PSGB# 2021-0237

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Polanski

Complainant

• and –

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

Employer

• and –

“M”, “T”, “B”, “N” and “C”

Other Respondents

BEFORE

Brian Smeenk

Chair

FOR THE COMPLAINANT

Grzegorz Polanski

FOR THE EMPLOYER

Sean White Treasury Board Secretariat Legal Services Branch Counsel

WRITTEN SUBMISSIONS

Employer: July 16, 2021 Complainant: July 19, 2021 Employer’s Reply: August 16, 2021

Decision

1Mr. Grzegorz Polanski has held the position of Sergeant at the Employer’s Toronto South Detention Centre (“TSDC”) since 2019. He was previously a Correctional Officer, employed since 2008. Mr. Polanski filed this Complaint with the Board on March 14, 2021. He filed it using the Board’s Form 1a Application. That form is intended for complaints regarding alleged reprisals for disclosures of wrongdoing or political activity. After the Employer’s preliminary objection was received, he stated that he didn’t realize it should have been filed using the Board’s Form 1. That is the form used for complaints by eligible employees about discipline, working conditions or terms of employment.

2In addition to the Employer, Mr. Polanski named 5 individuals as “Respondent Others”. On agreement of the parties, they will be identified only by initials, M, T, B, N and C, respectively. They are all employees of the Employer working at TSDC. At the direction of the Board, those individuals were served with notice of this Complaint by the Employer’s counsel. None of them have filed a response of any kind.

3The basic nature of this Complaint is summarized by Mr. Polanski when he states how the five individual respondents are affected:

The five listed are the persons who have discriminated against me, bullied me, racial profiled me [sic], slandered my name and created defamation of my character. This has caused me to be diagnosed with PTSD depression anxiety destroying my home life, my career and self worth.

4Mr. Polanski alleges that he has been targeted and subjected to such treatment because he is white.

5The Employer requests that the Complaint be dismissed on a preliminary basis and without a hearing on the merits. It relies on two grounds. First, it argues that if the Complaint was intended to be filed using Form 1a, Mr. Polanski has failed to allege facts which could possibly constitute a prima facie case for such a reprisal complaint. Second, it argues that if Form 1a is found to have been used in error and the Complaint was intended to be one regarding working conditions or terms of employment, the Complaint is untimely. It argues that the Complaint was filed outside of the mandated timelines for such complaints set out in Ontario Regulation 378/07 (“the Regulation”) under the Public Service Act, 2006, S.O. 2006 c. 35, Sched. A (“the Act”). It argues the Board therefore has no jurisdiction to hear the Complaint on the merits.

6This decision deals with the Employer’s preliminary objections. For the reasons that follow, I have concluded that both objections must be upheld. The Complaint must be dismissed regardless of whether it is considered to be a reprisal complaint or a complaint about a working condition or term of employment. In so finding, the Board is not judging the merits of Mr. Polanski’s allegations. It is finding that they are not properly before this Board.

The Complaint

7The allegations made by Mr. Polanski relate to events that he says occurred between 2016 and February 2021. They all involve other supervisory or management-level employees working at TSDC. The allegations can be summarized as follows:

1. In January 2016, N falsely accused him of misconduct, including saying that he used a misogynistic slang term for her. Despite this, N was later promoted
2. In January 2017, C told him that he would never be a Sergeant as long as C was a Deputy at TSDC.
3. In June 2016, N made another false statement against him.
4. In March 2018, S (who is not a named respondent) yelled at him to leave an area during an incident in progress, as it was her area; this was never investigated.
5. In June 2018, B and two other members of management “tried to write me up for unprofessionalism during a code” while they shirked their own duties.
6. In August 2018, B “wrote me up” and tried to force an inmate to allege that Mr. Polanski had beat him, saying he was racist toward the inmate.
7. In September 2018, he was falsely accused of engaging in a work stoppage.
8. In October 2019, he was called “a well-known racist” by M in front of at least 10 Sergeants, a Staff Sergeant and a Deputy, and nothing was done about it.
9. In October 2019, he was told by M during a code to leave the unit, as “we don’t need your kind here.”
10. In December 2019, he was told by S to leave a unit, as “clearly you are the problem.”
11. In November 2019, a YouTube video came out, regarding the people who were harassing him and an investigation ensued.
12. In April 2020, he was threatened by B.
13. In June 2020, T said that “a white Sergeant like myself shouldn’t work in segregation” and accused him of not feeding a black inmate.
14. In June 2020, he was told that N was “gunning for me”.
15. In August 2020, H (who is not a named respondent) was caught coaching inmates to write statements against him.
16. In February 2021, T and M made a statement in the Toronto Star saying that Mr. Polanski was racist and the next day an MPP made a similar statement in the legislature.
17. Mr. Polanski concludes by alleging that, “all the people mentioned above are all non-white and I am the white person that has been targeted for many years by the same group over and over again.” He further states that, “The institution… has done nothing to help me. I have over 30 letters, emails, reports begging for help, begging for a safe work environment, that was never provide [sic].”

