PSGB# 2021-0715

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Gregory

Complainant

• and -

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

Employer

BEFORE

Allen Ponak

Vice Chair

FOR THE COMPLAINANT

Selwyn A Pieters Selwyn A Pieters Law Office Counsel

FOR THE EMPLOYER

Paul Meier Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

February 24, 2022; April 6 and 22, 2022

Decision

ISSUE

1Ms. Monique Gregory is a sergeant at the Toronto South Detention Centre (TSDC) and has been employed by the Ministry of the Solicitor General since 2008. She is Black and a single mother to a seven-year-old son. Through her lawyer, Mr. Selwyn Pieters, Ms. Gregory filed a Notice of Proposal to File a Complaint on May 9, 2021, followed by the complaint itself on June 24, 2021 (Form 1). The complaint alleged discrimination based on "family status, sex, marital status, race, colour, ancestry, ethnic origin, and disability" and accused the Ministry of reprisal. Ms. Gregory filed a similar complaint with the Human Rights Tribunal of Ontario (HRTO) on May 10, 2021.

2In its Form 2 response on September 29, 2021, the Employer denied the allegations and raised a preliminary objection to the timeliness of the complaint. It argued that the Complainant had failed to meet the time limits set out in Ontario Regulation 378/07 under the Public Service of Ontario Act (PSOA) and its Regulation and, therefore, the complaint should be dismissed on that basis.

3Following a case management conference call on August 23, 2021, mediation was held by video conference on November 29, 2021 and January 13, 2022 but the parties were unable to reach a resolution of the complaint. It was agreed that the Employer's preliminary objection would be addressed through written submissions and this award is devoted exclusively to the Employer's objection.

CONTEXT AND BACKGROUND

4It is useful to briefly set out some basic background facts to provide the context for the submissions. In the foregoing review, I am relying primarily on the Complainant's Form 1 rendition of events which, for the purposes of this preliminary matter only, I am accepting as if proven.

5The Complainant worked as a correctional officer from 2008 to 2018, became an acting sergeant in 2018, and was promoted to Institutional Training Manager at the rank of sergeant in 2019. Her son was born in 2014 and, by 2020, was attending elementary school with a pre- and post-school day care program. Some scheduling accommodation was arranged with the Employer to enable the Complainant to drop off and pick up her son.

6On March 11, 2020, the Complainant underwent surgery. A post-operation assessment, necessary for a return to work, was scheduled for several weeks after the surgery. Before the assessment could take place, COVID-19 shut down everyday life. The post-operation assessment was postponed and her son's day care program was closed indefinitely. At the time, the severity of the COVID-19 outbreak was unclear nor was it known how long the COVID-19 outbreak would last or how disruptive it would prove.

7In early July 2020, the Complainant was medically cleared to return to work but was unable to arrange daycare for her son given the widespread closures of such facilities. She requested that she be allowed to work remotely as an accommodation but the request was denied by the Employer on the grounds that operational needs required that correctional employees physically attend work. Throughout July, the Complainant was in communication with TSDC senior managers in an attempt to find a solution. At the end of July, the Complainant emailed the Deputy Solicitor General of Correctional Services, Ms. Deborah Richardson, outlining her childcare problems and the need for accommodation and requesting help (Employer Tab C). Neither Ms. Richardson nor a designate replied, prompting a second email on September 23, 2020. Again, there was no proximate response.

8In October and November 2020, the Complainant emailed Prime Minister Trudeau, Premier Ford, the offices of several cabinet ministers, and her Toronto city councillor about her situation and the absence of daycare. The Complainant received a reply from Ms. Karen Ellis, the Ontario Assistant Deputy Minister, Institutional Services, in late November 2020 advising her to address her concerns to senior TSDC officials (Employer Tab D).

9In the meantime, the Complainant's family doctor had declared her unfit to work due to the physical manifestations of intense stress on July 31, 2020. Subsequent medical notes confirmed her inability to return to work. She was placed on sick leave which reverted to unpaid leave in October 2020 when her sick leave credits ran out. The Complainant then successfully applied for Employment Insurance until her entitlement ran out in March 2021. In April 2021, the Complainant's doctor advised against the Grievor returning to the TSDC because the "toxic work environment" contributed to her stress. The Complainant remains off work as of the date of the award.

