PSGB# P-2022-12071

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Drakos

Complainant

• and -

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

Employer

BEFORE

Thomas Kuttner, KC

Vice Chair

FOR THE COMPLAINANT

Mark Drakos

FOR THE EMPLOYER

Alana Bujeya Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

May 23 and June 22, 2023

Decision

Introduction

1This is a complaint filed on March 8, 2023 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, Mark Drakos, who after thirty-three (33) years of service, retired from the Public Service on November 30, 2022, claims Enhanced Severance pay based on his final salary. At that time, Mr. Drakos was on temporary assignment as a Project IT Lead at a Correctional Facility of the Employer, classified as an Individual Contributor 09; his home position being Operational/Manager/Sergeant, classified as Manager 07. By way of relief, the Complainant seeks thirty-three (33) weeks of Enhanced Severance pay based upon his final salary.

2At the Case Management Video Conference Call held on April 2, 2023, the Employer indicated that it had preliminary objections to the Board taking jurisdiction and entertaining this matter on the merits. I advised the parties that I would determine the preliminary objections on the basis of written submissions, and directed the parties to file written submissions on the preliminary objections according to an agreed schedule: the Employer to file its preliminary objections by way of Form 2 on or before May 23, 2023; and Mr. Drakos his Reply on or before June 22, 2023.

3Accordingly, my findings of fact in this Decision are based on the written materials filed with the Board: the Form 1 Complaint; the Form 2 Response; and the submissions of both parties on the preliminary objections of the Employer. This decision deals solely with the preliminary objections made by the Employer to the Board’s jurisdiction to entertain this matter on the merits. Where, as here, the Employer pleads that the Complainant has not made out a prima facie case for the relief sought, Rule 15 of the Board’s Rules provides that the facts stipulated in the Complaint are assumed to be true.

Factual Background

4On May 31, 2023, Mr. Drakos notified the Employer of his intent to retire. On July 2, 2022, he received his Ontario Shared Services (OSS) Exit Package regarding his retirement. It outlined Mr. Drakos’s entitlements, which did not include Enhanced Severance pay.

5On November 2, 2022, Daryl Pitfield, Assistant Deputy Minister, Institutional Services announced, by way of memo to all Sergeants, the new structure for supervisory and management functions and the overall rank structure. Under it, the current Sergeant rank would cease to exist, the existing responsibilities to be shared by the new position of Correctional Supervisor and a strengthened Staff Sergeant complement. As of the time of the filing of written submissions by the parties, this restructuring process had not yet been implemented.

6On November 21, 2022, four months after submitting his Exit Package to OSS Payroll North Bay, Mr. Drakos emailed that office noting that, with the abolition of the Sergeant classification, he assumed that the position would be declared surplus, in which case he claimed Enhanced Severance pay. OSS Payroll North Bay directed Mr. Drakos to contact his Human Resources Advisor to confirm any entitlements. However, he did not do so.

7The terms and conditions of the restructuring process as they affect Sergeants are set out in Section 10.21 of the Employer’s Employment Policy. There is a dispute between the parties as to whether Section 10.21 provides for Enhanced Severance pay in the case of retirement by a Sergeant. The Complainant asserts that it does, whereas the Employer asserts that it does not. The resolution of this issue goes to the merits of the Complaint and cannot be resolved in this Decision which addresses solely the preliminary objections to the jurisdiction of the Board to entertain this matter on the merits.

Preliminary Objections

8The Employer makes four (4) preliminary objections to the Board’s jurisdiction to entertain this matter on the merits:

i. The Complainant has failed to set out particulars disclosing a prima facie breach of a term or condition of his employment.;

ii. The Complaint is untimely as it was not filed in compliance with the requirements set out in sections 4 and 8 of the Regulation.;

iii. The Complainant was not employed as a public servant at the time he filed the Complaint because he was retired.;

iv. The Complainant filed the Complaint before the expiration of the dispute resolution period, contrary to sections 4, 9 and 10 of the Regulation.

The preliminary objections will be addressed seriatim.

No Prima Facie Breach: The First Preliminary Objection

9Rule 15 of the Board’s Rules stipulates:

Where the Board considers that a 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, the Board my dismiss the complaint without a hearing or consultation. In its decision the Board will set out its reasons.

