Thomas v. The Crown in Right of Ontario (Ministry of the Solicitor General), 2022 CanLII 31381

PSGB# P-2021-1708

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Thomas

Complainant

• and -

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

Employer

BEFORE

Thomas Kuttner Vice Chair

FOR THE COMPLAINANT

Osborne G. Barnwell Barrister & Solicitor

FOR THE EMPLOYER

Peter Dailleboust Treasury Board Secretariat Legal Services Branch Counsel

HEARING

January 11, 2022 and January 23, 2022 (written submissions)

Decision

Introduction

1This is a complaint filed on November 1, 2021, pursuant to subsection 4(1) of O Reg 378/07 (“the Regulation”) under the Public Service of Ontario Act, 2006, SO 2006 c.35 Sch A (“the Act”). In it, the Complainant, Glendon Thomas, a Black Sergeant (Operational Manager 1) at the Toronto South Detention Centre (“TSDC”), alleges that the Employer unfairly dismissed him as an act of reprisal, being someone who spoke out against systemic anti-Black racism and abuse of power by management at the TSDC.

2The Employer, by way of letter dated September 13, 2021 dismissed Sergeant Thomas from his employment as a result of his alleged engaging in an excessive use of force against an inmate at the TSDC on January 9, 2021, and as well for allegedly orchestrating and taking part in a concerted job action in the form of a sick leave call on the weekend of February 5-7, 2021, with other Sergeants at the TSDC.

3A case management conference call was held in this matter on January 4, 2022. At that time the Employer raised the issue of the jurisdiction of the Board to entertain this matter inasmuch as the notice of proposal to file a complaint was not given to the Deputy Minister within the timeframe stipulated at section 8(4).1 of the Regulation. By agreement of the parties this jurisdictional issue was to be determined on the basis of written submissions, prior to proceeding any further with this matter. This Decision addresses only the jurisdictional issue. For the reasons here given, the Board concludes that it has no jurisdiction to entertain this complaint.

Employer Submissions

4The letter of dismissal was emailed to Mr. Thomas on September 13, 2021, with a copy to Mr. Barnwell, his counsel. It was also couriered to Mr. Thomas’s address on September 14,2021. On September 15, 2021 the TSDC Deputy Superintendent of Administration, Ms. Nassanga-Sessanga, received correspondence from Mr. Barnwell, on which Mr. Thomas was copied, advising that he was aware of the dismissal decision.

5This September 15th correspondence was not sent to the Deputy Minister or her delegate, nor did it mention a notice of proposal to file a complaint. Although it is plausible that Mr. Thomas and/or his counsel were aware of the dismissal on September 13th, on the most generous calculation, the date for when Mr. Thomas received notice of his dismissal was September 15th, the date of correspondence from Mr. Barnwell to Ms. Nassanga-Sessanga.

6Mr. Thomas advised Ms. Karen Ellis, Deputy Solicitor General, Correctional Services of his notice of proposal to file a complaint by email letter on September 30, 2021. This was one day beyond the date on which it ought to have been filed — September 29, 2021. Accordingly, Mr. Thomas’s complaint is out of time and as such the Board has no jurisdiction to hear it.

7Mr. Thomas did not comply with mandatory statutory timelines and notice requirements. The relevant provisions of the Regulation are sections 4, 8(1).1, 8(4).3 and 9(1), (3) and (5). The timelines set out in sections 4, 8 and 9 of the Regulation are mandatory and the Board has no jurisdiction to extend them. The Board jurisprudence is clear that the time limits under section 8 of the Regulation start to run once the Complainant becomes aware of the circumstances giving rise to the complaint.

8The principal procedural failing on the part of Mr. Thomas was to file his notice of proposal to file a complaint to the Deputy Minister fifteen (15) days after becoming aware of the term of employment giving rise to the complaint — namely his dismissal — whereas subsection 8(4).1 of the Regulation mandates that such notice to the Deputy Minister be given within fourteen (14) days of becoming so aware.

9The September 15th email from Mr. Barnwell to Ms. Nassanga-Sessanga did not meet the obligations imposed by sections 4 and 8 of the Regulation. Board jurisprudence has held that, to comply with subsection 8 (1).1, notice of proposal to file a complaint must be given to the Deputy Minister, not to another member of management. As a result of his failure to provide notice to the Deputy Minister of his intention to file a complaint, the Complainant failed as well to comply with the mandatory period for dispute resolution pursuant to section 9 of the Regulation.

10Given these failings on the part of the Complainant, the complaint was filed out of time, and, as the Board has no jurisdiction to relieve against the mandatory time limits, the Board ought to dismiss the complaint.

11Counsel cited in support the following jurisprudence of the Board: Taylor v The Crown in Right of Ontario (MCSCS) PSGB No P-2016-2281; Ashdown et al v. The Crown in Right of Ontario (MCSCS), PSGB No. P-2016-0603; Hasted/Berezowsky v The Crown in Right of Ontario (MCSCS), PSGB No P-2014-2665; LaForest v The Crown in Right of Ontario (SolGen), PSGB No P-2018-3801; Muldoon v The Crown in Right of Ontario (MCSCS), 2011 CanLII 83724 (ON PSGB).

