PSGB# 2020-1709

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Breslin

Complainant

• and –

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

Employer

BEFORE

Thomas Kuttner, Q.C.

Vice Chair

FOR THE COMPLAINANT

Michael Breslin

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

April 21, 2021

Decision

1This is a complaint filed on July 15, 2020, pursuant to subsection 4(1) of O Reg 378/07 (“the Regulation”) under the Public Service of Ontario Act, 2006, SO 2006 c.35, Sch A, (“the Act”). In it, the Complainant, Michael Breslin, a Unit Sergeant at the Central North Correction Centre in Penetanguishene ON (“CNCC"), alleges that the Employer, by letter dated June 29, 2020 did suspend him for seven (7) days (56 hours) without just cause. By way of relief, Mr. Breslin in his Form 1 Application seeks i.) the return of the seven days pay in full and removal of any notice of suspension from his personnel file; ii) pay of 33.2 hours at the overtime rate for lost overtime opportunities; and iii) reassignment to the Admitting and Discharge Unit at CNCC.

2At the hearing of this matter by video-conference on April 21, 2021, Ms. Cohen, counsel for the Employer, made a preliminary objection that the Board was without jurisdiction to hear this matter on the merits, inasmuch as the Complainant had failed to file notice of his proposal to file a complaint with the Board, to the Deputy Minister in a timely manner as required by subsection 8(4).2 of the Regulation. This decision addresses only that preliminary objection, and not the complaint on the merits.

Background

3As noted, Mr. Breslin was suspended for seven (7) days by letter dated June 25, 2020 under the hand of Jeff Downard, the Deputy Superintendent Administration at CNCC, the suspension to be of immediate effect. The grounds were insubordination and unprofessionalism in performance of his duties in the Admitting and Discharge Unit. On July 10, 2020, Mr. Breslin sent an e-mail to Mr. Downard, advising of his intention to file a grievance with the Board with respect to the suspension, and that he would file the necessary paperwork upon his return to his duties on July 15th.

4On his return to work on July 15, 2020, Mr. Breslin sent an e-mail to the Deputy Minister, Ms. Deborah Richardson, informing her of his intention to file a grievance with the Board pertaining to the seven (7) day suspension imposed on June 29th. In it he referenced his earlier e-mail of July 10th to Mr. Downard, but acknowledged that “today is the sixteenth day, two over the 14 day filing period”. By way of explanation he advised that July 15th was his first day back on shift. On the same day, July 15, 2020 Mr. Breslin filed the within Complaint with the Board.

Submissions

5For the Employer, counsel submitted that the complainant failed to comply with the 14-day time line stipulated at subsection 8 (4).2 for the filing of a notice of proposal with the Deputy Minister to file a complaint, i.e. fourteen days from receipt of the notice of suspension on June 29, 2020. He himself acknowledged that his notice of proposal was two (2) days over the fourteen day period prescribed by the Regulation. The fact that he was not at work between June 19th and July 14th in no way made him completely incapable of filing the notice of proposal within the required time.

6In support of her submission that in the circumstances the Board is without jurisdiction to entertain the within complaint, counsel referenced three decisions of the Board: St. Amant, 2013 CanLII 4673 (ON PSGB); Bourgeault et al, 2013 CanLII 84294 (ON PSGB) and Strong v Ontario (Children and Youth Services), 2016 CanLII 89880 (ON PSGB).

7The Complainant pleaded as the explanation of his failure to file a notice of proposal to the Deputy Minister, his lack of knowledge of the Regulation, coupled with his understanding that his e-mail notice to Mr. Downard of July 10, 2020, would be forwarded on through the chain of command to the Deputy Minister.

Decision

8The relevant provisions of the Regulation stipulate:

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

1. A complainant who, at the material time, worked in a ministry shall give 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.

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

(3) If the complainant was required to give the deputy minister notice of the proposal to make a complaint, and if the deputy or his or her delegate meets with the complainant within thirty 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.

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.

9Since enactment of the Regulation in 1996, the Board has commented often on the mandatory time provisions for the process of filing a complaint before it about a term or condition of employment, a disciplinary measure or dismissal for cause. Failure to comply with the mandatory time provisions goes to the jurisdiction of the Board, which cannot in those circumstances entertain the complaint on its merits. In his decision in St. Amant supra, the then Chair of the Board, Donald Carter wrote:

10The language used to prescribe time limits in the new Regulation 378/07, however, is significantly different and leaves no doubt as to its mandatory nature. This choice of mandatory language can lead to no other conclusion than that compliance with these time limits is a precondition to the PSGB assuming jurisdiction over a matter. Given the mandatory nature of these time limits and the lack of any express statutory authority to relieve against these mandatory time limits, the Board must conclude that it has no power to alter the jurisdictional consequences of a failure to comply with the 14 day time limit. It is for this reason that this complaint must be dismissed. This conclusion is in no way a reflection on the merits of the complaint itself but merely a determination that the Public Service Grievance Board, as a tribunal created by statutory enactments, can only stay within the limits of these enactments. [at paragraph 10].

