PSGB# 2021-0362

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Bazger

Complainant

• and –

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

Employer

BEFORE

Brian Smeenk

Chair

FOR THE COMPLAINANT

Hamza Bazger

FOR THE EMPLOYER

Maria-Kristina Ascenzi Treasury Board Secretariat Legal Services Branch Counsel

WRITTEN SUBMISSIONS

Employer: July 12, 2021 Complainant: July 18, 2021 Employer’s Reply: July 26, 2021

Decision

1Hamza Bazger was given notice of a 5-day disciplinary suspension by letter dated February 26, 2021. He works as a Sergeant at the Employer’s Toronto South Detention Centre. He challenges the propriety of the suspension on several grounds, seeking “full redress”. He filed this Complaint with the Board on May 19, 2021.

2The Employer takes the preliminary position that the Board does not have jurisdiction to hear Mr. Bazger’s complaint. It says the Complaint was not filed within the mandatory 14-day window following the expiry of the dispute resolution period under Ontario Regulation 378/07 (“the Regulation”) under the Public Service of Ontario Act, 2006 (“the PSOA”). Mr. Bazger disagrees. He says that even though his Complaint was filed after that 14-day window, it should still be heard by the Board because the provincial government had declared a state of emergency due to Covid-19. He adds that the issues raised in his complaint “are controversial enough that they ought to be decided at a full hearing,” and not by way of a decision on a preliminary objection.

3The issue before the Board is thus whether the Board has the discretion, in these circumstances, to extend or relieve against the requirement to file a complaint within 14 days following the expiry of the dispute resolution period. What if any effect do the relevant provincial regulations in relation to the Covid-19 pandemic have in this case?

4For the reasons that follow, I have concluded that the Board does not have jurisdiction to hear this Complaint because it was filed outside of the mandatory 14-day window for the filing of the Complaint. The Board does not have the power to extend the time limit for the filing of the complaint in the circumstances of this case, despite the Province’s various state of emergency regulations. The Complaint must therefore be dismissed as untimely.

Background

5The relevant facts for the purpose of this ruling are not in dispute. By letter dated February 26, 2021, Mr. Bazger was given notice of a 5-day disciplinary suspension. On March 15, 2021, he provided a notice of intent to file a complaint with this Board, addressed to his deputy minister. In it, he challenged the propriety of the suspension on several grounds. On March 30, Mr. Bazger met via teleconference to discuss his complaint with Tanya Frankovich, Deputy Regional Director, Toronto Region - Institutional Services, and others. Ms. Frankovich was the deputy minister’s designee for these purposes. Following that meeting, by letter dated April 12, 2021, Ms. Frankovich advised Mr. Bazger that his complaint was denied. The same letter reminds him that, “you are obligated to follow the provisions of the PSOA and O. Reg 378/07 to maintain timelines for filing to the Public Service Grievance Board (PSGB). Should this matter move forward, the employer reserves the right to raise and rely on any preliminary objections.” On May 19, 2021, Mr. Bazger filed his Form 1 Application with the Board.

The Timelines Under the Regulation and Their Effect

6There is also no dispute about the basic framework of the timelines for complaints and the dispute resolution process under the Regulation. The jurisdiction of the Board to consider complaints about disciplinary measures other than dismissals starts with section 3(1) of the Regulation, which provides:

3. (1) A public servant who is aggrieved by the imposition of a disciplinary measure under section 34 of the Act, other than dismissal for cause, may file a complaint about the disciplinary measure with the Public Service Grievance Board,

(a) if the public servant is eligible under section 5 to file such a complaint;

(b) if the public servant gives notice in accordance with section 8 of his or her proposal to file the complaint; and

(c) if the public servant complies with the filing requirements set out in section 10. [emphasis added]

7Section 8(4) of the Regulation provides that a complainant in Mr. Bazger’s position must give notice of his complaint to his deputy minister within fourteen (14) days of receiving the notice of discipline. No issue has been raised in this regard.

8Following the notice, there is a dispute resolution period. Section 9(1) of the Regulation provides that one “is not entitled to file a complaint” with the Board until expiry of that period as defined under the section. Since the deputy minister’s designee met with Mr. Bazger and gave him a notice of the decision after the meeting, the relevant dispute resolution period is that described in Section 9(3) of the Regulation. It provides:

(3) If the complainant was required to give a deputy minister notice of the proposal to make the 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. [emphasis added]

9A complainant may then file a complaint with the Board in compliance with the filing requirements set out in section 10. It provides:

10. (1) Within 14 days after the expiry of the period, if any, provided for dispute resolution under section 9, the complainant may file the complaint with the Public Service Grievance Board by delivering it to the chair of the Board. [emphasis added]

10This is what I have referred to as the mandatory 14-day window for the filing of the Complaint.

