PSGB# P-2023-01045

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Rabaey

Complainant

• and -

The Crown in Right of Ontario (Ministry of Children, Community and Social Services)

Employer

BEFORE

Andrew Tremayne

Vice Chair

FOR THE COMPLAINANT

Bob Rabaey

FOR THE EMPLOYER

Sean White Treasury Board Secretariat Legal Services Branch Counsel

WRITTEN SUBMISSIONS

Completed January 24, 2024

Decision

1This decision deals with the employer’s preliminary objection to the Board’s jurisdiction to hear and decide Mr. Rabaey’s complaint on the merits. His complaint challenges a disciplinary suspension that the employer imposed on April 26, 2023. On May 12, 2023, Mr. Rabaey gave notice to his deputy minister that he proposed to file a complaint. The objection relates to whether the complaint was brought forward within the Board’s mandatory timelines, which require that a complainant must give notice of a proposal to file a complaint about a disciplinary measure within 14 days after receiving notice that discipline has been imposed. The employer submits that Mr. Rabaey was required to file his notice of proposal by May 10, 2023 at the latest.

2Mr. Rabaey disagrees with the employer’s objection, arguing that it should be dismissed and that the Board should hear his complaint on its merits. Although he does not dispute that he did not give notice of his proposal to file a complaint until May 12, 2023, Mr. Rabaey explains that it is not clear whether a notice of proposal must be filed within 14 calendar days or 14 business days, and that he filed his notice of proposal within 14 business days after receiving notice that he had been disciplined. He also notes that he filed his complaint with the Board on May 10, 2023.

3On May 12, 2023 the Board’s Registrar told Mr. Rabaey that his notice of proposal was missing and that the Board required confirmation that this had been filed. He then gave notice of his proposal to file a complaint to the deputy minister that same day (May 12, 2023), and after the dispute resolution process, he eventually filed his complaint with the Board on June 29, 2023.

4For the reasons set out below, the employer’s preliminary objection to the Board’s jurisdiction to hear and determine this complaint is upheld. The complaint is dismissed and will not proceed to be heard on the merits.

5It is helpful to briefly review the Board’s statutory framework to contextualize the employer’s preliminary objection.

6The Board only has the powers granted by the Public Service of Ontario Act (PSOA) and the regulations made under that legislation, notably Regulation 378/07 (also referred to as the “Regulation”). The relevant sections are 3(1) and 8(4) of the Regulation, which state as follows:

Complaint about a disciplinary measure

3. (1) A public servant who is aggrieved by the imposition of a disciplinary measure under section 34 of the Act, other than dismissal for cause, may file a complaint about the disciplinary measure with the Public Service Grievance Board,

(b) if the public servant gives notice in accordance with section 8 of his or her proposal to file the complaint; and

Notice of proposal to file a complaint

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

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

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

2. For a complaint about a disciplinary measure, within 14 days after the complainant receives notice of the imposition of the disciplinary measure.

7To summarize, the Regulation sets out a particular set of time limits or “windows” of time in which steps must be taken to file complaints about discipline. Notice of a proposal to file such a complaint must be given to the deputy minister within 14 days after the complainant becomes aware of the working condition or a term of employment giving rise to the complaint.

8Once notice is given to the deputy minister, the Regulation creates a dispute resolution period, which must expire before the complainant is entitled to file a complaint with the Board [s. 9(1)]. A complaint will be untimely in the sense of being too early if filed before that dispute resolution period has expired. It will be too late if it is filed more than fourteen days after the dispute resolution has expired. The end of the dispute resolution period is measured in different ways, depending on whether there is a meeting between the complainant and the deputy minister (or delegate) within 30 days after receipt of the complainant’s notice of proposal.

9The Board has repeatedly stated that time limits go to its jurisdiction to hear a complaint. In a line of decisions starting with St. Amant v. Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4673 (ON PSGB), the Board has addressed different factual scenarios that have arisen and has said consistently that compliance with the time limits in the Regulation is a true precondition to the Board having jurisdiction over a complaint. Hasted/Berezowsky v. Ontario (Ministry of Community Safety and Correctional Services), 2016 CanLII 7473 (ON PSGB) and Strong v. Ontario (Ministry of Children and Youth Services), 2016 CanLII 89880 (ON PSGB), McInnes v. Ontario (Ministry of Children, Community, and Social Services), deal specifically with the time limits for sending the notice of proposal to file a complaint, and the Board reached the same conclusion: the time limits in the Regulation go directly to the Board’s jurisdiction to deal with a complaint. As a result, compliance with the time limits is a precondition to the Board’s ability to hear a complaint on the merits.