10In Strong supra, a case on all fours with that before me, the Complainant submitted that the fourteen day period for notice of proposal to be given to the Deputy Minister should only commence upon his return to work following a suspension, as he understood that he was to have no contact with the Ministry during the period of his suspension. In rejecting that argument, Vice-Chair Devins wrote:

10In this case, the Complainant was advised on December 19, 2014 that the Employer determined that his actions had given rise to just cause for discipline and that he was being suspended without pay for 20 days. Notice to complain about his suspension had to be filed with the Deputy Minister within 14 days of December 19, 2014 to meet the requirements of s. 8(4) 2. By filing his intention to challenge his suspension on February 8, 2016, after he returned to work, the Complainant clearly failed to satisfy the mandatory timeframe set out in the Regulations.

11While I appreciate that it was easier for the Complainant to advise the Deputy Minister of his intention to complain about his suspension once he returned to work, the Regulation is very specific about when the time limits start: the notice must be given “within 14 days after the complainant receives notice of the imposition of the disciplinary measure”. There is no ambiguity in this provision and I have no discretion to allow for a later filing date.

12I therefore find that the Complainant did not give notice of his intention to file a complaint within the timeframe required under s. 8(4) 2 of the Regulation and I consequently do not have jurisdiction to hear this complaint. The Employer’s motion is allowed and the complaint is dismissed.

11So too, here, in ordinary times, I would have to conclude that I have no jurisdiction to entertain the within complaint. But these are not ordinary times. Rather, the Covid 19 pandemic confronts us with extraordinary challenges. In response, the Cabinet has enacted O Reg 73/20 under the Emergency Management and Civil Protection Act, S.O., RSO 1990 c. E-9, the terms of which provide in full as follows:

Whereas an emergency has been declared pursuant to Order in Council 518/2020 (Ontario Regulation 50/20 on March 17, 2020 at 7:30 a.m. Toronto time pursuant to section 7.0.1 of the Emergency Management and Civil Protection Act (the “Act”);

And Whereas the criteria set out in subsection 7.1 (2) of the Act have been satisfied;

Now Therefore, an Order is made pursuant to subsection 7.1 (2) of the Act, the terms of which Order are the following:

1. Any provision of any statute, regulation, rule, by-law or order of the Government of Ontario establishing any limitation period shall be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 16, 2020

2. Any provision of any statute, regulation, by-law or order of the Government of Ontario establishing any period of time within which any step must be taken an any proceeding in Ontario, including any intended proceeding, shall, subject to the discretion of the court, tribunal or other decision-maker responsible for the proceeding, be suspended for the duration of the emergency, and the suspension shall be retroactive to Monday, March 16, 2020.

The duration of this Order is subject to any renewal required under subsection 7.1(4) and, if applicable, 7.1 (5) of the Act.

The Order was renewed for 90 days by OReg 258/20 issued June 5, 2020, the effect of which is to decouple the provisions of OReg 73/20 from the state of emergency.

12In light of subparagraph 2 of Regulation 73/20, the hitherto mandatory time periods during which steps had to be taken in the processing of a complaint before the Board, were suspended, subject to the discretion of the Board. In exercising its discretion the Board should take into account:

• the objective of expeditious resolution of complaints from managerial employees as to terms and conditions of employment, or as here disciplinary action;

• the reasonableness of the extension of the time period implicitly sought by the complainant;

• the prejudice, if any, suffered by the Employer should such extension of time be granted.

13In all of the circumstances of the within case, taking into account the aforementioned considerations, I conclude that extending the fourteen day period by two days for the giving of notice to the Deputy Minister of the Complainant’s intention to file a complaint with the Board, accords with the objective of OReg 378/07 for the expeditious resolution of complaints as to terms and conditions of employment, or disciplinary action. The filing of the Complaint two days late falls within a reasonable period of time for the extension of time sought, and the granting of the extension of time causes no prejudice to the Employer, which can still defend its position on the merits of the case.

14There was a domino effect on the entire complaint process in the giving of notice to the Deputy Minister by the complainant two days in excess of the fourteen-day period required by subsection 8(4).2 of the OReg 378/07. There is no evidence before me that any period for dispute resolution under section 9 of the Regulation ever took place, and the thirty-day period for engaging in such dispute resolution has long expired. It should have commenced on July 15, 2020 and would have expired on August 14th. In like manner, the time for filing the complaint with the Board – within fourteen days of the expiry of the period for dispute resolution, in this case by August 28, 2020 — has also long expired.

15Given that the Employer has already filed its Form 2 Response to the Complainant’s form 1 complaint, in which it submits that the complaint be dismissed on the merits, it would seem otiose to remit the matter back now to allow thirty days for dispute resolution from today’s date, only to have the Complainant refile his complaint before the Board fourteen days following that process. Such would not be in keeping with the expeditious resolution of this complaint. Rather, both parties having indicated that they wish the matter to proceed on the merits by way of mediation/arbitration, I suspend the fourteen-day period for the filing of the complaint before the Board, and consider nunc pro tunc that the complaint as filed on July 15, 2020 was filed in accordance with Section 10 of the Regulation.

16The Employer’s preliminary objection to the jurisdiction of the Board to entertain this matter on the merits is dismissed. The matter is remitted to the Registrar to schedule its hearing on the merits by way of mediation/arbitration.