8Mr. Polanski seeks a broad range of remedies. These include monetary damages and an order that the responding parties cease and desist from slandering and defaming his character, as well as the creation of a safe work environment.

The Employer’s Preliminary Objections & the Response

9The Employer argues that the use of a Form 1a by Mr. Polanski was either intentional, or an error. Mr. Polanski should be taken at first instance to have intended to do what he did – namely, file a Form 1a complaint with the Board dated March 14, 2021.

10The Employer’s first preliminary objection posits that, having filed a reprisal complaint using Form 1a, Mr. Polanski has failed to allege facts which, if accepted as true, could constitute a prima facie case for such a complaint. He has thus failed to make out a prima facie case of reprisal for either a disclosure of wrongdoing or political activity on his part.

11Regarding protection against reprisals for political activity pursuant to Section 103 of the Act, the Employer asserts that Mr. Polanski has not said that he was engaged in political activity as defined by Section 72 of the Act; nor has he alleged facts that would show any reprisal for political activity.

12The Employer then turns to the protection against reprisals for exercising rights in relation to disclosure of wrongdoing found in Section 139 of the Act. It argues that no facts have been alleged that could lead to a finding that there were reprisals against Mr. Polanski for having engaged in any of the protected actions described in subsections 139(1)(a), (c), (d) or (e). Regarding subsection 139(1)(b), which provides reprisal protection for making a disclosure of wrongdoing, it is argued that Mr. Polanski has not made a disclosure as envisioned by the Act. Such a disclosure could be made in one of two ways: either by following the procedures set out in any directive made by the Public Service Commission (in accordance with Section 115 of the Act) or directly to the Integrity Commissioner (in accordance with Section 116 of the Act). There is no indication that Mr. Polanski followed either route. The Employer argues there was therefore no disclosure of wrongdoing that would give rise to reprisal protection. It further argues that, in any event, Mr. Polanski has not alleged facts that could constitute reprisals by the Employer. Regarding the “write-ups” about which he complains, the Employer argues that there is no allegation that these were tied to any disclosure of wrongdoing on Polanski’s part. Therefore, the complaint should be dismissed on a preliminary basis. The Employer relies on Doyle v. Ontario (Ministry of Municipal Affairs) 2017 CanLii 52704 (O’Neil) at paras 52 – 55 [“Doyle”], and Barker v. Ontario (Ministry of Natural Resources and Forestry), 2021 CanLii 16291 (Tremayne) at paras. 77, 78 and 82 [“Barker”].

13If the use of a Form 1a is found to be an error, and Mr. Polanski is found to have intended to file a complaint about working conditions or terms of employment, then the Employer’s second preliminary objection posits that Mr. Polanski failed to adhere to the statutorily mandated timelines set out in the Regulation for such complaints. The Employer argues that the Complaint should be dismissed on a preliminary basis on that ground, because:

a. Mr. Polanski forwarded a notice of intent to file a complaint dated January 3, 2020, outlining substantially the same grievances that are the subject of this Complaint.

b. With respect to Mr. Polanski’s January 3, 2020 notice of intent, a meeting was held with the Deputy Minister’s designee on January 31, 2020 and the complaint was thereafter denied via letter dated February 19, 2020.

c. Mr. Polanski then had 14 days, or until March 4, 2020, to forward his complaint (Form 1) to the Board.

d. Mr. Polanski’s Complaint dated March 14, 2021, even if intended to be a Form 1, does not conform with the timeline requirements of the Regulation for such a complaint. It is late by over twelve (12) months.

e. The Board therefore has no jurisdiction to hear the complaint on its merits.