10Moreover, the Board has no discretion to extend or abridge the time limits for giving notice of a proposal to file a complaint. The reasons for not meeting the time limits, however sympathetic or compelling, do not assist the Board when it lacks the power to relieve against them.

11In this case, the employer issued a letter informing Mr. Rabaey of his disciplinary suspension without pay on April 26, 2023. He wrote to his deputy minister on May 12, 2022, submitting notice of his proposal to file a complaint.

12The 14 day “window” for submitting a notice of proposal to file a complaint opened when Mr. Rabaey received the letter from the employer on April 26, 2023. He was required to submit his notice of proposal within 14 days after he received the letter, The “window” closed at the end of the day on May 10, 2023.

13Mr. Rabaey had not yet filed his notice of proposal with his deputy minister when he submitted his complaint to the Board on May 10, 2023. In an email reply sent to Mr. Rabaey on May 12, 2023, the Board’s Registrar pointed out that his complaint lacked the necessary information about when he had filed his notice of proposal. More will be said about the Registrar’s reply below.

14Certain eligible non-union provincial public servants are eligible to file a complaint about their working conditions, including disciplinary measures or dismissals for cause, with the Board. There are several steps in the process, and filing a notice of proposal is a necessary precondition to filing a complaint with the Board. As the existence of the various time limits and “windows” described above suggests, the complaint process is not straightforward. However, there is abundant information about this on the Board’s website and on the complaint form itself.

15The complaint form (the Board’s Form 1 – Application) clearly states that information about the notice of proposal is required. Page 2 of the form says:

To file a complaint, Section 10 of Regulation 378/07 requires that this Application must include any Notice of Proposal given to the Employer.

Are you including a Notice of Proposal? [Yes/No]

On what date was the Notice given to the Employer? ________________________

This information was not included when Mr. Rabaey filed his complaint with the Board on May 10, 2023, so the Board’s Registrar replied to him on May 12, 2023 and pointed this out.

16If a public servant who wants to file a complaint does not know what a “Notice of Proposal” is or is otherwise unsure about the complaint process, the Board’s website provides this information. Specifically, the Board’s website has a tab titled “Frequently Asked Questions” with a series of plainly worded questions and answers. Questions 7 – 11 are as follows:

7. What is the Notice of Proposal to file a Complaint?

Let's just call this your "Notice of Proposal." It is your first step in the complaint process. This step must be completed before you bring a Complaint to the Board. It is your initial, written notice to your employer that you intend to bring a Complaint to the Board if you cannot resolve it with them during the dispute resolution period. You may do this with a letter or email, as there is no official form or template. In it, you must set out the reasons for your Complaint and deliver it to your employer (See S. 8(1) of the Regulation).

8. To whom must your Notice of Proposal be given?

Usually your Notice of Proposal must be given to your deputy minister or, if you work in a Commission public body, to the Chair of the Public Service Commission, or their designates. However, different processes exist for Complaints relating to alleged reprisals for political activity or whistleblowing (see Question 15).

9. How soon after an incident must a Notice of Proposal be given?

Most Notices of Proposal must be given to your employer within 14 days after you receive notice of a disciplinary measure or dismissal, or within 14 days of your becoming aware of the working condition or term of employment complained of. These time limits are mandatory and the Board does not have the discretion to extend them. For details, see section 8 of the Regulation (and see Hasted v Ontario (Community Safety and Correctional Services), 2016 CanLII 7473 (ON PSGB) at paragraphs 21-22). Again, different processes exist for Complaints relating to alleged reprisals for political activity or whistleblowing (see Question 15).

11. What steps must be taken before a Complaint can be properly filed with the PSGB?

i. Give your Notice of Proposal to the designated person as described in Q. 8 above, within the time frame described in Q.9 above (as detailed in section 8 of the Regulation).*

ii. Wait until the end of the dispute resolution period as described in section 9 of the Regulation. Note that under section 9, the length of the dispute resolution period varies depending on:

• whether the person to whom you gave notice, or their delegate, meets with you during the 30 days after your notice is given, and

• whether or not you receive a written decision about your Complaint

Read Sections 8, 9 and 10 of the Regulation carefully. Be very careful to calculate the precise dispute resolution period in your case, based on what has happened in response to your notice of proposal. This is YOUR responsibility. You should NOT rely on the Employer to protect your rights in this regard.

iii. File your Complaint with the Board WITHIN 14 DAYS AFTER the expiry of your dispute resolution period.