Submissions

11The Employer submits that the complaint was filed with the Board after the closing of the mandatory 14-day window for the filing of the Complaint. Applying Section 9(3)(b) of the Regulation, the dispute resolution period ended April 12, 2021, the date the deputy minister’s designee advised Mr. Bazger that his complaint was denied. It is argued that Mr. Bazger was required to file his complaint with the Board within 14 days of that, making the deadline April 26, 2021. Instead, Mr. Bazger filed his complaint on May 19, 2021.

12The Employer further argues that compliance with 14-day window in section 10 is a mandatory pre-condition that must be satisfied for a public servant to be able to file a complaint with the Board. It argues that compliance is a pre-condition to the Board’s having jurisdiction. It is asserted that the Board has consistently held that the timelines in the Regulation are mandatory and the Board does not have jurisdiction to expand them. It cites the Board’s previous decisions in Bourgeault v Ontario (Community Safety and Correctional Services), 2013 CanLII 84294 (O’Neil) at para. 28; St Amant v Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4673 (Carter) at para. 10; Doyle v Ontario (Ministry of Municipal Affairs), 2017 CanLII 52705 (O’Neil) at para. 21; Laforest v Ontario (Solicitor General), 2020 CanLII 10543 (Morgan) at para. 46 and Beach v Ontario (Solicitor General), 2020 CanLII 74281.

13The Employer concludes that, as this complaint was filed with the Board on May 19, 2021, it is untimely and the Board has no jurisdiction to hear it.

14The Employer then addresses Mr. Bazger’s argument that the state of emergency arising from the Covid-19 pandemic allows the Board to extend the timelines under the Regulation. It argues that the regulation that would have allowed such extensions, and the Board’s decisions that applied it, do not apply to the facts of this case.

15The Employer addresses the Board’s prior decisions in Breslin v. Ontario (Solicitor General) 2021 CanLII 37121 (Kuttner) and Maiwand v. Ontario (Solicitor General) 2021 CanLII 57993 (Kuttner). In Breslin, the Board decided that Ont. Regulation 73/20 under the Emergency Management and Civil Protection Act. R.S.O. 1990, c. E-9 (the “Emergency Act”), had the effect that “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” (at para. 12). The Board in that case exercised the discretion it found it had, so as to extend by two days the 14-day window for the giving of notice to the deputy minister of the complainant’s intention to file a dispute. In Maiwand, the Board applied the same regulation and exercised its discretion to extend the 30 day dispute resolution period. The Employer points out that Regulation 73/20 was revoked on September 20, 2020, before the events that gave rise to Mr. Breslin’s complaint. Therefore, the Board’s decisions in Bazger and Maiwand are distinguishable and inapplicable to the facts before us. It is argued that the Board no longer has the discretion to extend time limits as it did in those cases.

16Mr. Bazger relies on the Breslin decision. In addition, he relies on the fact that on April 1, 2021, the Ontario government imposed something it called a “Provincewide Emergency Brake,” as a result of “an alarming surge in case numbers and COVID-19 hospitalizations.” That was followed on April 7 with a “provincial emergency and stay-at-home order.” He argues that Breslin cannot be distinguished since Ontario was “under the Emergency Order” at the relevant time, citing Section 7.01(1) of the Emergency Act. Mr. Bazger adds that the issues raised in his complaint, “are controversial enough that they ought to be decided at a full hearing.”

17The Employer argues in reply that the Provincial Emergency and Stay-at-Home Order did not have the effect of extending timelines under the Regulation under the PSOA. Regulation 73/20 under the Emergency Act was revoked on September 20, 2020 and Mr. Bazger has not pointed to another regulation that similarly extended time limits applicable to the filing his complaint.

Analysis and Decision

18This case requires me to decide whether the otherwise mandatory 14-day window in section 10 of our Regulation under the PSOA for the filing of Mr. Bazger’s complaint with the Board, could be extended because of the circumstances in Ontario related to the Covid-19 pandemic. Are the Board’s decisions in Breslin and Maiwand applicable to this case? Or can Mr. Bazger rely on the subsequent “Emergency Brake” and “Provincial Emergency and Stay-at-home Order” to similar effect?

