PSGB# P-2019-1469

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Beach

Complainant

• and -

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

Employer

BEFORE

Kathleen G. O’Neil

Chair

FOR THE COMPLAINANT

Dawne Beach

FOR THE EMPLOYER SUBMISSIONS

Daria Vodova Treasury Board Secretariat Legal Services Branch Counsel Written submissions completed March 12, 2020

Decision

1This decision deals with a preliminary objection to a complaint filed by Dawne Beach contesting an 8-hour suspension. The employer’s position is that the matter should not proceed to a hearing on the merits as the complaint was not filed in accordance with the mandatory time lines set out in Regulation 378/07, as it was too late. The complainant takes the contrary view.

Overview

2The parties agreed to present their arguments by written submissions on the basis of the facts disclosed by the documentary record. There did not appear to be any dispute as to the underlying facts necessary to this decision, but the parties do not agree about the legal conclusions to be drawn from them.

3A notice of suspension was sent to the complainant by email on July 15, 2019.

4The complainant provided her Notice of Intention to file a complaint to the Deputy Minister on July 27, 2019. A meeting with the deputy Minister’s delegate was held on August 16, 2019 via teleconference, following which a decision dismissing the complaint was issued on August 20, 2019 by email to her work email address, which she had provided in her complaint. However, she was not working on August 20, or until August 23, when she read the notice of the employer’s decision.

5This complaint was filed with the Board on September 12, 2019.

6The issue in dispute concerns the application of provisions of Regulation 378/07 under the Public Service of Ontario Act, the most relevant part of which reads as follows:

Notice of proposal to file a complaint

8. (1) A person who proposes to file a complaint shall give notice of the proposal to the following person or entity:

9. A complainant who, at the material time, worked in a ministry shall give the notice to his or her deputy minister.

(4) The notice must be given within the following period:

2. For a complaint about a disciplinary measure, within 14 days after the complainant receives notice of the imposition of the disciplinary measure.

Period for dispute resolution

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

(3) If the complainant was required to give a deputy minister notice of the proposal to make a complaint, and if the deputy minister or his or her delegate meets with the complainant within 30 days after the deputy minister receives the notice, the period provided for dispute resolution expires on the earlier of,

(a) the day that is 30 days after the meeting; or

(b) the day on which the deputy minister gives written notice to the complainant of his or her decision about the proposed complaint.

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

Filing a complaint

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.

(2) The complaint must set out the reasons for the complaint and must include the notice of the proposal, if any, to make the complaint and such other information and documents as the Board may specify.

The Parties’ Positions

7The employer takes the position that the PSGB is without jurisdiction to hear this complaint because the complaint was filed too late. The employer’s view of the facts is that the dispute resolution period expired on August 20, 2019, the day the written decision of the Deputy Minister was emailed to the complainant. In order to comply with section 10(1) of the above-noted regulation, the complainant needed to file her complaint with the PSGB within the following 14 days, or on or before September 10, 2019. Instead it was filed on September 12, 2019, two days later. In the employer’s view, since the time lines have consistently been held to be mandatory, the PSGB is without jurisdiction to hear the complaint on its merits, as it has no authority to extend the time limits.

8The Employer submits that the language in the Regulation with respect to this section is clear and unambiguous. It states that the dispute resolution expires when the written notice is given, not when it is received.

9Employer counsel refers to the following case law to support his position that the PSGB has no jurisdiction to hear untimely complaints: St Amant v Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4673; Doyle v Ontario (Ministry of Municipal Affairs, 2017 CanLII 52705 (ON PSGB); Morris et al v Ontario (Community Safety and Correctional Services), 2018 CanLll 109220; Laforest v Ontario (Ministry of the Solicitor General), 2020 CanLII 10543 (ON PSGB); Croisier v Ontario (Community Safety and Correctional Services), 2019 CanLII 56393 (ON PSGB); Telford v Ontario (Finance), 2016 CanLII 36364 (ON PSGB).

10By contrast, the complainant takes the position that the complaint is timely as she filed it within 14 days of receiving the decision from the Deputy Minister. The complainant takes issue with the employer’s conclusion as to when she was given the employer’s decision, and thus when the dispute resolution period expired. She agrees that the decision was issued on August 20, but argues that notice was not given until August 23, when she returned to work and received an email containing the deputy minister's decision. Thus, it is the complainant’s position that she had until September 13 to meet the 14-day time line in section 10(1). In her view, her filing of the complaint on September 12, 2019 was timely and the Board has the jurisdiction to hear it on its merits.

Considerations and conclusions

11The issue to be determined is when the deputy minister gave written notice to the complainant of his or her decision about the proposed complaint, as that determines the expiry of the dispute resolution period, and the start of the 14 days that the complainant has in which to file a timely complaint with the PSGB.

12The competing submissions in this case require a consideration of whether the date that notice was “given”, for the purposes of section 9(3) of the above-noted regulation, should be considered the date it was sent by the employer, or whether it should be the date it was “received”, in the sense of opened and read by the complainant. This is a case where there is no dispute about when the notice was sent, when it was in the complainant’s email at work, or when it was read. The dispute is how the words of the regulation should be applied to the undisputed facts.

13The complainant is of the view that notice is not given until she has received it and read it, while the employer’s position is essentially that once it was delivered to the complainant’s email, and was thus available to be read, written notice had been given.

14When reflecting on the appropriate resolution of this issue, it is clear that, in many circumstances, the only difference between the meaning of the words “given” and “received” is point of view, especially if the giving and receiving happen at the same moment. To use the example of a gift, from the point of view of the giver who is physically present with the recipient, a gift is given at the moment that it is handed to the recipient, who accepts and views it as received at the same moment. So, there is no necessary difference between the timing of giving and receiving.

