Employer’s denial of VEP, except on the narrow basis that the denial was in contravention of the Ontario Human Rights Code or some other legislation. The Employer’s preliminary motion is allowed and Mr. Tighe’s complaint is dismissed.

56With respect to the other outstanding complaints, Ms. McDougall and Ms. Dermott, Beach, Martin and Dolezel have all alleged discrimination, on various prohibited grounds under the Ontario Human rights Code, and those aspects of their complaints will proceed in the normal course. They can also address the Board at that time on any other aspect of their complaint, in light of this decision.

57The Berezowski and Mezzera groups did not allege Code based discrimination and are directed to contact the Board to advise whether they intend to proceed with their complaints in light of this decision.