19Section 7.01 of the Emergency Act allows the Lieutenant Governor in Council or Premier to declare a state of emergency and contains criteria for when this may done. It provides in part as follows:

Declaration of emergency

7.0.1 (1) Subject to subsection (3), the Lieutenant Governor in Council or the Premier, if in the Premier’s opinion the urgency of the situation requires that an order be made immediately, may by order declare that an emergency exists throughout Ontario or in any part of Ontario.

20Regulation 73/20 was enacted under the Emergency Act. It dealt with the extension of legal time limits for various purposes, during the Covid-related state of emergency. The Board explained its implications in Breslin. The Board found that, “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.” The decision set forth various factors that ought to be taken into account in the exercise of such discretion. It applied that discretion, finding it appropriate to extend the normally mandatory time limit at issue, by two days, The Board stated:

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.

21In Maiwand, the Board applied the same regulation and exercised its discretion to extend the 30 day dispute resolution period that operated while Regulation 73/20 was in effect.

22Later, however, Regulation 73/20, was revoked effective September 14, 2020. This was done by Ont. Regulation 457/20 under the The Reopening Ontario Act 2020, S.O 2020, c. 17.

23The Ontario Superior Court recently explained the implications of this regulatory history for what it labelled “Covid-Adjusted Limitation Periods” in civil actions. In McAuley v. Canada Post Corporation, 2021 ONSC 4528, the court held as follows:

42… the effect of Reg. 73/20, was to extend any running limitation periods by 183 days…

43…It appears clear to me that any limitation period that otherwise would have run between March 16, 2020 and September 14, 2020 was suspended during that period. Those days do not get counted in the calculation of the limitation period.

24While McAuley deals with limitation periods in civil actions as opposed to timelines in a regulatory dispute resolution process, its import for present purposes is that clarifies that Regulation 73/20 has no effect to timelines or limitation periods that run after September 14, 2020. Regulation 73/20 is therefore of no assistance to Mr. Bazger here, since his complaint arose after that date. Therefore, the Breslin and Maiwand cases that applied that regulation also do not assist him.

25The Provincial Emergency Stay-At-Home Order referenced by Mr. Bazger appears to be a reference to Ont. Regulation 265/21, which is entitled “Stay-At-Home Order”. It was enacted under the Emergency Act. As the title of this regulation suggests, it ordered various categories of individuals to stay at home. It also specified who could venture out and for what purposes. It was in effect from April 7 to June 2, 2021. Nothing in it affects any timelines for legal proceedings, such as those that apply here.

26Mr. Bazger also relied on the Province’s April 1, 2021 announcement of a “Provincewide Emergency Brake.” However he has not pointed to and I have am not aware of any additional regulation relating to legal timelines that followed from that announcement, apart from those discussed above.

27What this means for Mr. Bazger, is that there was no longer any regulation or legislation in effect that would modify the mandatory nature of the 14-day window within which he was obliged to file his complaint with the Board. This leaves the Board with no discretion to extend the time lines, regardless of the validity, importance or controversial nature of his complaint.

28The implications of such a ruling based on the Regulation’s strict time limits have been commented on frequently by the Board. For example, the Board’s comments in Bourgeault, above, at para. 28 are applicable here:

The Board has accepted in St. Amant v. Ontario (Ministry of Community Safety and Correctional Services), a decision dated January 31, 2013, now reported at 2013 CanLII 4673 (ON PSGB), citing other decisions to similar effect, that the current wording of the regulation means that compliance with the procedural steps and time limits set out in the regulation is a precondition to the Board’s assuming jurisdiction over a case. Further, the Board found that it has no power to relieve against or extend those time limits, given the removal of that power from the wording of the current regulation. This is consistent with the case of Service Employees International Union, Local 204 v. Leisureworld Nursing Homes Ltd., [1997] O.J. No. 1469, 99 O.A.C. (Divisional Court), affirmed by the Court of Appeal with brief reasons reported at [1997] O.J. No. 4815, 75 A.C.W.S. (3d) 854 (Ont. C. A.).

29And in Telford v Ontario (Finance), P-2015-1619, 2016 CanLII 36364 (O’Neil), which is quoted in Doyle v Ontario (Ministry of Municipal Affairs), referenced above, at para. 31 the Board observed:

This lack of power to relieve against the time limits means that the reasons for not meeting the time lines, however reasonable or sympathetic, are not matters that the Board can rely on to extend the time lines.

30For the above reasons the Employer’s preliminary objection is upheld, and the Complaint is dismissed as untimely.