14In support of its argument regarding timeliness, the Employer relies on St. Amant. v. Ontario (Ministry of Community Safety and Correctional Services) 2013 CanLii 4673 (Carter) at para. 10; Bourgeault v. (Ministry of Community Safety and Correctional Services) 2013 CanLii 84294 (O’Neil) [“Bourgeault”]; and Hamilton v. (Ministry of Community Safety and Correctional Services) 2019 CanLii 42439 (Tremayne).

15Mr. Polanski responded to the Employer’s preliminary objection submissions by apologizing because he did not realize he should have used Form 1 for his Complaint. Regarding the timeliness of his Complaint, he states that he tried to resolve the issues internally for a long period of time and did not realize there was a time limit. Recently he had re-submitted all his reports and emails regarding the last few years to his Deputy, and her response was that the matter was closed.

16The Employer, in reply, takes Mr. Polanski’s response as an admission that his Complaint should have been filed as a Form 1 complaint, and that it was filed out of time. It argues that his informal attempts to resolve matters internally do no serve to alter or extend the applicable time limits under the Regulation for matters that come before the Board.

Analysis and Decision

Relevance of the Nature of the Complaint

17In this particular case, it is not necessary to determine whether the Complaint should be considered as a reprisal complaint, as originally filed using the Board’s Form 1a, or as a complaint about working conditions/terms of employment for which the Board’s Form 1 should have been used. This is because I have concluded that the Complaint must be dismissed on a preliminary basis regardless of which kind of complaint it is.

18In other circumstances, it may be important to determine such a question. As noted above, Form 1a is intended for complaints regarding alleged reprisals for disclosures of wrongdoing or political activity. Form 1 is intended (without being exhaustive) for complaints about working conditions, terms of employment, discipline, and discharge. The distinction is important because the Regulation has mandatory timelines to be followed by someone who wants to complain about working conditions or a term of employment (see sections 4, 8, 9 and 10 of the Regulation, which will be discussed further below). Reprisal complaints are carved out of these strict timeline requirements by Section 4(3) of the Regulation. This gives potential complainants much more scope, in terms of time, to file reprisal complaints. Section 4 provides as follows:

4. (1) Subject to subsection (2), a public servant who is aggrieved about a working condition or about a term of his or her employment may file a complaint about the working condition or the term of employment with the Public Service Grievance Board,

(a) if the public servant is eligible under sections 5 and 7 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.

(2) The following matters cannot be the subject of a complaint about a working condition or about a term of employment: ….

(3) Subsections (1) and (2) do not affect the right of a public servant to file a complaint under Part V of the Act (Political Activity) or a complaint under Part VI of the Act (Disclosing and Investigating Wrongdoing). [emphasis added]

19The Employer argues that the Board should find that Mr. Polanski intended to file the Complaint as a reprisal complaint using Form 1a, and find that he has not made out a prima facie case. In my view, however, the issue of a complainant’s intention based on what Form was used is not the real issue. Were it necessary to decide the nature of the Complaint, rather than attempting to decipher Mr. Polanski’s subjective intention, the Board must objectively analyze the Complaint itself to determine its fundamental nature, or the fundamental nature of its parts. Is it, in whole or in part, a complaint about alleged reprisals against which provincial employees are protected under Sections 103, 104 (political activity) and 139-140 (disclosure of wrongdoing)? Or is the Complaint, in whole or in part, fundamentally about working conditions or terms of employment?

20While the Board’s Rules of Procedure (“Rules”) require what Form should be used for each kind of complaint, Section 8 of the Rules also allow a complaint to be amended with leave of the Board. Furthermore, the Rules cannot override statutory rights or obligations (see the Board’s decision in Preston v. Ontario (Ministry of Education), 2021 CanLii 71622 (Smeenk) and section 25.1(3) of the Statutory Powers Procedure Act, R.S.O. c.S.22). Consideration of the fundamental nature of the allegations in question would avoid undue formalism and give effect to the rights and obligations contained in the Act and Regulation. However, in this case, we need not engage in that analysis, for the reasons set out below.

Does the Complaint Make Out a Prima Facie Case about Reprisals?

21Rule 15 of the Rules effective September 7, 2021, provides that the Board may dismiss a complaint without a hearing if it considers that the complaint “does not make out a case for the orders or remedies requested, even if all the facts stated in the complaint are assumed to be true.”

