PSGB# P-2022-2913

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Wallace

Complainant

• and -

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

Employer

BEFORE

Brian Smeenk

Chair

FOR THE COMPLAINANT

Judith Wallace

FOR THE EMPLOYER

Caroline Cohen Treasury Board Secretariat Labour Practice Group Senior Counsel

SUBMISSIONS

August 16, 2022

Decision

1The Complainant Judith Wallace’s was Deputy Superintendent, Operations and Compliance at the Employer’s Central North Correctional Services (“CNCC”) in Penetanguishene, Ontario. This was her home position. In 2019 she was temporarily transferred to the Central East Correctional Centre (“CECC”) in Lindsay, which she refers to as a “secondment”. She filed this Complaint with the Board on May 20, 2022.

2In the Complaint, Ms. Wallace alleges that she was promised that the secondment would last until her normal retirement in late 2022 or 2023. She complains that in ending the secondment before then, the Employer not only breached the promises made to her but also failed to accommodate her on the basis of disability and family status (elder care), and discriminated against her. She also complains of harassment by a peer that allegedly took place in October 2021. Finally, she complains of an ongoing failure to accommodate her after the temporary transfer ended and discriminatory treatment as compared with other employees.

3The Employer denies all of Ms. Wallace’s allegations on their merits. It also raises a preliminary objection that Ms. Wallace’s notice of proposal to file a complaint with the Board (“NOP”) was not given to her Deputy Minister within the mandatory time limit for doing so, and the Board is therefore without jurisdiction to consider it.

4This decision deals with the Employer’s preliminary objection.

5For the reasons that follow, I have concluded that the first two elements of the Complaint are untimely and the Board does not have jurisdiction to deal with them. The third element of the Complaint, however, regarding whether the Employer fulfilled its duty to accommodate after the “secondment” or temporary transfer ended, is not untimely and is properly before the Board.

The Complaint

6The essence of Ms. Wallace’s allegations are found in the following passage of her Complaint:

In 2019 I started a secondment to CECC from CNCC due to a disability and elderly [sic] care for my father who lives in Peterborough. When I arrived at CECC and asked how long I was here for I was told by the superintendent at the time that I was here until I retired (2022-23). I also asked the now superintendent and he stated the same thing that I was at CECC until I retired. Because of this I gave up my apartment in Penetanguishene and bought my parents’ house in Peterborough closer to family. Now they will not honour my accommodation and want me to drive 2 1/2 - 3 hours one way to work at CNCC from my home, in Peterborough, everyday which due to my disability I can not manage. … I have asked again to be accommodated closer to my home, CECC, with no response since January 17, 2022 so I am sitting home willing to work. …. I feel this is a direct violation of the Ontario Human Rights policy on Ableism and Discrimination based on Disability as well as a duty to accommodate policy….

October 28, 2021 I complained to the superintendent that I had an incident with a peer, not the first one and I was not the only person….This man was in my office, closed the door and would not let me out until I threatened to call police.... This is a human rights issue as he was bullying me due to being female and due to my age as he always was telling me to retire.

I also feel discriminated against due to the fact that an OPSEU member is accommodated immediately pending documentation and it has been almost 3 months waiting for me. I have to say that in the mean time I have had knee surgery so it has given my employer time to accommodate.

7Ms. Wallace seeks full compensation for the period from July 31, 2022 (when she actually retired) to December 31, 2023 (when she asserts she would have retired if she’d been accommodated). She also seeks damages for “added stress and suffering” in the amount of $15,000.

The Employer’s Preliminary Objection

8The Employer submits that the Board lacks jurisdiction to hear the complaint because the NOP was given to Ms. Wallace’s Deputy Minister outside the time limits specified in section 8(4)(3) of Regulation 378/07 (“the Regulation”) under the Public Service of Ontario Act, 2006, S.O 2006, c.35 Sched. A (“PSOA”). That section requires that an NOP about a working condition or term of employment must be given to the deputy minister, “within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint.”