10In addition to the issues surrounding childcare, accommodation, and the Complainant's medical fitness to work at TSDC, the Complainant has asserted that her alleged mistreatment by the Employer is motivated by race. The complaint identified a number of Caucasian employees who, over the years, purportedly received favourable treatment by being accommodated for family, religious, and other reasons. In contrast, the Complainant alleged that her requests for accommodation were treated dismissively, demonstrating disparate treatment of a Black woman.

11As a remedy, the Complainant sought placement within a suitable position outside TSDC, compensation for lost wages and benefits, aggravated damages for discriminatory treatment, damages for violation of her Charter rights, and reimbursement of legal fees.

EMPLOYER ARGUMENT

12The Employer argued that the timelines for filing a complaint under the PSOA and its Regulations are mandatory. Failure to adhere to the timelines must result in the Board determining that it lacks jurisdiction to address the merits of the complaint and therefore the complaint must be dismissed. The Employer cited the following PSGB decisions in support of the mandatory nature of the timelines and the implications of failure to meet those timelines: Morris and Ontario Ministry of Community Safety and Correctional Services (2018) CarswellOnt 9734 (Nairn, PSGB) and Taylor and Ontario Ministry of the Solicitor General (2020) CarswellOnt 6504 (Morgan, PSGB).

13According to the Employer, the clock for filing a complaint begins within "14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint" (Regulation 378/07, section 8(4)(3)). The complaint was filed on June 24, 2021. In the Employer's submission, the filing was almost a year too late. In its view, the Complainant's request to work from home because of childcare issues was raised and denied in July 2020 and the Complainant had been advised by several levels of managers that she must report to work. As part of the communication, suggestions about childcare options and scheduling options were provided by several managers. The Complainant was dissatisfied with the responses and emailed Deputy Solicitor General Richardson on July 29, 2020, outlining the substance of her complaint (Form 1, paragraphs 111-112, Employer Tab C). It was clear, the Employer submitted, that by the end of July 2020 the Complainant was well aware of the issues giving rise to her complaint. The 14-day clock began ticking at that time.

14The Employer further pointed out that, contrary to the procedural requirements, the Complainant did not give the Deputy a Notice of a Proposal to File a Complaint or seek a dispute resolution meeting within 30 days, as should have occurred following the crystallization of the issues at the end of July 2020. The Notice of Proposal to File a Complaint was not in fact provided until May 10, 2021. Even if the Complainant's email of July 29, 2020 could be considered "constructive notice", which the Employer disputed, nothing further was done until almost a year later notwithstanding the reply from Assistant Deputy Minister Ellis on November 25, 2020 in which the ADM indicated that the matter had been fully addressed by TDSC management and made it clear that her office would not intervene (Employer Tab D).

15For these reasons, the Employer submitted that its preliminary objection must be sustained, a declaration made that the Board lacked jurisdiction to address the merits, and the complaint dismissed as untimely. In support of its position, the Employer cited the following additional cases: Paul and Ontario (Ministry of the Solicitor General) 2021 CanLII 26625 (Tremayne, PSGB); Ashdown and Ontario (Ministry of Community Safety and Correctional Services) 2017 CanLII 25422 (Nairn, PSGB); Hamilton and Ontario (Ministry of Community Safety and Correctional Services) 2019 CanLII 42439 (Tremayne, PSGB); and, Bazger and Ontario (Ministry of the Solicitor General) 2021 CanLII 71621 (Smeenk, PSGB).

COMPLAINANT ARGUMENT

16The Complainant advanced several arguments as to why the complaint should not be barred by any alleged timeliness violations. One argument related to the implicit obligations of Deputy Solicitor General Richardson after the Complainant emailed her on July 29, 2020 outlining the issues in detail and seeking assistance. It was submitted that the email should have been accepted as a constructive "Notice of Proposal to File a Complaint" and that Deputy Solicitor General Richardson had failed to appropriately advise the Complainant how to address the matter through the PSGB. The Complainant elaborated as follows (Complainant brief, paragraphs 17 – 19):

The Deputy Solicitor General was in a position to appreciate that this complaint was a matter for the PSGB and to take action accordingly, including advising Ms. Gregory to pursue such a remedy. Instead, Ms. Gregory's concerns were substantially ignored.