22Protected political activity is defined by Section 72 of the Act, subject to the restrictions set out in sections 75 to 84. The Employer argues that the Complaint contains no allegations about the Complainant having engaged in protected political activity. I agree. There is nothing in the Complaint that even suggests that Mr. Polanski engaged in any protected political activity.

23Without any alleged political activity there can have been no related reprisals. The Complaint therefore does not make out a case for any remedies in connection with reprisal for political activity, even if all the allegations are assumed to be true.

24Is there, however, a prima facie case made out about reprisals for disclosure of wrongdoing? In my view, for the reasons that follow, there is no allegation of the kind of disclosure that is protected by the Act. Again, therefore, there could have been no reprisals for a protected disclosure. Further, Mr. Polanski has not alleged that any of the conduct about which he complains was a reprisal because he exercised his rights regarding disclosure of wrongdoing.

25Part VI of the Act, entitled “Disclosing and Investigating Wrongdoing,” contains a complete scheme for such matters in the Ontario public service. Among other things, it defines “wrongdoing” for these purposes, sets out specific disclosure procedures, and provides for protection against reprisals for those who exercise rights under that Part.

26Part VI sets out two methods of disclosure of wrongdoing. The first is the process set forth in the applicable Directives of the Management Board of Cabinet. The second is a disclosure to the Integrity Commissioner.

27More specifically, regarding the first route, Sections 114 and 115 provide as follows:

Disclosure, procedures

114 Where a public servant or former public servant has reason to believe that there has been wrongdoing, he or she may disclose the wrongdoing in accordance with the procedures established under section 115.

Directives

Directives, Public Service Commission

115 (1) The Public Service Commission may by directive establish procedures to deal with disclosures of wrongdoing by,

(a) a public servant who works in a ministry; and

(b) a former public servant who worked in a ministry immediately before ceasing to be a public servant.

Directives, Management Board of Cabinet

(2) The Management Board of Cabinet may by directive establish procedures to deal with disclosures of wrongdoing by,

(a) public servants who work in a public body; and

(b) former public servants who worked in a public body immediately before ceasing to be a public servant.

28The Employer points out that Section 7.2 of Management Board’s Disclosure of Wrongdoing Directive provides that such a disclosure must be made to the employee’s ethics executive. In this case, that would be Mr. Polanski’s Deputy Minister.

29The second route for making such a disclosure is established by section 116 of the Act in the following terms:

Disclosure to Integrity Commissioner

116 A public servant or former public servant may disclose wrongdoing to the Integrity Commissioner if,

(a) the public servant or former public servant has reason to believe that it would not be appropriate to disclose the wrongdoing in accordance with the directives issued under section 115;

(b) the public servant or former public servant has already disclosed the wrongdoing in accordance with the directives issued under section 115 and has concerns that the matter is not being dealt with appropriately; or

(c) directives applying to the public servant or former public servant have not been issued under section 115.

30Part VI contains an extensive scheme of processes, duties and responsibilities that apply when disclosures have been made to the Integrity Commissioner.

31The protection against reprisals for such disclosures is contained in Sections 139 and 140 of the Act. Their relevant parts provide as follows:

Protection from Reprisals

No reprisals

139 (1) No person shall take a reprisal against a public servant because he or she has,

(a) sought advice about making a disclosure about wrongdoing in accordance with this Part;

(b) made a disclosure about wrongdoing in accordance with this Part;

(c) co-operated in an investigation or other process related to a disclosure of wrongdoing made in accordance with this Part;

(d) acted in compliance with this Part; or

(e) sought enforcement of this Part.

Same

(2) For the purposes of subsection (1), a reprisal is any measure taken against a public servant that adversely affects his or her employment or appointment and includes but is not limited to,

(a) ending or threatening to end a public servant’s employment or appointment;

(b) disciplining or suspending or threatening to discipline or suspend a public servant;

(c) imposing or threatening to impose a penalty related to the employment or appointment of a public servant;

(d) intimidating or coercing a public servant in relation to his or her employment or appointment. 2

Complaint about reprisal

140 (1) A public servant described in subsection (2), (3) or (4) may complain under this section that he or she has suffered a reprisal prohibited by section 139.