Complainant Submissions

12Mr. Thomas submits that, given the communications as between his legal Counsel and Counsel for the Ministry, Mr. Peter Dailleboust, there should be no doubt that the requirement of a notice of proposal to file a complaint to the Deputy Minister, or more specifically conveying that the termination would be challenged, was communicated within the fourteen (14) day time line stipulated at subsection 8(4).1, and as such the Board is clearly within its jurisdiction to adjudicate the complaint as it sees fit.

13Although Thomas issued his notice of proposal to file a complaint on September 30, 2021, this was basically a formality prompted by his own insecurity. In fact, since his July 27, 2021 e-mail to Mr. Dailleboust, Counsel for Thomas has made it clear that Thomas would challenge the actions of the Employer, as he did explicitly in his Counsel’s email of September 15, 2021 to Ms. Nassanga-Sessanga which was forwarded to Ms. Donata Calitri-Bellus, Superintendent TSDC. That correspondence came to the attention of Mr. Dailleboust and prompted him to respond to Mr. Barnwell by email on September 16, 2021, repeating a request that Mr. Barnwell not email his clients on this file directly but correspond through him.

14The Employer’s argument that the interpretation of the timeline provisions of the Regulation must be strict, allowing no deviation from their mandatory language, is inconsistent with the modern approach to statutory interpretation. Interpretation of legislation should not defeat the purpose of a statute or render some aspect of it pointless or futile. An Act is to be interpreted as remedial and given such fair, large and liberal interpretation as best ensures the attainment of its objects. Any ambiguity should be resolved in favour of the person whose right of action is being taken away.

15The Regulation provides access by non-unionized employees to a summary process wherein their employment disputes with the Employer can be dealt with expeditiously, and the remedies of reinstatement and damages made available to them. Unreasonably denying Thomas access to process before the Board on the basis of a strict interpretation of the timeline provisions of the Regulation would not be fair or just. If the Board does not take jurisdiction Thomas would have to engage the expensive route of litigation before the Superior Court of Justice, where the length of time to receive justice would be inordinately long, and where the remedy of reinstatement is unavailable.

16Given the chain of emails on September 15 and 16, 2021, the Employer cannot say that it had not received at that time notice of the Complainant’s intention to file a complaint before the Board. The Employer was aware at that time that Thomas considered his termination to have been illegal, and that he would challenge it. Thomas’s Counsel was advised by Counsel for the Ministry that correspondence should flow through his Office. The facts of this case drive the result that Thomas has fully complied or has substantially complied with the timeliness provisions of the Regulation.

17Counsel cited in support the following jurisprudence and legislation: The Statutory Powers Procedures Act, RSO 1990, c. S22; The Legislation Act, SO 2006, c.21, Sch F; Verdan v Toronto Dominion Bank 1996 CanLII 186 (SCC), [1996] SCJ 50, Ordan Estate v Grail 1998 CanLII 771 (SCC), [1998] 3 SCR 437; Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65; Dixon v The Crown in Right of Ontario, (Solicitor General), 2020 CanLII 74279 (ON PSGB).

Analysis and Conclusion

18There is no dispute over the facts related to the timeliness of this Complaint, but deep division between the parties as to the legal consequences flowing from them. Mr. Barnwell’s submits that the Board look to the substance of the exchanges of correspondence between himself and Counsel for the Employer, Mr. Dailleboust, and not simply to its form to conclude that the timeliness provisions of the Regulation have been met.

19Mr. Barnwell would have the correspondence between himself and Mr. Dailleboust have the effect that the latter was acting throughout as a delegate of the Deputy Minister for all purposes of the Regulation. Mr. Dailleboust denies that this is so, and points out that the September 15, 2021 correspondence from Mr. Barnwell was, in any event, addressed not to him but to Ms. Nassanga-Sessanga, and forwarded on to Ms. Calitri-Bellus both senior managers at the TSDC. Nor does that correspondence purport to be “notice” of proposal to file a complaint.

20The September 15th correspondence reads in relevant part:

I am really saddened at this development. Truly this is a travesty. Frankly, I am in shock that after recalling the manner in which this interview went and the sense that the questioners gave the impression that the conduct of Sgt Thomas was appropriate in the circumstances. How then can a dismissal be justified following that meeting? Truly, this is a miscarriage of justice and should be investigated.

Surprisingly, this has affected me more than any case in which I have been involved as it is so crystal clear that this termination is contrived, unfair and is reprisal in purpose and nature. It is rather difficult to ignore as it is downright unjust and reflects the underbelly of a system which

has no interest in doing the right thing.