It is therefore submitted that the timeliness issue raised by the Employer is without grounds, the Employer having been substantially and constructively notified of the complaint at least as early as July 29, 2020.

Moreover, it is submitted that it would be neither fair nor just for Ms. Gregory's claim to be barred on the basis of delay of her Application following the giving of constructive notice, bearing in mind the Employer's consistent lack of transparency and refusal to provide an accommodation nor aid as to the process, despite having been notified of the complaint.

17A second argument alleged waiver by the Employer. This position was based on the agreement by the Employer to engage in two mediation sessions and to defer a response to the HRTO complaint. In the Complainant's view, these steps signified that the Employer accepted the jurisdiction of the Board to arbitrate the merits of the PSGB complaint.

18The Complainant's main argument, however, was that even if the Board concluded that the complaint was untimely, it could not be barred by the statutory timeline requirements under the PSOA and its Regulations because the complaint was grounded in the Charter of Rights and Freedoms. The Complainant reasoned as follows (Complainant brief, paragraphs 20 – 25):

The Ontario Court of Appeal has held that Charter claims against state actors should not be subject to the same statutory or regulatory limitations rules as other claims, being grounded in fundamental constitutional rights which the state cannot escape by creating statutory timelines.

Prete v. Ontario (1993), 1993 CanLII 3386 (ON CA), 18 C.C.L.T. (2d) 54, 18 C.R.R. (2d) 291, 16 O.R. (3d) 161 (Ont. C.A.) leave to appeal to Supreme Court of Canada refused 110 D.L.R. (4th) vii, 87 C.C.C. (3d) vi, 20 C.C.L.T. (2d) 319 dealt with an action for Charter damages under ss. 7 and 24(1) following an unsuccessful prosecution for murder. The case raised the issue of whether a Charter action under s. 24(1) could be barred by the relevant limitations period, in that case, a six-month limitation period contained in section 11(1) of the Public Authorities Protection Act.

The Court, in holding that the claim could not be so barred, based its analysis on reasoning which applies to all limitation periods. Essentially, the Court concluded that a judge at trial should be able to decide if a case is brought too late for pursuing a Charter remedy rather than by applying a statutory limitation period.

The Court, citing Lamer J in Nelles v. Ontario, 1989 CanLII 77 (SCC), [1989] 2 S.C.R. 170, explained at para. 6 that "a statutory enactment cannot stand in the way of a constitutional entitlement" and further stated at para. 13, "The purpose of the Charter, in so far as it controls excesses by governments, is not at all served by permitting those same governments to decide when they would like to be free of those controls and put their houses in order without further threat of complaint."

Accordingly, the Court concluded that both section 5(6) of the Proceedings Against the Crown Act and section 11 of the Public Authorities Protection Act had no application in a Charter infringement case. However, while the case pertained to these specific statutory provisions, it is clear from the Court's reasoning that the issue before the Court was a broad one, being "the present consideration of statutory limitations to be imposed on a Charter remedy" in general.

The holding in Prete therefore establishes that statutory limitations periods do not per se bar claims for damages under the Charter. Prete remains good law in Ontario and has not been overturned, with leave to appeal refused by the Supreme Court of Canada. The Complainant's claim is such a case, and is therefore not barred by ss. 10(1) or 8(4)(3) of Regulation 378/07 made under the Public Service of Ontario Act as asserted by the Employer. There is no reason why a limit on the time to file such complaint should bar a Charter infringement complaint any more than a limitation period should bar an action.

19In advancing this argument, the Complainant pointed to the broad and important social issues being raised by the complaint – anti-Black racism, family status accommodation, and the intersection of race and gender. These are issues, it was submitted, that are central to Canada's evolution as a just society and the right to have these matters adjudicated should not be stymied by a mere technicality. The Complainant elaborated (Complainant brief, paragraphs 35 & 36):

Ms. Gregory has alleged that the treatment of her case was informed by anti-Black racism, implicit bias and/or racial stereotyping. The jurisdictional issue asserted by the Employer should not be allowed to function as a means to foreclose her ability to challenge the discrimination she has experienced, thereby helping to see that anti-Black racism be "confronted, mitigated and, ultimately, erased…" as called for in Morris. In such cases, where the Charter is being invoked, a full hearing of all relevant, necessary evidence to illuminate the facts of the case becomes even more crucial than it may otherwise be.

