PSGB# 2021-0288

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Preston

Complainant

• and –

The Crown in Right of Ontario (Ministry of Education)

Employer

BEFORE

Brian Smeenk

Chair

FOR THE COMPLAINANT

Ernest Coetzee & Emma Hrajnik RZCD Law Firm Co-Counsel

FOR THE EMPLOYER

Regina Wong Treasury Board Secretariat Legal Services Branch Counsel

WRITTEN SUBMISSIONS

Employer: July 7, 2021 Complainant: July 15, 2021

Decision

1Howard Preston was dismissed for cause on March 5, 2021 from his position as Manager, Maintenance Buildings and Grounds in the Provincial and Demonstrations School Branch of the Ministry of Education (the “Employer”). He asserts that the Employer did not have just cause to dismiss him. He seeks reinstatement and full compensation. He filed this Complaint with the Board on May 10, 2021.

2The Employer takes the preliminary position that the Board does not have jurisdiction to hear Mr. Preston’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. Preston disagrees. Through counsel he says that his Complaint was filed in a timely manner, within the required 14 days. He asserts that “days” for this purpose must be interpreted as “business days”, excluding holidays, Saturdays or Sundays. He does not dispute, however, that if his Complaint was filed outside the required time frame, the Board is without jurisdiction to hear it.

3The issue before the Board is thus whether the Complaint was filed within the required 14 days following the dispute resolution period. That in turn requires me to decide the proper definition of “days” for purposes of the timelines under the Regulation.

4For the reasons that follow, I have concluded that the Complaint was filed outside of the mandatory 14-day window for the filing of the Complaint. Unfortunately for Mr. Preston, that means that this Board does not have jurisdiction to hear his Complaint.

Background

5The relevant facts are not in dispute. On March 5, 2021, the Complainant was dismissed from employment, allegedly for cause. On March 18, 2021, the Complainant’s counsel wrote to the deputy minister advising of his intention to file a complaint with the Board regarding the dismissal. There is then a 30-day dispute resolution period. The deputy minister responded by email of April 21, 2021 that the Ministry would not be meeting with the Complainant. No meeting took place. On May 10, 2021, the Complainant filed the Form 1 Application with the Board. In it, he disputes that the Employer had cause to fire him and seeks reinstatement and full compensation.

6A Case Management Meeting with counsel was convened on June 8, 2021. On June 24, counsel for the Employer confirmed its position that the Board, “has no jurisdiction to hear this complaint because it was filed to the PSGB outside the timelines required by the Ontario Regulation 378/07…” As agreed during the Case Management Meeting, written submissions regarding the Employer’s preliminary objection were then exchanged by the parties.

The Timelines Under the Regulation and Their Effect

7There is also no dispute about the basic framework of the timelines for complaints and the dispute resolution process under the Regulation (as opposed to how to calculate the times, which will be discussed below). It is agreed that the jurisdiction of the Board to consider complaints about dismissal for cause starts with section 2(1) of the Regulation, which provides:

2. (1) A person who is aggrieved by his or her dismissal for cause under section 34 of the Act may file a complaint about the dismissal for cause with the Public Service Grievance Board,

(a) if the person is eligible under sections 5 and 6 to file such a complaint;

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

(c) if the person complies with the filing requirements set out in section 10.

8Section 8(4) of the Regulation provides that a complainant in Mr. Preston’s position must give notice of his complaint to his deputy minister within fourteen (14) days of receiving the notice of discipline. Mr. Preston met that requirement.

9Following 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 declined to meet with Mr. Preston, it is agreed that the relevant dispute resolution period is that described in Section 9(5) of the Regulation, which provides:

(5) If the deputy minister… 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…. [emphasis added]

10A 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]

11This is what I have referred to as the mandatory 14-day window for the filing of the Complaint. While the parties agree that the Complaint must be filed within 14 days of the expiry of the dispute resolution period, they disagree on whether that was done.

12There is also no real disagreement regarding the implications of the failure to file a timely complaint with the Board. The Employer submits that this Board has held that the timelines prescribed in the Regulation are mandatory; that the Board does not have jurisdiction to expand them; and compliance with the mandatory timelines “is a precondition to the Board having jurisdiction”. The Employer cites this Board’s previous decisions in St Amant v Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4673 (Carter) at paras 8, 10; Bourgeault v Ontario (Community Safety and Correctional Services), 2013 CanLII 84294 (O’Neil) at para 28; and Hamilton v Ontario (Community Safety and Correctional Services, 2019 CanLII 42439 (Tremayne) at paras 68-75.

13The Employer further submits that the Board has no jurisdiction to entertain a complaint filed more than 14 days after the expiry of the dispute resolution period, citing its previous decisions in Bourgeault, above at paras 19-35; Burkholder v Ontario (Government Services), 2013 CanLII 84293 (Carter) at paras 8-11; and Telford v Ontario (Finance), 2016 CanLII 36364 (O’Neil) at paras 8-9, 32-37. Again, Mr. Preston does not take issue with this general proposition.