15On the other hand, the regulation uses both words “given” and “received” in its various provisions describing when the dispute resolution period expires. For example, s. 9 (3) speaks of a meeting with the complainant within 30 days after the deputy minister receives the notice from the complainant. Then, the period provided for dispute resolution expires on the earlier of the day that is 30 days after the meeting; a phrase which gives no difficulty of interpretation, or the day on which the deputy minister gives written notice to the complainant of his or her decision. Since one of the accepted principles of statutory interpretation is that different words should normally be given different meaning, this word choice by the drafters can be taken as an indication that the “giving” and “receiving” may not necessarily be at the same time.

16For further context, I note that, in a case argued shortly before this one, Dixon vs. The Crown in Right of Ontario (Ministry of the Solicitor General), the employer took the position in respect of a case where it was in the position of the recipient of the notice [of intention to file a complaint], that the statute’s use of the word “given” should be interpreted as when the employer received it, rather than when the complainant sent it. The facts and the section of the regulation involved are different in the two cases, but many of the considerations are the same, and the objective must be a harmonious overall interpretation of the regulation, such that these two decisions are being released simultaneously.

17In this case, in contrast to Dixon, the employer argues that the Complainant's assertion that the dispute resolution period did not expire until she "received" the written notice is not consistent with the language set out in the Regulation, and would open up a world of uncertainty. The employer emphasizes that accepting the Complainant's position would mean that the dispute resolution period could end when the Complainant returns from a lengthy vacation or finally checks her email or opens a paper mail package. In the employer’s view, this is not consistent with the wording of the regulation which creates the date the written notice is given as the prescribed reference point for a timely filing with the Board.

18There is no indication in the regulation that its drafters turned their mind to the possibility of uncertainty about the date of giving or receiving notice. Nonetheless, as a matter of general principle, it is fair to infer that the drafters of the regulation would have intended that both parties would be in a position to determine with some degree of confidence when the dispute resolution period expires. It is, in each case, a question of fact. In this case, the employer sent the written decision by email, and there is no suggestion that the complainant was unable to determine when it arrived in her inbox, even if she did not access it until a few days later when she returned to work. Thus, this is not a case where there was a difference in the information available to the parties prior to the expiry of the dispute resolution period. Rather, the fact of when the Deputy Minister’s written decision was transmitted was equally available to both parties by consulting the email system.

19The accepted approach to the application of statutes by adjudicators is to apply the “modern principle” of statutory interpretation, that is, that the words of a statute must be read “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87, recently reaffirmed in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.

20The words of the regulation here in issue are found in section 9 (3) (b) and, in its most relevant part, provide that the dispute resolution period expires on "the day on which the deputy minister gives written notice to the complainant of his or her decision". When looking for the ordinary sense of these words in the context of the statutory scheme, it is notable that this particular part of the regulation focuses on the written notice. In a factual context where the parties were communicating in writing by email, applying the ordinary meaning of giving written notice is, in my view, more consistent with the employer's interpretation. The written notice was prepared and given on August 20, and sent to the work email address provided by the complainant. In the context of a regulation that provides narrow time lines for the giving of various notices during the dispute resolution period, I do not find the complainant's interpretation the preferable one, as it would make the length of the dispute resolution process dependent on the complainant’s personal schedule and habits of accessing email. I do not find this to be consistent with the regulation's emphasis on prescribed time limits, with no flexibility in the Board to relieve against them.

21Further, the reference point in s. 9(3) of the regulation as to when the notice of the decision is “given” may be usefully contrasted with the wording of s. 8(4)(2) of the regulation which also applies to the facts of this case. In that section, the reference point for when the complainant must give notice of a proposal to file a complaint is the date the complainant receives notice of the imposition of the disciplinary measure. The idea that different words are to be given different meanings supports the idea that the drafters intended the emphasis to be on the receipt of the notice of the discipline in s. 8(4)(2) but on the giving of notice in s. 9(3)(b).

22Although the above is, in the Board’s view, the best available interpretation of the words of the regulation, it is beyond doubt that it is not the only reasonably available interpretation. In such cases the Supreme Court, in the above noted cases, has given adjudicators unequivocal guidance to consider whether the effects on one party or the other of any given interpretation are absurd, overly harsh, or in conflict with other provisions of the statute. As in the Dixon matter, accepting the employer’s argument has the consequence that the complainant will not have access to the dispute resolution process designed by the legislature. However, in contrast to the facts of the Dixon case, in the facts of the complaint here in issue, there is no unevenness in access to the necessary information to compute the date notice was given. Further, in contrast to the present case, accepting the complainant’s position in the Dixon complaint did not create the same potential for uncertainty in leaving the prescribed time limits open-ended and subject to the complainant’s work schedule or timing of when the email was read, as opposed to when it was available to be read.

23Further, the acceptance of the complainant’s interpretation of the word “given” here would arguably be at odds with the Board’s interpretation of the same word in the same regulation in the Dixon matter. Consistency in the interpretation of the wording of the regulation is of considerable long-term value, and this is an additional element that supports the employer’s interpretation in this matter, but the complainant’s interpretation in the Dixon matter.

24In summary, the employer’s motion is accepted because the Board finds that notice of the Deputy Minister's written decision was given on August 20, 2019, the date it was sent and received in the complainant's inbox, and thus available to be read.

25For the reasons provided above, the complaint is dismissed as untimely.