In all of this, access to justice is key. The Supreme Court have recognized that ensuring "access to justice is the greatest challenge to the rule of law in Canada today." (Hryniak v. Maudlin, 2014 SCC 7)

20The Complainant acknowledged that a human rights complaint on the same matters had been filed with the HRTO but took the position that the PSGB remained the most appropriate forum for the complaint given the PSGB's central role in addressing public service work disputes and the specialized expertise of its adjudicators on precisely the kind of issues being raised in the complaint. This type of expertise had been recognized by Ontario courts: Rivers v. Waterloo Regional Police Services Board (2019) ONCA 267; and, Donovan v. Waterloo (Police Services Board) 2022 ONCA 199.

21In short, the Complainant urged the Board to find that there was no jurisdictional bar to hearing and ruling on the merits, characterizing the Employer's position as unreasonable and unjust.

EMPLOYER REPLY

22The Employer responded that the Charter does not operate to enable arbitrators to ignore statutorily established mandatory timelines. It accepted that PSGB arbitrators may have the authority to apply Charter values as appropriate to the merits of a case over which the arbitrator has jurisdiction but submitted that the Charter values could not be applied to confer jurisdiction where none existed – "if the Regulation's mandatory timelines are not met, the PSGB is without jurisdiction to entertain the complaint" (Employer reply, paragraph 5). In the Employer's submission, conforming to the timelines was a precondition to the PSGB assuming jurisdiction. Once jurisdiction was confirmed, only then, the Employer argued, could the complaint be examined in light of the Charter. In the current case, the Complainant had failed to meet the time requirements for filing her complain leaving the Board without jurisdiction to consider the merits of the complaint, whether through a Charter lens or based on other criteria. The Employer cited St. Amant v. Ontario (Ministry of Community Safety and Correctional Services), 2013 CarswellOnt 1025 (Carter, PSGB) for the proposition that failure of a complainant to comply with the mandatory timelines left the Board without jurisdiction.

23Citing section 24(1) of the Charter, the Employer emphasized that anyone alleging a violation of Charter rights had the ability to apply to "a court of competent jurisdiction" to obtain an appropriate remedy. This meant, according to the Employer, that only if a court or tribunal's jurisdiction could be established could Charter values be considered. The Employer cited several court decisions in support of the proposition that the Charter could not confer jurisdiction where none existed: R v. Mills 1986 CanLII 17 (SCC), [1986] 1 SCR 863; R v. Conway [2010] SCC 22; and, Ontario v. 974649 Ontario Inc. [2001] SCC 81. The Employer argued, in short, that the Charter "does not operate to expand the PSGB's pre-existing statutory jurisdiction, fixed by the Legislature, and does not imbue the Board "with the power to alter the jurisdictional consequences" of a failure to comply with Regulation's mandatory timelines" (Employer reply, paragraph 23).

24The Employer submitted that the Ontario Court of Appeal's decision in Prete, relied on by the Complainant as a basis for overcoming of the PSGB's statutory time limits in Charter cases, was distinguishable. In its submission, Prete turned on the inherent jurisdiction of the provincial court in the matter before it and could apply equitable principles (in that case, the doctrine of laches) to overcome statutory guidelines. In contrast, the Employer argued, the Board had no inherent jurisdiction "and must stay within the limits derived from its enabling statute", the PSOA (Employer reply, paragraph, 29). The PSGB had no jurisdiction, in the Employer's view, to alter the statutory time limits. Furthermore, according to the Employer, a more recent decision of the Ontario Court of Appeal (Alexis v. Darnley, 2009, ONCA 847) expressly suggests that Prete "has been overtaken" and that it no longer can provide a basis, if it ever did, for overturning statutory or regulatory time limits (Employer reply, paragraph 33).