Submissions

14The parties disagree as to how the 30-day dispute resolution period and the 14-day window following its expiry should be calculated.

15The Employer argues that the “days” referred to in the Regulation refer to calendar days, not business days. They do not exclude weekends or statutory holidays. They argue that the Legislation Act, 2006, S.O 2006, c21 Sch. F (“Legislation Act”) applies to all regulations, and that its sections 88-89 “provide a clear implication that the reference to ‘days’ in the legislation refers to calendar days.”

16The Employer addresses the Board’s Rules and Practice Notes, which have their own definition of “day” as meaning “any day of the week Monday to Friday, excluding a statutory holiday and any other day the Board is closed”. It is argued that such rules cannot be used to interpret the Regulation in a way that is inconsistent with the Legislation Act. In any event, the Rules are not inconsistent with the Regulation, because the definition of “days” in the Rules only apply to the Rules and not to the interpretation of the Regulation. Moreover, argues the Employer, pursuant to Section 25.1(1) of the Statutory Powers Procedure Act, RSO 1990, c. S.22 (the “SPPA”), “a tribunal may make rules governing the practice and procedure before it.” The Board’s Rules thus only have application to how the administration and hearing of complaints before it once those complaints are properly before the Board. Those Rules cannot provide it with jurisdiction when the enabling regulation does not do so. The Employer cites Fan v. Hamilton (City), 2015 CanLll 47123 (ON CONRB), a decision of the Conservation Review Board, as an example where a similar issue was addressed. That board found that the definition of “day” in its Rules of Practice and Procedure could not be used to interpret how “day” is defined in the applicable legislation.

17The Employer also argues that this Board has been consistent in treating the timelines in the Regulation as calendar days, citing Laforest v Ontario (Solicitor General), 2020 CanLII 10543 (Morgan) at paras 45 & 49; Doyle v Ontario (Ministry of Municipal Affairs), 2017 CanLII 52705 (O’Neil) at paras 21-23; Morris et al v Ontario (Community Safety and Correctional Services), 2018 CanLII 109220 (Nairn) at para 13; Hamilton v Ontario (Community Safety and Correctional Services), 2019 CanLII 42439 (Tremayne); and Stricko v Ontario (Community Safety and Correctional Services), 2018 CanLII 88984 (Morgan), at paras 20-22, 41.

18Applying this definition of “days” as calendar days, the Employer submits that the dispute resolution period expired 30 days after Mr. Preston’s notice was given to the deputy minister, in accordance with section 9(5). As his notice was given March 18, the resolution period expired April 17. The Complainant then had 14 days to file his Complaint with the Board. Fourteen days from April 17 is Saturday May 1, 2021. As the Board is closed on Saturday and Sunday, in accordance with the computation of time provisions of Section 89(2) of the Legislation Act, Mr. Preston was required to file his complaint with the Board by Monday May 3.

19The Employer concludes that, as this complaint was filed with the Board on May 10, 2021, it is untimely, and the Board has no jurisdiction to hear it.

20Mr. Preston responds that “days” in the Regulation refers to business days and thus excludes weekends and holidays. He argues that the Legislation Act does not define “days” at all; nor does the PSOA. Therefore, we “must defer to” the Board’s Rules for the definition of “days”. The Board has the power to enact such Rules, pursuant to section 25.1 of the SPPA, and it has done so. Again, those Rules have a definition of “day” as meaning “any day of the week Monday to Friday, excluding a statutory holiday and any other day the Board is closed”. Mr. Preston argues that those Rules do not contradict the PSOA, the SPPA or the Legislation Act. Therefore, in determining whether the Complaint was filed within the required 14-day window, one must use the definition of “day” in the Rules.

21Applying that definition of “day” and that approach to the computation of time, Mr. Preston asserts that the dispute resolution period expired on April 29, 2021, which is thirty days after March 18, when the deputy minister received notice of his intention, excluding weekends and holidays. Mr. Preston was required to file his complaint within 14 days after that. That is May 19, 2021 if one again excludes weekends and holidays. The Complaint, having been filed with the Board on May 10, 2021 is timely, argued the Complainant.

Analysis and Decision

22This case turns on how one calculates the 30-day dispute resolution period and the subsequent 14-day window for the timely filing of the Complaint. What is the meaning in Section 9(5) of the Regulation of the phrase, “the period for dispute resolution expires 30 days after the notice was given to the deputy minister…”? And what is the meaning in Section 10(1) of the phrase, “within 14 days after the expiry of the period… for dispute resolution…”?

23This is a matter of statutory interpretation. We must therefore apply the Legislation Act. Sections 46 and 47 make it clear that Part VI of the Legislation Act applies to all provincial regulations unless the contrary intention is clear. They provide as follows:

Application to Acts and regulations

46 Every provision of this Part applies to every Act and regulation.

Contrary intention or context requiring otherwise

47 Section 46 applies unless,

(a) a contrary intention appears; or

(b) its application would give to a term or provision a meaning that is inconsistent with the context.