Employer’s Submissions

10The Employer submits that the Complainant is not entitled to enhanced severance as he was not laid off or surplused. Instead he announced his intent to retire five months before the restructuring process was announced. For this reason, section 10.21 of the Employer’s Employment Policy does not apply. The Complainant has failed to set out particulars disclosing a prima facie breach of any term or condition of employment with respect to any entitlement to enhanced severance. In support, the Employer referenced Wickham-Johnson v Ontario (Solicitor General),¹

Complainant’s Submissions

11Mr. Drakos submits that the fact that the OSS Exit Package of July 7, 2022 did not include an enhanced severance package is because the Ministry had not yet announced how it would restructure existing M07 (Sergeant) positions. OSS Payroll North Bay never responded to his question in regard to enhanced severance.

12The Employer has failed to properly interpret and apply section 10.21 of its Employer’s Employment Policy, as his home position had been filled leaving him without a home position in the M07 classification. The Employer fully understood his position, complaint, communication and grievance. Properly interpreted, section 10.21 entitles him to enhanced Severance pay, and the Employer has failed to pay it.

Decision on the First Preliminary Objection

13In Denean Vassel v The Regional Municipality of York², the Ontario Labour Relations Board addressed the approach that a Board should take when considering a no prima facie case pleading as follows:

13. It is only in the clearest of cases where there is no reasonable likelihood that the complaint can succeed, that the Board will exercise its discretion to dismiss a complaint on the grounds that it does not disclose a prima facie case — Kingston, Frontenac, Lennox and Addington Community Care Access Centre, 2002 CanLII 40915 (ON LRB). There is a low threshold which an applicant must meet in its pleadings to make out a prima facie case. Or stated from the opposite perspective there is a high bar which a party making a Rule 39 motion must clear — Budget Environmental Disposal Inc. c.o.b. as Budget Demolition, 2021 CanLII 126393 (ON LRB) (internal citations omitted).

14By way of analogy, in Hunt v Carey Canada Inc.³, a civil action, Justice Wilson remarked:

As in England, if there is a chance that the plaintiff might succeed, then the plaintiff should not be “driven from the judgement seat.” Neither the length and complexity of the issues, the novelty of the cause of action, nor the potential for the defendant to present a strong defence should prevent the plaintiff from proceeding with his or her case. (cited by the Board in Bentall Limited, 2013 CanLII 59348 (ON LRB) at para 9).

15Bearing in mind that Rule 15 is premised on the proposition that the facts stated in the Complaint are true, I am satisfied that the Complainant has met the threshold for establishing a prima facie case as set out in paragraph 9 of Wickham-Johnson supra: i) The existing term or condition of employment is the Complainant’s assumed entitlement to enhanced severance pay under section 10.21 of the Employer’s Employment Policy; ii) the Employer has breached that term by refusing to grant enhanced severance pay to the Complainant; and iii) there is a direct connection between that breach and the relief requested, namely thirty-three weeks of enhanced severance pay.

16Accordingly, the Employer’s first preliminary objection to my jurisdiction to proceed to hear the Complaint filed by Mr. Drakos, is dismissed.

Timeliness: The Second Preliminary Objection

17Sections 4 and 8 of the Regulation specify in relevant part:

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 give 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.

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

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

(3). The notice must set out the reasons for the complaint.

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

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

Employer’s Submissions

18The Complainant was fully aware of his entitlements upon his retirement as of July 7, 2022. On November 21, 2022, approximately 4.5 months after he was made aware of his entitlements upon his retirement, the Complainant followed up with OSS Payroll North Bay regarding his assumption that he would be entitled to surplus. It was not communicated to him nor confirmed that he was entitled to surplus as he subsequently failed to follow up with the HRA. The Complaint is well beyond the Board’s 14-day time limit, as it was filed in March 2023, months late.

19In the alternative, the Complainant was aware of his estimated payout on January 12, 2023 which is when OSS Payroll North Bay confirmed the estimated amount to be paid to the Complainant. Therefore, 14 days after January 12, 2023, is January 26, 2023. However, the Complainant provided his notice of proposal to file a Complaint on February 7, 2023, so the Complaint is untimely.