25Finally, the Employer rejected the other arguments advanced by the Complainant. It noted that in agreeing to mediation, the Employer had expressly reserved the right to advance its preliminary position on timeliness and this position had been well known, and documented, when mediation had been undertaken. There had been no waiver. The fact that the Complainant's HRTO case had been deferred pending mediation could not alter that fact. With respect to the view that the PSGB is the best forum for the merits of the complaint, there is no basis in law, the Employer contended, to use that fact, even if true, to claim jurisdiction. The Employer noted that the Complainant still had a human rights complaint that she could pursue, but even if none had been filed, the fact that the PSGB was an appropriate forum could not somehow serve as platform to create jurisdiction.

26The Employer reiterated its request that the complaint be rejected as being out of time.

TIME LIMITS UNDER PSAO REGULATION 378/07

Section 8(4)(3)

For a complaint about a working condition or a term of employment, within 14 days after the complainant becomes aware of the working condition or term of employment giving rise to the complaint.

Period for dispute resolution

9(1) A complainant is not entitled to file a complaint with the Public Service Grievance Board until the expiry of the period provided under this section for dispute resolution.

9(5) If the deputy minister or chair of the Public Service Commission, as the case may be, or his or her designate does not meet with the complainant within 30 days after receiving the notice, the period provided for dispute resolution expires after the notice was given to the deputy minister or chair.

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.

DECISION

27I am sympathetic to the Complainant's circumstances but nevertheless have no choice but to conclude that I lack jurisdiction to hear and decide the merits of her complaint. The complaint was filed out of time and the PSAO does not allow PSGB adjudicators the discretionary authority to waive timelines as do some labour relations statutes (including the Ontario Labour Relations Act). For reasons set out below, neither the Charter argument nor any of the other arguments advanced by the Complainant allow me to conclude that the timelines under which the PSGB operates should not apply.

28I begin by asking when did the 14-day clock start with respect to the current complaint. The complaint alleges that the Complainant has been subject to discrimination based on family status, mental health, and race, colour, ancestry, and ethnic origin. The starting point is the date the complainant "becomes aware of the working condition or term of employment giving rise to the complaint" (Regulation, section 8(4)(3)). Throughout spring and early summer 2020, the Complainant communicated her concerns, particularly related to childcare and her recovery from surgery, with TSDC management. Dissatisfied with the responses she was receiving, the Complainant then emailed Deputy Solicitor General Richardson on July 29, 2020 (Employer document C). In the email, the Complainant outlined her struggles with the aftermath of the surgery, childcare challenges, her need for accommodation, and the impact of these matters on her mental and physical health. Given her childcare needs, she wished to work remotely and her managers consistently rejected this proposal. From my own reading of this email, I am satisfied that as of July 29, 2020 the Complainant was aware of the working conditions and terms of employment that form the essence of her complaint. The Notice of Proposal to File a Complaint was not filed until May 10, 2021 and the complaint was not filed until June 24, 2021. Thus, if the clock started July 29, 2020, the complaint is untimely by more than 9 months.

29I am aware that the Complainant did not receive a reply to her July 29th email from Ms. Richardson (or her surrogate) until November 24, 2020 when a response was received from Assistant Deputy Minister Ellis (Employer document D). Ms. Ellis advised the Complainant that her concerns were to be addressed through senior management at TSDC. Even if I accepted¹ that it was not until the letter from Ms. Ellis that the Complainant's knowledge crystallized that her working condition and terms of employment concerns would not be addressed by officials more senior than TSDC management, the complaint is still untimely. If the 14-day clock started on November 24, 2020, it was still many months before the Notice of Proposal and formal application were filed. This remains true even if the Complainant's letter to Ms. Richardson on July 29, 2020 can be characterized as "constructive Notice of Proposal to File a Complaint"² because 30 days following such notice, if no reply is received, the clock for formally filing a complaint resumes under section 9(5) of the Regulation.

30Accordingly, whether July 29, 2020 or November 24, 2020 is the starting point, or the July 29th letter can be construed as a constructive Notice of Proposal, the complaint was filed out of time. The PSGB case law is unambiguous that the statutory time limits are mandatory and that the failure to file a complaint within the specified time limits leaves the adjudicator without jurisdiction over the merits of the complaint. In decision after decision, adjudicators have concluded that the Board has "no discretion to extend the time lines, regardless of the validity, importance or controversial nature of the complaint" or how "reasonable or sympathetic" might be the reasons for not meeting the time limits (Bazger, paragraphs 27 & 29). As stated by Vice-Chair Tremayne in Paul, "if the notice is filed outside of that time limit, the Board is without jurisdiction to deal with the complaint" (paragraph 46). The Complainant was unable to point to any case law that suggested a different result from failure to meet the timelines set out in the PSAO and its regulations. On its face, therefore, I must conclude that I lack jurisdiction to address the merits of the current complaint.