Public servant not subject to collective agreement

(3) A public servant employed under Part III who is not subject to the terms and conditions of a collective agreement may file the complaint with the Public Service Grievance Board.

(12) Where a board has made a finding under subsection (8) that a reprisal has been taken, the board shall inform the Integrity Commissioner of the finding. [emphasis added]

32Mr. Polanski does not allege that he made a disclosure of wrongdoing under Part VI of the Act. There is no suggestion that he made a disclosure to the Integrity Commissioner. Nor is there any allegation that he made such a disclosure to his ethics executive. Rather, he says that he wrote a series of letters, emails and reports to his superiors about his mistreatment by the individual respondents and others. I do not consider the complaints that Mr. Polanski says he made to be “disclosures in accordance with this Part” of the Act, for which Section 139 provides reprisal protection.

33This situation is like that considered by this Board in Barker, above. Vice-Chair Tremayne there distinguished between an employee’s concerns or complaints about workplace harassment and disclosures of wrongdoing under Part VI of the Act, which are protected by Section 139. He stated:

[77] On their face, Mr. Barker’s concerns relate to bullying and harassment in the workplace and Mr. Magee’s alleged failure to address these concerns appropriately or to address them at all. However, these assertions do not disclose wrongdoing. Instead, in my view, they disclose that Mr. Barker was unhappy and dissatisfied with Mr. Magee’s management of certain aspects of the Geraldton office. However, even if one were to interpret Mr. Barker’s concerns very broadly and in light of an employer’s legal obligations concerning workplace violence and workplace harassment, they are not a disclosure in accordance with Part VI of the PSOA, which is what is contemplated by the statute as the necessary precondition to the prohibited reprisals.

[78] The procedure for disclosing wrongdoing is set out in s. 114 of the PSOA, and it contemplates disclosure to a public servant’s relevant Ethics Executive or the Office of the Integrity Commissioner. This is a prescribed pathway, and it allows for the kind of internal investigation by the employer that Part VI of the PSOA contemplates. In contrast, in this workplace, allegations of bullying and harassment are appropriately addressed under the complaint process in the employer’s Workplace Discrimination and Harassment Prevention Policy (WDHPP), which is one of the ways that the employer meets its related obligations under the Occupational Health and Safety Act (OHSA), which in turn has its own complaint and enforcement mechanisms.

[82] … The procedure for disclosing wrongdoing is set out in s. 114 of the PSOA, and it contemplates disclosure to a public servant’s Ethics Executive or to the Office of the Integrity Commissioner. Mr. Barker did not express his concerns to either of these parties, and his actions have none of the characteristics of a disclosure of wrongdoing in accordance with Part VI of the PSOA.

34As in that case, the complaints that Mr. Polanski says he made were about discrimination, harassment and other alleged mistreatment of him by his co-workers and managers. There are other processes to deal with such complaints. They do not constitute disclosures of wrongdoing as contemplated by Part VI of the Act. There can therefore have been no reprisals for exercising any rights protected by Section 139(1) of the Act. The Complaint therefore does not make out an arguable case for any remedies in connection with reprisal for disclosure of wrongdoing under the Act, even if all the allegations are assumed to be true.

35Before leaving this issue, I note that counsel for the Employer very fairly points out in his submissions that Mr. Polanski sent a “Letter of Intent” to senior management, including his Deputy Minister, dated January 3, 2020. It outlines many of the same issues that are referenced in this Complaint. It was dealt with as a notice of proposal to file a complaint with the Board, pursuant to the Regulation.

36I agree with the Employer’s argument that this, too, is not a disclosure of wrongdoing for the purpose of Part VI of the Act. The “Letter of Intent” on its face does not purport to be such a disclosure. Rather, in it Mr. Polanski references a prior “WDHO” [which I understand to mean “Workplace Discrimination and Harassment”] complaint, a human rights complaint and working in an unsafe work environment. Such complaints of mistreatment by co-workers or managers are to be dealt with under other processes specifically designed for that purpose. They were not disclosures of wrongdoing as contemplated by Part VI of the Act.