20The timelines in the Regulation are mandatory, and if not met, then the Board is without jurisdiction to entertain the complaint. The Complainant failed to follow the mandatory timelines prescribed by the Regulation, and therefore the Complaint falls outside of the Board’s jurisdictional boundaries. On this basis alone, the Board should dismiss the Complaint. Counsel cited several cases of the Board in support: Kurczak v Ontario (Solicitor General),⁴ Thomas v Ontario (Solicitor General)⁵ and St. Amant v Ontario (Ministry of Community Safety and Correctional Services).⁶

Complainant’s Submissions

21Mr. Drakos submits that since OSS has never answered his question, namely whether he was entitled to an Enhanced Severance package, he had to wait to see if the payment would come with his regular severance. As of July 7, 2022, OSS never confirmed that he was not entitled to the enhanced severance. It recommended that he consult his Human Resources advisor. But an Advisor could not make a ruling on whether or not an enhanced severance payment was to be made or not. It is a function of OSS to determine when policies are properly applied.

22Mr. Drakos also submitted that, although the retirement payout was made on January 12, 2023, he never received written documentation on the breakdown of the payout. Therefore, he had to determine the breakdown himself. For the month of January, Mr. Drakos was undergoing medical treatment for a serious medical issue and at times was having problems concentrating on other issues.

23Furthermore, the Ministry abused its position by refusing to communicate, and removing computer access prior to the end of employment, creating conditions where timelines as set out in the Regulation could not be met.

Decision on the Second Preliminary Objection: Timeliness

24At issue is whether the Complaint was filed in accordance with the provisions of subsection 8(4).3 of the Regulation which stipulate that a notice of proposal to file a complaint 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.” Ever since the decision in the St. Amant case supra, the Board has consistently held that the 14-day period to file a notice of proposal is mandatory, and if not complied with it has no jurisdiction to entertain the complaint on the merits.

25More recently, the Board held in the Kurczak case supra that the 14-day time limit to file the notice of proposal is calculated from the time that the complainant has the relevant information of the condition or term of employment giving rise to the complaint. The Board wrote there:

11… Section 8(4)3 of the Regulation has been interpreted to mean that a complaint must be filed within 14 days of the date of the circumstances giving rise to the complaint, that is, the point at which one has the relevant information so as to crystallize their concern.

26Mr. Drakos gave notice of proposal to his deputy minister by e-mail dated February 7, 2023, advising that he intended to file a grievance with the Board. The body of that e-mail reads:

Please consider this e-mail as notice that I intend to file a grievance with the Ontario Public Service Board.

I plan to grieve that on November 2^nd, 2022 Mr. Daryl Pitfield confirmed the abolition of the M07 position.

I retired on November 30, 2022.

I received my severance pays on January 26, 2023, but did not receive my Enhanced Severance as per the Employment Policy section 10.21.

I expect 33 weeks of enhanced severance. [Complainant’s Form 1]

27At issue is the date on which Mr. Drakos had the relevant information as to whether he was to receive enhanced severance pay. Counsel suggests first, that the Complainant was fully aware of his entitlements upon his retirement as of July 7, 2022. That was the date on which the OSS Payroll North Bay notified him by e-mail as follows:

Hi Mark;

Congratulations on your retirement from the Ontario Public Service!

The enclosed Retirement Information Package describes your entitlements upon retirement; and enables you to indicate your preference for payment* of termination pay and payable credit banks such as vacation. Before completing the forms, please make sure that you have already confirmed your retirement eligibility date with your Ontario Pension plan administrator. Please read through the attached information package. If you have any questions or concerns, you can reach me via email at oss.payroll.northbay@ontario.ca and we can arrange a retirement interview to review your questions and clarify any concerns you may have. If you do not require assistance with the completion of the attached package, please ensure that the completed package with all signed forms is returned to me at the above address or via email at oss.payroll.northbay@ontario.ca . Please consult a Financial Planner for any questions you may have regarding the disbursement of your termination payments. [Employer Book of Documents, Tab 7].

28The Retirement Information Package attached to that email [Employer’s Book of Documents, Tab 3] nowhere addresses the concern of Mr. Drakos, namely whether or not he was entitled to Enhanced Severance. The silence of the Employer on that issue puts paid to the Employer’s submission that Mr. Drakos had at that point in time (July 7, 2022) “relevant information so as to crystallize his concern” regarding Enhanced Severance pay. Accordingly, the 14-day period for Mr. Drakos to file his notice of proposal, cannot be calculated from that date.

29The Employer submits in the alternative, that the Complainant was made aware by e-mail of his estimated payout on January 12, 2023, the date upon which OSS Payroll North Bay confirmed the estimated amount to him. That e-mail reads:

Hi Mark,

Thank you for confirming your RRSP room for 2023.