Mr. Thomas does not have the fortitude to deal with this matter going forward. I therefore request on his behalf and as his lawyer, that you forward to me all documents requiring his signature and whatever else he must do to deal with this rather disheartening and shocking development.

21Viewed most generously, this correspondence could be said to be notice of the intention on the part of Thomas to challenge his dismissal. But can it be said to be notice of proposal to file a complaint before the Board within the meaning of subsection 8(1).1? That section stipulates:

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

1. A complainant who, at the material time, worked in a Ministry shall give the notice to his or her deputy minister.

Here, notice has been given to two senior managers at the TSDC and even accepting that it was forwarded on to Mr. Dailleboust, he was acting throughout as Counsel to the Ministry, not as a delegate of the Deputy Minister.

22The Board has held consistently that notice of a proposal to file a complaint must be given to the Deputy Minister. Notice to a Ministry manager does not suffice. In Ashdown et al, supra, the Board noted that subsection 8(1).1 of the Regulation:

…requires that notice of proposal to file a complaint be given to the appropriate Deputy Minister. It is not sufficient that information be relayed to an Associate Deputy Minister via another manager. This notice of proposal to file a complaint is the first formal step leading to proceedings before the Board. It is not merely an internal communication between employer and employee. [at para. 20].

That Mr. Barnwell was or ought to have been aware that more formal notice was required, can be deduced from his request “that you forward to me all documents requiring his signature and whatever else he must do to deal with this rather disheartening and shocking development.”

Moreover, such formal notice of proposal to file a complaint was in fact given by Mr. Thomas in his extensive correspondence to Deputy Minister Ellis dated November 1, 2021, but received on September 30, 2021.

23The provisions of subsection 8(4).1 of the Regulation stipulate:

8(4) The notice must be given within the following period:

1. For a complaint about dismissal for cause, within 14 days after the complainant receives notice of the dismissal.

There is no dispute that Mr. Thomas’s notice of proposal to file a complaint was filed fifteen (15) days after he received notice of the dismissal — one day late. Counsel for Mr. Thomas argues on several grounds that the Board ought nevertheless to take jurisdiction and entertain this complaint. First, given his past experiences with management at the TSDC, Thomas wished to make sure that he personally write to the Deputy Minister. His September 30th notice offered substance about the concerns regarding the termination and should be seen as an addendum to his Counsel’s previous notice of September 15th. Moreover, Thomas sincerely believed that he was on time.

24Counsel cites the Dixon case supra as an example of the Board taking a modern approach to interpretation of the Regulation as laid down by the Supreme Court of Canada, most recently in Vavilov supra. Yet here, rather than subscribe to an interpretation which satisfies the remedial objective of the Act and the Regulation — namely to offer a forum of relief for non-unionized employees to have their grievances heard — the Employer seeks to deny the employee such access on technical grounds.

25Counsel points out that in Dixon supra, the Board commented:

[43] This case, and a companion one, being released at the same time, Beach and The Crown in Right of Ontario (Ministry of the Solicitor General) are cases that illustrate the confusing wording and difficulty of application of the wording of the timeliness provisions of the present regulation. The time lines are written in complicated language, with a dispute resolution period of variable length, which can make it difficult to know when it is too late, or even too early, to forward a complaint to the PSGB. This, together with the lack of legislative provision for the extension of time lines in appropriate cases, can lead to unnecessary frustration of parties seeking to solve serious workplace problems, leaving a problem unaddressed, to the detriment of the morale of all concerned. The lack of “user-friendliness” leads to the extensive use of time and resources, including those of the parties and the Board’s administrative staff and adjudicators, in explaining and dealing with technical objections which might be better used for other purposes, including solving the underlying problem that gave rise to the complaint.

Yet, in the following paragraph the Board noted:

[44] The Board has nonetheless applied the regulation’s wording consistently in light of the mandatory time lines, in cases where the facts were clear that a breach had occurred. As discussed above, that is not the case here.

26The cases obliquely hinted at in Dixon, in which the Board has stressed both the mandatory nature of the timelines found in the Regulation and the lack of grant to it of power to extend them, are myriad. For example, the Board noted in Barnes v Ontario (MCSCS), 2017 CanLII 25427:

[8] The Board has previously determined that this 14-day time limit for providing a Notice of proposal to file a complaint is mandatory and that the Board has no discretion to relieve against the time limit. A failure to adhere to the time limit deprives the Board of jurisdiction to entertain the complaint. See the Board’s decision in St. Amant v Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4673 (ON PSGB) and paragraph 28 of Bourgeault v Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 84294 (ON PSGB).

And more recently, to the same effect, see the decision of the Board in Bazger v Ontario, 2021 CanLII 71621 (ON PSGB). Here, the underlying facts are clear, and there is no basis to depart from the consistent Board jurisprudence on the mandatory nature of the timelines and lack of discretion on the part of the Board to extend them.

27For the foregoing reasons, the Board concludes that it has no jurisdiction to entertain the within Complaint. This complaint is dismissed.