24Section 89 of Part VI of the Legislation Act deals with the computation of time for the purposes of all provincial legislation. It provides:

Holidays

89 (1) Time limits that would otherwise expire on a holiday are extended to include the next day that is not a holiday.

Days on which offices closed

(2) Time limits for registering or filing documents or for doing anything else that expire on a day when the place for doing so is not open during its regular hours of business are extended to include the next day the place is open during its regular hours of business.

Number of days between events

(3) A reference to a number of days between two events excludes the day on which the first event happens and includes the day on which the second event happens, even if the reference is to “at least” or “not less than” a number of days.

Specified day excluded

(5) A period of time described as beginning before or after a specified day excludes that day.

25Section 89 says nothing about excluding Saturdays, Sundays or holidays when computing time periods set forth in legislation. Instead, sub-section (3) makes it clear that “reference to a number of days between two events excludes the day on which the first event happens and includes the day on which the second event happens”. Sub-section (2) provides that when time limits for filing documents expire on a day when the place for doing so is not open, the time limit is “extended to include the next day the place is open.” These are the explicit legislative directions as to how days are to be computed and what days are to be excluded.

26Such explicit legislative directions do not allow for the further exclusion of Saturdays, Sundays and holidays when computing timelines under the Regulation. It is a well accepted principle of statutory interpretation that when a statute expressly provides for one approach, it excludes a different approach (the “law Latin” principle, expressio unius est exclusio alterius).

27The Regulation contains no definition of “days”. Nor does it contain provisions about how time is to be computed. Nor does the PSOA contain such a definition or provisions.

28The exceptions contemplated by Section 47 of the Legislation Act therefore do not apply. There is no contrary intention in the PSOA or the Regulation. Nor would counting days in the manner set forth in Section 89 give any provision of the Regulation a meaning that is inconsistent with its context. While Mr. Preston relies on the absence of a definition or a time computation provision in the Regulation, this is not the same as an inconsistency. The void is filled by the Legislation Act.

29Do the Board’s Rules and Practice Notes affect this interpretation? They do not and cannot.

30Again, the definition relied on by Mr. Preston is found in Section 1 of the Board’s Rules. It provides:

1. In these Rules,

(d) “Day” means any day of the week Monday to Friday, excluding a statutory holiday and any other day the Board is closed…

31This definition in the Rules does not and cannot affect or govern the calculation of “days” under the Regulation for two reasons.

32Firstly, it does not purport to do so. Section 1 makes it clear that the definitions that follow apply “in these Rules”. Nowhere is it suggested that such definitions apply to the Regulation. The time periods at issue here are found in the Regulation and not in the Rules. The definition of “days” in the Rules is inapplicable.

33Secondly, the Rules do not affect or govern the calculation of “days” under the Regulation because they cannot legally have that effect. As argued by the Employer, Section 25.1(3) of the SPPA requires that the Rules be consistent with the SPPA and any other Acts to which it relates. Subsection (1) states that a tribunal may make “rules governing the practice and procedure before it.” The Board’s Rules cannot alter the application of the computation of time provisions of the Legislation Act to the Regulation, so as to give the Board jurisdiction that it would not otherwise have. As the Conservation Review Board observed in Fan v. Hamilton (City), above, at para. 81:

Review Board Rule 3 is prefaced with the qualifier “In these Rules” and although the Review Board has jurisdiction to control its own timelines, it has no jurisdiction whatever to control statutory ones or to redefine the terms of the Act.

34As was the Conservation Review Board, I am therefore compelled to find that “days” under the Regulation are not “business days” as submitted by Mr. Preston. Rather they are calendar days subject only to the exclusions and qualifications set out in the Legislation Act.

35This in turns leads to the conclusion that Mr. Preston’s complaint was not filed within the mandatory 14-day window following the expiry of the dispute resolution period. In the result, the Board does not have jurisdiction to hear this Complaint on its merits.

36The 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 Burkholder, above, at para. 11 are applicable here:

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 to file the Form 1 Application. 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.

37Before concluding, I feel compelled to observe that while this case cannot proceed before the Board, that may not be the end of the road for this dispute. Other avenues of recourse, whether in the courts or other tribunals, likely remain available to Mr. Preston, as those forums may well have concurrent jurisdiction. [See for example Burgess v. Ontario (Ministry of Health), 2001 CanLII 24073, 55 D.L.R. (4th) 295 (Ont. C.A.) and Guenette v. Canada (Attorney General) 2002 CanLII 45012 (Ont. C.A.).] Given the continuing availability of those potential forums, and the resulting time, complexity and costs involved, in cases like this one serious consideration ought to be given to the Board’s ability to provide an expeditious and cost-effective dispute resolution mechanism through mediation (which can be conducted without prejudice to the parties’ respective positions on jurisdictional questions or on the merits), as a means of reaching finality for the benefit of both parties.

38In any event, for the above reasons the Employer’s preliminary objection is upheld, and the Complaint is dismissed as untimely.