We estimate your payout to be approximately $60,902.62. Please note

that this amount hasn’t yet been reviewed and is subject to change.

Your payout will be issued as soon as your attendance has been finalized by your manager – there are a few vacation entries that haven’t yet been approved. Once we issue your payout, you will see the funds you have directed to your bank account within 3-5 days. The amount directed to your RRSP will take approximately 4-6 weeks to be received and processed by your bank. If you have any additional questions, please let me know.

Thank you!

xxxx

30Again, the e-mail, apart from giving to Mr. Drakos an estimate of his retirement payout. is silent as to whether that amount includes Enhanced Severance pay or not, leaving the issue of paramount concern to Mr. Drakos, unanswered.

31What is the point of time at which Mr. Drakos had the relevant information as to whether he was entitled to Enhanced Severance pay or not so that his concern could be said to be “chrystallized”? The answer is found at Form 1, where Mr. Drakos, in his notice of proposal advised that he received his severance pay on January 26, 2023. The notice of proposal was filed on February 7, 2023, so that the 14-day time limit for doing so has been met.

32Accordingly, the Employer’s second preliminary objection to my jurisdiction to proceed to hear the Complaint filed by Mr. Drakos, is dismissed.

Excluded Individual: The Third Preliminary Objection

Employer’s Submissions

33The Employer submits that inasmuch as the Complainant was retired at the time he filed this Complaint, he was not employed as a public servant eligible to file a complaint. The Complainant filed his notice to file a complaint on February 7, 2023. He knew his entitlements prior to the restructuring process announcement and his retirement on November 30, 2022.

34The Complainant chose to file his complaint when he was no longer a public servant. Therefore, the Board should dismiss the Complaint on this basis alone, or in conjunction with the Employer’s other preliminary objections. The Employer referenced the Public Service of Ontario Act and the decision of the Board in Burt v Ontario (Community Safety and Correctional Services)⁷ in support.

Complainant’s Submissions

35Mr. Drakos submitted that the Ministry has abused its powers and responsibilities by not responding to him in a timely manner. It attempted to have him chase an HR Consultant who does not have the authority to make a ruling on the enhanced severance package. The removal of access to communication through the ministry computer and Microsoft Teams made it impossible for him to receive information from the Ministry. Thus he had to wait until payment and documentation of the payout was received.

Decision on the Third Preliminary Objection: Excluded Individual

36The Public Service of Ontario Act defines a public servant as follows:

2(2) For the purposes of this Act, the following are public servants:

1. Every person employed under Part III

3 Except where otherwise provided, a reference in this Act to a former public servant is a reference to a person who ceased to be a public servant on or after the day on which this section comes into force.

37In the Burt case supra, the Board held that it lacked jurisdiction to hear the complaint as the complainant was a retired public servant. It found that the Legislature did not extend the right to former public servants to grieve former working conditions. However, the provisions of subsections 4(1), 4(2) and 7(1) of the Regulation place an important gloss to this exclusion of retired public servants to grieve former working conditions. These provide in relevant part:

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

7(1) A public servant is eligible to file a complaint about a working condition or a term of employment only if he or she had been employed continuously for at least six months before the deadline for giving notice in accordance with subsection 8 of his or her proposal to file a complaint.

This provision of the Regulation was not addressed by the Board in Burt supra.

38Subsection 7(1) falls within the exception to section 3 of the Act. Its terms are to be given a remedial interpretation as stipulated in the Legislation Act, 2006, c. 21, Sch F at section 64:

64(1)An Act shall be interpreted as being remedial and shall be given such fair, large and liberal interpretation as best ensures the attainment of its objects.

(2)Subsection (1) also applies to a regulation, in the context of the Act under which it is made and to the extent that the regulation is consistent with that Act.

39Here, the object of the Regulation is to give an avenue of relief for public servants who are aggrieved about a working condition or about a term of his or her employment: the right to file a complaint before the Board. The provisions of subsection 7(1) of the Regulation, extend to a retired public servant eligibility to file a complaint under certain circumstances: the retired public servant must have been employed continuously for at least six months before the deadline for giving notice of a proposal for filing a complaint.

40I read the phrase “before the deadline for giving notice” broadly. It enables the retired public servant to file a complaint so long as at any six month period falling before the deadline, they had been continuously employed. Here, as held above, the deadline for filing the notice of proposal was February 14, 2023. Mr. Drakos had been continuously employed for 33 years prior to his retirement on November 30, 2022, i.e. for a continuous period well in excess of six months before the deadline for filing a complaint.