31This does not end the matter, however, as the Complainant advanced several arguments as to why, even if I determined that the mandatory timelines were violated, I should still find that I did have jurisdiction over the merits. Before turning to the primary submission based on the Charter, I will address three ancillary positions.

32First, the Complainant argued that Ms. Richardson ought to have advised the Complainant to seek a remedy through the PSGB when she received the July 29, 2020 email from the Complainant asking for help. It was pointed out that no such advice was given and there was no reply to the email for almost four months. I share the Complainant's dismay at the length of time for a reply (even accepting the disruptive impact of the initial months of COVID) nor do I disagree that a prompt response along with information about the PSGB complaint process would have been desirable in the circumstances. The Complainant's email was a cry for help that was ignored.³

33That said, I find nothing in the PSAO, the Regulations, or case law that requires senior officials to draw the PSGB complaint system, with its time limits, to the attention of eligible employees who may have an employment related concern. While there was no submissions or evidence on this point, I am satisfied that ultimately it is up to employees who wish to file complaints to know the rules or educate themselves about the rules. The complaint system is not a secret and information was available on the PSGB website, including information about the mandatory time limits. The fact that Ms. Richardson (or others) did not direct the Complainant to the PSGB complaint process does not provide a basis for disregarding the complaint process time limits.

34A second position advanced by the Complainant is that the Employer had waived any timeliness or procedural defects in the complaint process by agreeing to mediation on the merits of the complaint. I reject this position as it was made abundantly clear at the time by the Employer that, in agreeing to mediation, it retained the right to pursue its preliminary objection on timeliness that it had initially raised in its Form 2 response to the complaint. This is clear from the discussions that occurred at the time the parties agreed to mediate and is reflected in a summary email from me that was sent to the Complainant and counsel following a case management conference call on August 23, 2021. In the email, I wrote that the "Employer has served notice that it has a preliminary objection based on the timeliness of the complaint. Should mediation not result in a full settlement of the dispute, the Employer intends to argue that the arbitrator lacks jurisdiction to address the merits of the complaint because the complaint was filed too late" (Employer document D). No response was received from the Complainant or her counsel objecting to these terms under which mediation was undertaken on November 29, 2021 and January 13, 2022. There is absolutely no basis for the claim that the Employer waived its right to make a preliminary objection on timeliness by participating in mediation over the merits of the complaint. I add that if such a position prevailed, that would effectively end the mediation of the merits of many labour and employment disputes.

35Third, it was submitted that upholding the Employer's timeliness objection would deprive the Complainant of having the merits of her case heard before the PSGB, the tribunal created for the express purpose of adjudicating such disputes and with unique expertise on such matters. It may well be that the PSGB is the ideal forum for adjudicating the Complainant's allegations but that fact, in and of itself, is insufficient to overcome an untimely application. In creating the PSGB, the legislative and regulatory scheme places tight windows on when complaints could be filed. Whether or not the PSGB is the ideal forum for the current complaint cannot create a basis for overturning the regulatory time limits.

36I now turn to the heart of the Complainant's submission, the argument that upholding the time limits is contrary to the Charter of Rights and Freedoms. The essence of this position is that because the complaint raises discrimination issues protected by the Charter and lies at the intersection of gender and race, statutory time limits must be set aside in order to allow these critical Charter issues to be addressed. Denying the Complainant the right to have her case heard by the PSGB would have the effect of denying her Charter rights, a result contrary to the basic underpinning of Canadian constitutional law. In advancing this position, the Complainant relies primarily on Prete, a 1993 decision of the Ontario Court of Appeal.

37There is no question that discrimination in all its manifestations is abhorrent. I accept that effectively rooting out discrimination remains an elusive goal and, as demonstrated by the submissions of the Complainant, racialized communities continue to suffer the consequences of discrimination. Governments at all levels have made the stamping out of discrimination, whether systemic or overt, an essential objective. The Charter, in cases where it applies, is one tool towards helping to achieve this objective. With these observations as a context, I now turn to Prete.