9The Employer submits that the first main element of the Complaint, the termination of the temporary assignment at CECC, crystallized on December 8, 2021. This is when, the Employer asserts, Ms. Wallace was advised that she had not been successful in a competition for one of several permanent Deputy Superintendent positions at CECC. It is alleged that Ms. Wallace was told that she had to obtain one of the posted positions in order to remain at CECC. It is further argued that there is no other “triggering event”. Further it is argued that Ms. Wallace did not ask for family status accommodation until April 6, 2022, the same day she gave her Deputy Minister her NOP. Accordingly, the only crystalized term and condition of employment complained of at the time of the NOP was the termination of the temporary assignment at CECC on December 8, 2021. As more than 14 days elapsed between December 8 and the filing of the NOP on April 6, 2022, the Employer argues the Complaint should be dismissed on a preliminary basis. It is asserted that the Board has no jurisdiction to hear the complaint on its merits.

10Regarding the second main element of the Complaint, the allegations of harassment by a peer, the Employer submits that it is similarly untimely and must be dismissed on the same basis. As that harassment event allegedly occurred on October 28, 2021 and there was no complaint to the Employer until April 6, 2022, that part of the Complaint also does not comply with section 8(4) of the Regulation. The Board is therefore without jurisdiction to deal with this element also, submits the Employer.

11Finally, regarding the third main element of the Complaint, the ongoing lack of accommodation and differential treatment as compared with a member of the Ontario Public Service Employees Union (“OPSEU”), the Employer submits that it should also be dismissed on the basis that it is untimely, based on the same reasoning as applies to the first element discussed above.

12In support of its arguments, the Employer relies on St. Amant. v. Ontario (Ministry of Community Safety and Correctional Services) 2013 4673 (Carter) at para. 4 – 10 and Hasted v Ontario (Community Safety and Correctional Services), 2016 CanLII 7473 (ON PSGB) at para. 24.

13Ms. Wallace filed no response to the Employer’s submissions on timeliness.

Analysis and Decision

Legal Framework

14Section 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]

15Section 8 in turn provides that a notice of proposal to file a complaint with the Board about working conditions or a term of employment (“NOP”) must be given to the employer “within 14 days after the complainant becomes aware of working condition or term of employment giving rise to the complaint.”

16Section 9 then provides for a dispute resolution period of up to 30 days (the time may vary depending on the actions of the parties).

17Section 10 then dictates that a complaint must be filed with the Board within 14 days after the expiry of the dispute resolution period.

18The Board has well-established case law that makes it clear that if 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, in the St. Amant case cited by the Employer, the Board explained as follows at paragraphs 8 and 10:

[8] …the Board has held that the combined effect of sections 4 and sections 8 of as Regulation 378/07 was to make proper notice [to the DM] of a complaint a matter going to its jurisdiction. In these two cases, however, there had been a complete failure to give any notice while in this case notice had been given but given outside the required time limits. The Board does not consider that this difference changes the outcome for this complaint. Given the mandatory language of the 14 day time limit set out in section 8, the Board must conclude that notice given within that time limit is also just as much a precondition for it to assume jurisdiction over a matter as the requirement to give the notice.

[10] There still remains the issue of whether the PSGB has any authority to extend the time limits set out in section 8 of Regulation 378/07..… 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.

19St. Amant was decided in 2013. It has since been followed consistently by the Board. See for example recent decisions like Bazger v Ontario (Solicitor General), 2021 CanLII 71621 (ON PSGB) and Preston v Ontario (Education), 2021 CanLII 71622 (ON PSGB) and the decisions referenced therein.