41To read the provision narrowly, i.e. that the six month period of continuous employment must fall solely within the six months immediately preceding the deadline would be counterintuitive, as in effect it would strip a retired public servant from filing a complaint. Their date of retirement would always be before the deadline for filing a complaint, and so the individual could not meet the six month period calculated solely from the deadline date.

42Accordingly, for the foregoing reasons, the Employer’s third preliminary objection to my jurisdiction to proceed to hear the Complaint filed by Mr. Drakos, is dismissed.

Dispute Resolution Period: The Fourth Preliminary Objection

43Sections 4, 9 and 10 of the Regulation stipulate in relevant part:

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,

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

9. (1) A complainant is not entitled to file a complaint with the Public Service

Grievance Board until expiry of the period provided under this section for dispute resolution.

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

Employer’s Submissions

44The Employer submits that the Complainant filed the Complaint before the expiry of the dispute resolution period, contrary to sections 4, 9 and 10 of the Regulation. Therefore, the Board lacks jurisdiction over the Complaint. Here, the Complainant filed his Complaint before the Board on March 8, 2023. He provided his notice of proposal to file a Complaint on February 7, 2023 and a Deputy Minister or Delegate meeting was not held.

45Pursuant to section 9(5), the 30-day expiry period from the filing of the Complainant’s notice of proposal on February 7, 2023, ended on March 9, 2023. However, the Complainant filed his Complaint to the Board on March 8,2023 – one day earlier than the time required to do so. Therefore, the Complaint is untimely because it was filed in advance of when it could properly be filed, and the Board is without jurisdiction to consider it. Counsel referenced in support, the decision of the Board in Morris et al v Ontario (Community Safety and Correctional Services)⁸

Complainants Submissions

46Mr. Drakos submits that all timelines had been met in accordance with the Public Service Grievance Board.

Decision on the Fourth Preliminary Objection: Dispute Resolution Period

47Ever since the decision of the Board in St. Amant supra, the Board has been stringent in upholding the mandatory nature of the time limits contained in the Regulation. There, the time limits in section 8 of the Regulation were at issue. The Board wrote there:

10There 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. Even though the Board’s statutory power to extend time limits had been revoked in 1996, there are PSGB decisions arising during the period from 1996 until Regulation 378/07 came into force where the Board exercised discretion to extend time limit. These cases, however, all dealt with the time limits set out in former Regulation 977 and these time limits had been clearly expressed in directory language. The language used to prescribe time limits in the new Regulation 378/07, however, is significantly different and leaves no doubt as to its mandatory nature. This choice of mandatory language can lead to no other conclusion than that compliance with these time limits is a precondition to the PSGB assuming jurisdiction over a matter. 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.

48In the Morris case supra, the Board addressed the mandatory nature of the time limits set out in sections 9 and 10 of the Regulation. There, the complaint was filed with the Board on October 5, 2017, and the dispute resolution period did not expire until October 7, 2017, 30 days after receipt of the notice of proposal. Ultimately the complaint was dismissed because it was filed too early.

49The Board wrote in Morris:

16In this case … the complaint was filed with the Board two days in advance of when it first could properly be filed. The complainant was not eligible to file his complaint when he did, rendering the complaint untimely. That leaves the Board without jurisdiction to consider the complaint.

50Morris is on all fours with the case before me. Mr Drakos’s failure to meet the time limits set out in sections 9(5) and 10(1) for the filing of a complaint before the Board following the 30-day dispute resolution period, disentitles him from filing his Complaint and leaves the Board without jurisdiction to entertain it.

51Accordingly, for the foregoing reasons, the Employer’s fourth preliminary objection to my jurisdiction to proceed to hear the Complaint filed by Mr. Drakos, is sustained.

52This Complaint is dismissed.

Footnotes

1. 12021 CanLII 37119 (ON PSGB) (Kuttner).
2. 22022 CanLII 120971 (ON LRB).
3. 32021 CanLII 5052 (SCC).
4. 42021 CanLII 134967 (ON PSGB) (Nairn).
5. 52022 CanLII 31381 (ON PSGB) (Kuttner).
6. 62013 CanLII 4673 (ON PSGB) (Carter).
7. 72011 CanLII 23300 (ON PSGB) (O’Neil).
8. 82018 CanLII 109220 (ON PSGB) (Nairn).