38Prete arises from a criminal case in which the plaintiff filed a claim against the Crown for alleged malicious prosecution and sought section 24(1) Charter remedies. The claim was filed some 18 months after the plaintiff had been acquitted of murder by a jury. The Public Authorities Protection Act ("PAPA") contained a six month time limit for filing such claims and a lower court ruled that the plaintiff was barred by the PAPA time limits from pursuing his claim. The Court of Appeal disagreed. Citing Nelles v. Ontario 1989 CanLII 77 (SCC), [1989] 2 SCR 170, the court determined that Charter remedies arising from a common law cause of action provided the right to access to a court of competent jurisdiction. It elaborated as follows (paragraph 8):

The reasons of Lamer J., standing alone, are strongly persuasive that a statutory enactment cannot stand in the way of a constitutional entitlement. Section 32(1)(b) of the Charter provides that the Charter applies to the legislature and government of each province. The remedy section of the Charter would be emasculated if the provincial government, as one of the very powers the Charter seeks to control, could declare itself immune.

The Court of Appeal then found that PAPA "should be read as not applying to relief claimed under section 24(1) of the Charter" noting that there is "no valid comparison between procedural rules of court and statutory limitation periods" (paragraph 14). On the basis of Prete, the Complainant has submitted that the time limits under the PSAO and its regulations cannot bar the Board from addressing the merits of her claim, raising as it does section 24(1) Charter remedies.

39The Employer disagrees that Prete opens the door to ignoring the regulatory time limits for filing complaints embedded in the PSAO, citing Alexis, a 2009 Ontario Court of Appeal decision that, in its view, supersedes Prete. Also a case arising from criminal law, Alexis involves a section 24(1) Charter claim by the plaintiff that she was unlawfully detained by police and a physician under the Mental Health Act. Her claim was filed more than two years after the event and a lower judge dismissed the claim on the grounds that the two year statutory filing period under the Ontario Limitations Act (which had replaced PAPA) had been exceeded.

40The Court of Appeal upheld the lower court ruling that Prete does not support the "far broader proposition that s. 24(1) claims, brought by an individual and seeking personal remedies, cannot be subject to any statutory limitation period" (paragraph 15). The Court reviewed how courts elsewhere in Canada, including the Supreme Court of Canada, had followed or distinguished Prete and concluded that "the Supreme Court's reasons⁴ clearly signal that the limitation periods of general application apply to claims made under section 24(1) of the Charter that are 'brought as an individual as a personal remedy'" (paragraph 17). In particular, it wrote (paragraph 16):

……Prete has been distinguished by courts of other jurisdictions on the basis that the six month limitation period being addressed was an exception to the six year limitation period of general application that was available only to the Crown. This more favourable treatment of the government by the government was, with respect to Charter claims, found to be unfair.

41The Court then went on to describe Prete "as standing for the proposition that the Crown cannot insulate itself from s. 24(1) claims through uniquely short limitation periods" (paragraph 19). It concluded that because PAPA had been repealed and replaced by the Limitations Act that did not contain uniquely short time limits, but rather contained time limits consistent with norms elsewhere, the time limits were enforceable even for s. 24(1) claims. The Court reasoned as follows (paragraphs 21 & 22):

A plain reading of the Limitations Act makes it apparent that, in adopting the new Limitations Act, the legislature intended that the 2 year limitation would apply to claims brought as an individual for personal remedy under s. 24(1). Section 4 states that "Unless this Act provides otherwise, a proceeding shall not be commenced in respect of a claim after the second anniversary of the day on which the claim was discovered." The exclusions set out in the Act are listed in ss. 2 and 16. Among the exceptions is a class of constitutional claims. Section 2(1)(e) excludes claims based on aboriginal and treaty rights recognized and affirmed in section 35 of the Constitution Act, 1982. There is however no exclusion for claims brought under section 24(1) of the Charter, and certainly none such as the one brought by the appellant as an individual claim for a personal remedy. It is apparent in my view that, at a minimum, the Act was intended to apply to such claims. Nothing in the statute or in the legislative debates surrounding the adoption of the Act suggests otherwise.