20In deciding how to apply the strict time limit regarding the giving of the NOP, the Board must determine when “the clock starts ticking”. This is often referred to as the date when the complaint ‘crystalized’. As stated above, under section 8(4) of the Regulation, the time for giving to the Employer an NOP is, “within 14 days after the complainant becomes aware of working condition or term of employment giving rise to the complaint.” Thus, a determination must be made about when the requisite level of awareness occurs to start the 14 day clock. As pointed out by the Employer, this concept is aptly described in Hasted v Ontario (Community Safety and Correctional Services), 2016 CanLII 7473 (ON PSGB) at para. 24 as follows:

[24] The complainants acknowledge that they accepted the employer’s recitation of their terms of employment at the outset of their assignment. The complainants had expressly been informed that, allegedly for reasons having to do with scheduling at TCI, they were not entitled to the compensation they now claim. In other words, they were aware of the working condition or term of employment – that is, that they would be required to perform on call duties and further, that they would not be specifically compensated for that work. In addition to understanding the employer’s position, they were then in a position to investigate and challenge that position. Any complaint about the fact that they were not going to be specifically compensated for such duties crystallized at that time, at the outset of their assignment. Similarly, in St. Amant, supra, the Board found that the time limit ran from the date that the complainant understood that the employer’s delay in responding to her request for a leave of absence rendered her unable to utilize the leave. The Board found that the employer’s failure to respond by a given date “brought the matter to a head” at that time (para. 9).

The Peer Harassment Allegation

21I will deal first with the second main element of the Complaint, the allegation regarding harassment by a peer. It can be dealt with succinctly.

22On the face of both Ms. Wallace’s NOP and the Complaint filed with the Board, this harassment allegedly occurred on October 28, 2021. It is stated that, “these were all dealt with by saying sorry, this is not right…” There is no suggestion that the harassment continued after that.

23This incident therefore clearly occurred well beyond 14 days before the NOP was given to the Employer on April 6, 2022. The NOP therefore does not comply with section 8(4) of the Regulation with respect to this allegation.

24The Board therefore has no jurisdiction to consider this element of the Complaint.

The Ending of the Temporary Assignment

25Turning next to the first main element of the Complaint, the core of it is the allegedly improper cessation of Ms. Wallace’s temporary assignment as a Deputy Superintendent at CECC. The Employer asserts that she became aware on December 8, 2021 that the temporary assignment was coming to an end. The 14 day clock thus started ticking then, it argues. And the Complaint was lodged long after the 14 days had expired.

26The relevant facts, to the extent they are not in dispute, are as follows:

a. On July 15, 2019, Ms. Wallace wrote to then-Regional Director, Northern Region, Kathy Kinger, requesting a transfer to CECC for compassionate reasons. She advised Kinger that that her father was experiencing health issues (COPD and dementia), and while her brother had been the main caregiver for their father to that point, her brother was now having to deal with her nephew’s health issues as well. The request also indicated that an accommodation to work out of CECC would allow her to be closer to her family, who lived in that area.

b. The Employer then agreed to place Ms. Wallace in a Deputy Superintendent of Operations position at CECC on a temporary basis. She started that temporary assignment on November 12, 2019. It was stated to have an End Date of “November 8, 2020 with possibility of extension.”

c. The Temporary Assignment Agreement which Ms. Wallace signed has a provision entitled, “Extension of Assignment”. It provides as follows:

The assignment may be extended for an additional period of time upon the agreement of undersigned (Receiving and Releasing Ministries and the Employee).

d. The Agreement also provided for what would occur on expiry of the assignment, in the following terms:

At the conclusion of the temporary assignment, the Employee will return to the home position at the home position’s current classification level, and at the salary the Employee would have attained had the assignment not occurred.

e. The term of the temporary assignment was extended several times. During these extensions Ms. Wallace held the following positions at CECC:

• November 12, 2019 – December 16, 2019 - Deputy Superintendent, Operations
• December 16, 2019 – June 8, 2020 - Deputy Superintendent
• June 8, 2020 – Jan. 25, 2021 - Deputy Superintendent, Programs
• Jan. 25, 2021 – Jan. 17, 2022 - Deputy Superintendent, Compliance & Security

f. In the fall of 2021, CECC held a competition for three (3) Deputy Superintendent positions. The Employer asserts that the then-Deputy Superintendent of Administration at CECC (“Merriam”) advised Ms. Wallace that she needed to compete and be successful in this competition in order to remain at CECC. It is not clear whether Ms. Wallace agrees with this assertion.