• Note: these time frames and process are not applicable to reprisal Complaints regarding political activity under sections 103 and 104 of the Act or regarding disclosure of wrongdoing under sections 139 and 140 of the Act;

For examples of Board decisions discussing these requirements, see St. Amant vs. Ontario (Ministry of Community Safety and Correctional Services) 2013 CanLII 4673;

And Telford vs. Ontario (Finance) 2016 CanLII 36364; and Beach vs. Ontario (Solicitor General) 2020 CanLII 74281; and Dixon vs. Ontario (2020) CanLII 74279; and Preston vs. Ontario (Education) 2021 CanLII 71622.

[emphasis added]

17The Board’s website has another tab titled “Rules and Practice Notes” at the very top of which is a section on “Definitions” followed by a section titled “Computation of Time & Holidays Under These Rules” which says the following:

Definitions

1. In these Rules,

A. "Act" means the Public Service of Ontario Act, 2006;

B. "Board" means the Public Service Grievance Board;

C. "Case" means any proceeding before the Board;

D. "Day" means any day of the week and “days” means calendar days;

E. "Electronic hearing" means a hearing held by telephone conference, videoconference or some other similar form of electronic technology allowing persons to communicate with another;

F. "Filing" means the effective delivery of documents to the Registrar of the Board:

G. "Complaint" " means a complaint filed with the Board by a complainant;

H. "Complainant" means a person entitled to file a complaint with the Board under the Public Service of Ontario Act, 2006 and the Regulation;

I. "Hearing" is any part of a proceeding including the consideration of preliminary matters and/or the submission of evidence and argument on the merits of the complaint;

J. "Regulation" means Ontario Regulation 378/07, as amended from time to time;

K. "Representative" means counsel or agent who is authorized to represent the complainant, the employer or any other party;

L. "Registrar" means the Registrar of the Board and can include the Deputy Registrar or other designate.

Computation of Time & Holidays Under These Rules

In these Rules,

A. Time limits that would otherwise expire on a holiday are extended to include the next day that is not a holiday;

B. Time limits for registering or filing documents or for doing anything else that expire on a day when the Board is not open during its regular hours of business are extended to include the next day the Board is open during its regular hours of business;

C. A reference to the number of days between two events excludes the day on which the first event happens and includes the day on which the second event happens, even if the reference is to “at least” or “not less than” a number of days;

D. A period of time described as beginning or ending on, at or with a specified day includes that day;

E. A period of time described as beginning before or after a specified day excludes that day;

[etc.]

[emphasis added]

18Elsewhere, the Board in its decisions has clarified that “days” are calendar days and that Saturdays, Sundays, and holidays are not excluded when timelines are calculated under the Board’s statutory framework (Preston v. Ontario (Ministry of Education), 2021 CanLII 71622 (ON PSGB).

19Soon after Mr. Rabaey attempted to file his complaint with the Board, the Registrar told him that the notice of proposal letter was missing from his complaint and that he had not provided the date of his notice of proposal. The Registrar added that it would be difficult to determine the timelines for filing his complaint with the Board without knowing the date of his notice of proposal. Finally, the Registrar directed Mr. Rabaey to the Board’s website, specifically the section on “Frequently Asked Questions” and “Rules and Practice Notes,” and included excerpts from these sources (as reproduced above) in her May 12, 2023, email.

20The Board’s website provides information for public servants seeking to file a complaint. The Board’s staff frequently direct staff to that website and are also available to provide information and answer questions. The Board’s decisions are available free online (also through its website). However, the Board’s core function remains that of a neutral adjudicator of complaints. The Board and its staff cannot provide any party with legal advice. Ultimately, anyone who seeks to file a complaint with the Board is entirely responsible for complying with the Public Service of Ontario Act (PSOA), the regulations made under that legislation, and the Board’s Rules and Practice Notes.

21The chronology of events shows that Mr. Rabaey tried to cure the defect in his filing as soon as the Registrar pointed it out to him. He filed a notice of proposal with his deputy minister on May 12, 2023. However, it was already too late, as the “window” had closed at the end of the day on May 10, 2023. Although Mr. Rabaey had filed his complaint with the Board that day, he had failed to complete the necessary precondition of sending his notice of proposal to the deputy minister. In fact, the “window” for filing his complaint with the Board had not yet opened because Mr. Rabaey had neglected to file his notice of proposal as required by the Regulation.

Disposition

22To summarize, Mr. Rabaey was informed of his disciplinary suspension without pay on April 26, 2023. The 14-day time limit for sending a notice of proposal to file a complaint began to run on that day, and it expired at the end of the day on May 10, 2023. Mr. Rabaey sent his notice of proposal to the deputy minister on May 12, 2023, so it is not timely. The Board has repeatedly stated that time limits go to its jurisdiction to hear a complaint, so the Board cannot hear the complaint on the merits.

23The complaint is dismissed and will not proceed to a hearing.