In conclusion, therefore, I agree with the motion judge that the Limitations Act applies to claims such as the one advanced by the appellant. No challenge to the constitutionality of the Limitations Act was brought and I do not accede to the appellant's submission that the Prete decision renders any statutory limitation period inapplicable to Charter claims brought as an individual for personal remedies until specifically overruled by this court. Once the Public Authorities Protection Act limitation was repealed and the new Limitations Act was adopted, Prete, in my view, was overtaken.

42How do Prete and Alexis apply to the current case? First, there is little question that the time limits in the PSAO and its regulations are very short. Once an employee has knowledge of the working condition or term of employment giving rise to the complaint, filing must occur within 14 days. While this type of time limit may appear out of the norm and could fit the bill as a "uniquely favourable treatment by the government for the government" that was criticized in both Prete and Alexis, short time limits are common in a labour relations context. Most collective agreements contain limits for the filing of grievances or taking disciplinary action and these limits may be a short as 10 days and are frequently mandatory. The cases are legion in which arbitrators have upheld preliminary objections for failure to file a grievance within the specified time limit, even in cases of discharge and alleged discrimination, or have overturned disciplinary action by an employer because time limits for imposing discipline had been violated. I am satisfied that viewed through the lens of commonplace labour relations practices a 14-day period for filing a complaint, while on the shorter end of the continuum, does not run afoul of the principles set out in Prete and Alexis.

43In reaching this conclusion, I am cognizant that many, but not all, provincial labour relations statutes and the federal Canada Labour Code give arbitrators the discretion to waive time limits. Criteria, both specified in the statute or developed through case law, include duration and explanation for the delay and prejudice if the out-of-time matter is allowed to proceed on its merits. The PSAO and its Regulation do not offer such discretion to PSGB adjudicators; this might be seen as an attempt to treat the government more favourably under the PSAO than is true elsewhere. There are in fact no time limit exceptions under the PSAO and its regulations for Charter issues or any other matters. At the same time, not all provincial labour relations statutes provide the discretion to adjudicators to waive time limits – if such discretion was a universal principle there might be firmer footing for determining that the mandatory time limit in the PSAO is an unreasonable outlier that cannot stand. But that is not the case. Furthermore, the Limitations Act also does not establish time limit exceptions for section 24(1) Charter claims. Thus, the lack of time limit exception for section 24(1) issues under the PSAO is not inconsistent with the Limitations Act. Bearing in mind the Ontario Court of Appeal's conclusion in Alexis that "I do not accede to the appellant's submission that the Prete decision renders any statutory limitation period inapplicable to Charter claims" I conclude that there is an insufficient basis for setting aside the PSAO time limits and addressing the merits of the current complaint. I simply lack the grounds for accepting jurisdiction.

44I take no pleasure in reaching this conclusion. As pointed out by the Complainant, this case raises important issues about family status and the intersection of race and gender. There is little doubt that the Complainant was faced with daunting personal challenges as a single parent during COVID who had just undergone surgery for a serious illness. Addressing the merits would have permitted an assessment through evidence of whether the Employer's duty to accommodate had been met, whether being physically present at work was a BFOR, whether the Complainant had met threshold requirements of establishing family status or other discrimination allegations, whether management's response to her claims was unduly unsympathetic, and whether any improper motives may have impacted decisionmakers. Unfortunately, I cannot address any of these important matters.

AWARD

45The Employer's preliminary objection is sustained. I conclude that the complaint is untimely under the PSAO and its Regulations. Accordingly, I lack the jurisdiction to address the merits of the complaint and must dismiss the complaint.

Footnotes

1. 1It is unnecessary for me to determine whether the 14-day clock started on July 29, 2020 or November 24, 2020 as the outcome is the same.
2. 2For the same reasons indicated in the previous email, it is unnecessary for me to make a ruling as to whether the July 29, 2020 letter amounts to constructive notice.
3. 3In making these statements I am accepting for purposes of the preliminary submission only that no one from senior management reached out to the Complainant and drew her attention to the PSGB complaint process. If the evidence would have proved otherwise, this would lead to very different inferences about the senior management response.
4. 4Kingstreet Investment Ltd. v. New Brunswick (Department of Finance) 2007 SCC 1, [2007] 1 SCR 3