PSGB# P-2022-11824

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Taylor

Complainant

• and -

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

Employer

BEFORE

Thomas Kuttner, KC

Vice Chair

FOR THE COMPLAINANT

James McGrath Schmidt Law Legal Services Counsel

FOR THE EMPLOYER

Sean White Treasury Board Secretariat Legal Services Branch Counsel

WRITTEN SUBMISSIONS

February 7, 21 and 23, 2024

Decision

1This is a complaint filed on December 22, 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, Vicki Taylor, a Sergeant on extended leave of absence since on or about November 2016 from the Ministry of the Solicitor General, alleges that the Employer, by letter dated November 23, 2022, unfairly declared her position to be abandoned, pursuant to section 42 of the Act inasmuch as she had been absent from the workplace without approved leave since July 2, 2022.

2Section 42 of the Act stipulates:

42 (1) If a public servant appointed by the Public Service Commission is absent from work without approved leave for a period of two weeks or more, the Commission may declare, in writing, that the public servant has abandoned the position and that his or her employment by the Crown is terminated. 2006, c. 35, Sched. A, s. 42 (1).

(2) When a declaration with respect to a public servant is made under subsection (1), the termination takes effect and the public servant ceases to be employed by the Crown. 2006, c. 35, Sched. A, s. 42 (2).

The Waiver Issue

3The Employer has raised a preliminary objection to the Board’s jurisdiction to entertain this Complaint based on the late filing by the Complainant on December 22, 2022 of the Notice of Proposal to the Deputy Minister to file a Complaint to the Board. The Complainant, by submissions filed on February 21, 2024, asserts that the Employer has waived its right to raise a preliminary objection as to the timeliness of the Notice of Proposal. The Complainant submits that the issue of waiver was first raised at the Case Management Conference Call in this matter on March 1, 2023 and dealt with there, the Employer having consented to proceed by way of mediation/arbitration and so having waived its right to raise the issue of timeliness. The Complainant further submits that the issue is res judicata and the Employer is estopped from raising it at the mediation session held in this matter on January 23, 2024. The Complainant cites no caselaw in support of her submissions.

4The Employer in Reply, filed on February 23, 2024, contests the assertion of the Complainant that it had waived its right to object to the timeliness of the Notice of Proposal, whether implicitly or explicitly, by participating in the mediation proceedings. Moreover, it submits that throughout these proceedings, it has maintained its right to raise the timeliness issue, as was explicitly recognized by me in a note to the parties dated March 1, 2023 following the Case Management Conference Call where I wrote inter alia: “Mr. White reserves the right to raise a preliminary objection as to the timeliness of the Employee's Form 1.”

5In support of its submissions, the Employer referenced two decisions of the Board: Gregory v Ontario (Solicitor General), 2022 CanLII 70878 (ON PSGB); and Hamilton v Ontario (MCSCS), 2019 CanLII 42439 (ON PSGB). In Re Hamilton, Vice-Chair Tremayne held at paragraph 74:

Section 4 of the SPPA is about the ability to waive procedural requirements. Having found that the time limits in the Regulation 378/07 are substantive, not procedural, s.4 does not apply in this case. The time limits cannot be waived, because they are not procedural requirements. As a result, the employer did not waive its right to object to the timeliness of the complaint. It did not waive its right to do so because it cannot waive its right to do so.

6In Re Gregory, Vice-Chair Ponak held at paragraph 34:

A 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. …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.

7I agree with Vice-Chair Tremayne in Re Hamilton supra that, inasmuch as the time limits in the Regulation are substantive and hence mandatory, not merely procedural, the provisions of the Statutory Powers Procedure Act, RSO 1990 c. S.22 allowing for the waiver of procedural regulations are not applicable in this matter. As was the case there, and as well in Re Gregory supra, the Complainant’s submissions on waiver by the Employer of its right to maintain its preliminary objection on timeliness must be rejected.

The Preliminary Objection on Timeliness

8As noted above, the Employer, by letter dated November 23, 2022, declared the Complainant’s position to be abandoned. There is no question that the Complainant was eligible to file a Complaint to the Board pursuant to section 4 of the Regulation. However, the Employer submits that the Complainant failed to comply with the timeliness provisions of section 8 of the Regulation in the filing of her Complaint to the Board. Section 8 of the Regulation stipulates in relevant part:

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.

(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 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.

9The Complainant gave Notice to the Deputy Minister of the Proposal to file a Complaint before the Board on December 22, 2022, fifteen (15) days after she became aware of the working condition or term of employment giving rise to the Complaint — namely, the November 23rd declaration by the Employer of the abandonment of her position. The Complainant ought to have given her Notice of Proposal to the Deputy Minister on or before December 7, 2022.

10The Employer submits that, inasmuch as the timeliness provisions of section 8 of the Regulation are mandatory, the late filing of the Notice of Proposal to the Deputy Minister deprives the Board of the jurisdiction to entertain the Complaint on the merits. In support, the Employer references the following jurisprudence of the Board:

St Amant v Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 4 (AB LRB), 2013 CanLII4 673 (ON PSGB: Carter); Ashdown et al v Ontario (Community Safety and Correctional Services), 2017 CanLII 16732 (ON PSGB: Nairn); Barnes and Ontario (Ministry of Community Safety and Correctional Services), 2017 CanLII 25427 (ON PSGB: Nairn)]. Bourgeault / Schmohl and Ontario (Ministry of Community Safety and Correctional Services), 2013 CanLII 884294 (ON PSGB: O’Neil); Hasted / Berezowsky and Ontario (Ministry of Community Safety and Correctional Services), 2016 CanLII 7473 (ON PSGB: Nairn); Kurczak v Ontario (Solicitor General), 2023 CanLII 102947 (ON PSGB: Kuttner); McInnes v Ontario (Children, Community and Social Services), 2023 CanLII 15955 (ON PSGB: Tremayne) Thomas v Ontario (Solicitor General), 2022 CanLII 31381 (ON PSGB: Kuttner) and Sivalingam v Ontario (Solicitor General) 2023 CanLII 15954 (ON PSGB: Kuttner).

11In Re St. Amant supra, then Chairman Carter noted that the 14-day time limit for the giving of the Notice of Proposal to the Deputy Minister is a precondition for the Board to assume jurisdiction over a matter, and concluded at paragraph 10:

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.

12It matters not how extensive the late filing of the Notice of Proposal to the Deputy Minister is. In Re Thomas supra, the Complainant filed the Notice of Proposal one day late, i.e. on the 15th day after his dismissal, yet as the Board noted at paragraph 26:

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.

And see to the same effect, Re Sivalingam supra at paragraph 17.

13The Complainant having failed to comply with the 14-day time limit for the giving of Notice to her Deputy Minister of her intent to file a Complaint with the Board, the Board has no jurisdiction to entertain this Complaint on the merits.

14This Complaint must be and is hereby dismissed.