g. In any event, Ms. Wallace applied for one or more of these Deputy Superintendent positions. She was not successful. She was advised of this by way of an email from Merriam on December 8, 2021. He concluded that email by saying, “…we can work through next steps upon your return.”

h. Ms. Wallace then went on sick leave. The evidence is not clear whether she worked at all during the next month, but in any event she started an ongoing disability leave (“STSP”) on January 16, 2022. This is coincidental with the end of her last temporary assignment at CECC. She never returned to work.

i. It is common ground that, had she not commenced disability leave, the Employer’s expectation was that Ms. Wallace would return to her home position on or about January 17, 2022. She was aware of that prior to the start of her STSP.

j. Ms. Wallace advised the Employer that she was physically unable to drive the 2 ½ hours commute each way from Peterborough, where she now lives, to Penetanguishene, where her home position is, due to her medical condition.

k. Starting on December 13, 2021 Ms. Wallace submitted medical notes from various doctors regarding her fitness to work and her fitness to make the long commute. The medical advice was not always consistent. The Employer responded with various requests for clarification. These included several questionnaires which the Employer requested be completed by Ms. Wallace’s treating physicians.

l. The parties were unable to come to agreement either as to any accommodation involving another position at CECC or elsewhere, or whether Ms. Wallace was able to commute to CNCC to return to her home position.

m. Without coming to any resolution of those issues and while Ms. Wallace remained on leave, she submitted her retirement papers to take effect July 30, 2022. She asserts this was done against her will.

27On the record before me, it is unclear as to precisely when Ms. Wallace was advised that her temporary assignment to CECC was coming to an end. There is no documentation showing that she was advised before December 8, 2021. The email of that date advising her that she was not successful in the competition does not clearly state that that meant the temporary assignment was about to end.

28Despite that lack of clarity, it is common ground that, had she not commenced sick or disability leave, the Employer’s expectation was that Ms. Wallace would return to her home position on or about January 17, 2022. She was aware of that before she began her STSP at that time.

29She knew that she would then be expected to attend work in Penetanguishene if she was not on some kind of leave. In an email to Superintendent Felicia Hooper dated March 9, 2022, Ms. Wallace recapped events as follows:

I was off on sick leave for three weeks, January 14, 2022 to February 9, 2022 Using my sick time and vacation time as the employer refused to accommodate me by letting me continue to work at Central East Correctional Centre (CECC). CECC is close to my home and only a 30 minute drive for me so this would greatly improve my pain for working. (emphasis added)

30It is therefore clear that Ms. Wallace became aware of the working condition or term of employment giving rise to the first element of her complaint no later than January 16, 2022, when she began her STSP leave. She was then aware that the temporary assignment at CECC had come to an end. She was aware that she was expected to report for work the next day, assuming she was fit to work, at her home position in Penetanguishene. The complaint crystalized by then, at the latest. This is the latest date that the 14 day clock began ticking.

31As more than 14 days expired between January 16 and April 6, 2022, when the NOP was given to the Employer, it was untimely. It was not given in accordance with section 8(4) of the Regulation. The Board therefore does not have jurisdiction to consider this element of the Complaint.

The Other Accommodation Elements of the Complaint

32The above findings do not end the matter. The third main element of the Complaint involves Ms. Wallace’s allegation that from and after January 17, 2022, her accommodation requests were not properly dealt with by the Employer. She alleges that she had, “… no response since January 17, 2022 so I am sitting home willing to work.” She identified work that she felt was available and that she was qualified to perform. She made the further allegation that OPSEU members were accommodated “immediately pending documentation and it has been almost 3 months waiting for me.” [sic]

33In essence, Ms. Wallace asserts that, quite apart from the decision to end her temporary assignment on or about January 16, 2022, the Employer has not fulfilled its duty to accommodate to the point of undue hardship, in accordance with the Human Rights Code, RSO 1990, c.H.19 as am. and its own policies, she asserts that this constitutes discrimination, including differential treatment as compared with members of OPSEU.