37But more important than the process chosen by Mr. Polanski, is the fact that none of Mr. Polanski’s allegations in the Complaint before the Board suggest a reprisal for having filed the “Letter of Intent”. Many of his allegations pre-date January 3, 2020. Those that relate to alleged events after that date do not suggest in any way that they were in reprisal for his having filed the “Letter of Intent”. Therefore, even if that Letter might be considered to be a protected disclosure of wrongdoing under the Act, the Complaint does not allege that he was subject to reprisals because of it. The Complaint therefore does not make out an arguable case for any remedy under Part VI of the Act, even if all the allegations are assumed to be true.

38In coming to this conclusion, it is worth emphasizing that I am not deciding whether Mr. Polanski has valid concerns about his treatment by his co-workers and members of management. He may or may not have been badly treated. He may or may not be able to seek remedies elsewhere for such treatment. But he has not made out a prima facie case for a reprisal complaint under the Act. Such a complaint must be in respect of reprisals for political activity or protected disclosures of wrongdoing. This decision simply finds that his complaint does not fall within these provisions of the Act, so it is not properly before this Board.

Is the Complaint Untimely?

39To repeat, the essential chronology of this matter is as follows. The Complaint was filed March 14, 2021. The last incident complained of occurred February 28, 2021, followed by a statement by an MPP the following day. All prior incidents that are the subject of the Complaint occurred on or before August 6, 2020. Mr. Polanski’s notice of proposal to file a complaint (he called it a “Letter of Intent”) was filed with his Deputy Minister on January 3, 2020. A meeting was held and his complaint was denied by letter dated February 19, 2020.

40Based on that chronology, if the Complaint is considered to be one relating to working conditions or terms of employment the Employer argues that Mr. Polanski did not adhere to the mandatory timelines set out in the Regulation. The Board is thus without jurisdiction to hear the case.

41Section 4 of the Regulation sets out the conditions that must be met for filing a complaint regarding working conditions or a term of employment:

4. (1) Subject to subsection (2), a public servant who is aggrieved about a working condition or about a term of his or her employment may file a complaint about the working condition or the term of employment with the Public Service Grievance Board,

(a) if the public servant is eligible under sections 5 and 7 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]

42Section 3 contains a similar provision regarding the filing of a complaint about discipline. It also requires that the employee provide prior notice to the Employer in accordance with section 8.

43Section 8 in turn provides that notice of a proposal to file complaint about discipline, or about working conditions or a term of employment, must by given to the employer “within 14 days after” the complainant becomes aware of working condition, term of employment or disciplinary measure, as the case may be.

44Section 9 then provides for a dispute resolution period of up to 30 days (the time may vary depending on the actions of the parties).

45Section 10 then dictates that a complaint must be filed within 14 days after the expiry of the dispute resolution period. More specifically, 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.

46The Board has well-established case law that makes it very clear that where a complainant fails to adhere to the mandatory procedures and timelines set out in the Regulation, the Board has no jurisdiction to hear the Complaint and it must be dismissed. For example, the Board’s comments in Bourgeault, cited 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.).

47Applying the requirements of the Regulation and this case law to the facts of this case, it is clear that the Complaint has not been filed in accordance with the mandatory timelines and processes set forth in the Regulation.

48The Complaint does not on its face reference any notice of proposal to file a complaint. There is no indication of such a notice having been provided within 14 days of the last incident complained of, which occurred on February 28, 2021, or any prior, alleged events. That is a fatal flaw for a complaint regarding working conditions, under Section 4(1) of the Regulation, at least in respect of those events said to have occurred after January 30, 2020.

49If time limits are analyzed in relation to the notice of proposal or “Letter of Intent” dated January 30, 2020, the Complaint was filed too late. The Employer responded to it during the dispute resolution period, by letter dated February 19, 2020. Therefore Mr. Polanski had 14 days from then, or until March 4, 2020 to file his Complaint with the Board, regarding the events referenced in that notice. But he filed this Complaint about a year later.

50Mr. Polanski responds that he was trying to resolve the issues internally and was unaware of these timelines. Unfortunately for him, those reasons do not allow the Board to relieve against the mandatory time limits. In Telford v Ontario (Finance), P-2015-1619, 2016 CanLII 36364 (O’Neil), which is quoted in Doyle, cited above, the Board noted:

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.

Conclusion

51For all these reasons, regardless of whether this is considered to be a reprisal complaint (which should be filed, as it was, using Form 1a) or a complaint about a working condition or term of employment (which should have been filed using Form 1), Mr. Polanski’s Complaint must be and is hereby dismissed.