34A different analysis regarding the timeliness of the NOP must be applied to this element of the Complaint.

35On its face, the NOP addresses the interactions – or perceived lack of response from the Employer -- between January 17, 2022 and the date of the NOP. It speaks in the present tense, to recent events. Ms. Wallace states that, “I have asked again to be accommodated closer to my home, CECC, with no response since January 17, 2022 so I am sitting home willing to work. There are 4 deputy positions open at this time that are being covered by 2 sergeants, 1 staff sergeant and a volunteer coordinator. I would think that a confirmed deputy would take priority over a union employee or a sergeant…” Her NOP goes on to state, “My situation has not changed; however it is more critical now that I be accommodated….” (emphasis added)

36Furthermore, in the above-mentioned email to Superintendent Felicia Hooper dated March 9, 2022, Ms. Wallace had re-stated her request for accommodation. She stated as follows:

I am writing this letter to submit a request for accommodation in my workplace. I have pain in my knees and my back. Prolonged sitting and standing is causing increased pain and is decreasing my mobility. I would like to request, again,

accommodation to help with my disability and decrease the pain caused by my back and knee conditions by working closer to home.

37On March 15, 2022 the Employer provided Ms. Wallace with a questionnaire to be completed by her orthopaedic surgeon. On April 1, 2022 she returned that questionnaire completed by the doctor. The parties are not in agreement, it appears, as to the conclusions that should be drawn from that medical evidence in the context of the medical evidence previously submitted by Ms. Wallace.

38On April 6, 2022, the same date that the NOP was given to the deputy minister, Ms. Wallace advised Superintendent Felicia Hooper that she required family status accommodation related to the care of her father, who had been diagnosed with cancer and was undergoing treatment.

39It is therefore clear that as of the date of the NOP, there remained live issues regarding Ms. Wallace’s requests for accommodation, on grounds of both disability and family status. While the original temporary transfer had come to an end and that was no longer a live issue as of April 6, 2022, Ms. Wallace was still pursuing other avenues of accommodation at that time. Communications were ongoing. There were still live issues as to whether Ms. Wallace qualified for other accommodations, and whether the Employer was making sufficient efforts to accommodate. There was a live issue as to whether the Employer was, at the time of the NOP, treating Ms. Wallace differently than other employees represented by OPSEU.

40The NOP and this Complaint are therefore not untimely with respect to this third element of the Complaint, i.e. whether the Employer fulfilled its duty to accommodate on the basis of disability and family status, after the temporary transfer ended on or about January 16, 2022.

Conclusion

41To summarize, I have concluded as follows:

a. The Board does not have jurisdiction to deal with the first element of the Complaint, the allegation that Ms. Wallace’s temporary assignment as a Deputy Superintendent at CECC was improperly terminated on or about January 16, 2022, since the NOP was not given in a timely manner in accordance with the Regulation regarding that element. The Employer’s preliminary objection regarding that element is upheld.

b. The Board does not have jurisdiction to deal with the second element of the Complaint, the allegation regarding harassment by a peer, which allegedly occurred on October 28, 2021, since the NOP was not given in a timely manner in accordance with the Regulation regarding that element. The Employer’s preliminary objection regarding that element is upheld.

c. The Board has jurisdiction to deal with the third element of the Complaint, i.e. whether the Employer fulfilled its duty to accommodate on the basis of disability and family status after the temporary transfer ended on January 16, 2022. The Employer’s preliminary objection regarding that element is dismissed.

42This case is accordingly referred to the Registrar, to schedule a Case Management Conference with the parties to determine a hearing process to most effectively deal with the remaining issues.