PSGB# P-2023-01674

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Gilkes

Complainant

and -

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

Employer

BEFORE

Thomas Kuttner, K.C.

Vice Chair

FOR THE COMPLAINANT

Andrew Camman Spero Law Counsel

FOR THE EMPLOYER

Dimitrios Molos and Suneel Bahal Treasury Board Secretariat Legal Services Branch Counsel

HEARING

May 7, 2024

Decision

1This is a Complaint originally filed on September 5, 2023 pursuant to subsection 4(1) of OReg 378/07 (“the Regulation”) under the Public Service of Ontario Act, 2006, SO 2006 c.35 Sch A (“the Act”). In it, the Complainant, Christian Gilkes, a Sergeant at the Central East Correctional Centre, alleges that the Employer, by letter dated August 16, 2023, dismissed him without just cause.

2The Employer brings a preliminary motion to have the Complaint dismissed on the basis that the Board does not have jurisdiction to entertain the within Complaint because it was filed during the dispute resolution period stipulated at subsections 9(1) & (5) of the Regulation. This decision addresses only that preliminary motion.

3The Parties filed an Agreed Statement of Facts (“the ASF”) and an attached Joint Book of Documents (“the JBD”) for the sole purpose of the Employer’s preliminary motion, in the following terms:

Agreed Statement of Facts

4The Complainant was dismissed with cause by way of letter dated August 16, 2023. This letter is attached at Tab 1.

5By email dated August 21, 2023 at 5:33pm, the Complainant provided the Deputy Solicitor General with notice of his proposal to file a complaint with the Board with respect to the dismissal for cause on August 16, 2023 (the “Notice of Proposal”).

6The Parties recognize that the Notice of Proposal was filed within the timelines set out in the Regulation.

7On August 22, the Employer replied to acknowledge receipt of the Complainant’s Notice of Proposal.

8By email dated August 24, 2023 at 12:24pm, the Employer provided a response:

This correspondence serves to notify you that the Employer will not be meeting with you to hear your notice of proposal to make a complaint. Should you wish to file your complaint with the Public Service Grievance Board, you are required to do so in accordance with the timelines set out in Regulation 378/07 of the Public Service of Ontario Act, 2006. Here is a link to the regulation for your reference: O. Reg. 378/07: PUBLIC SERVICE GRIEVANCE BOARD: COMPLAINTS AND HEARINGS (ontario.ca)

The Employer reserves the right to raise any and all preliminary objections regarding your complaint.

In other words, the Employer informed the Complainant that the Regulation establishes timelines for the proper filing of a complaint, and provided notice that it would bring preliminary objections based on a failure to comply with the timelines. This email is attached at Tab 2.

9Because the Notice of Proposal was provided to the Deputy Solicitor General on August 21, 2023, pursuant to subsection 9(5) of the Regulation, the dispute resolution period commenced on August 21, 2023 and ended on September 20 2023.

10By email dated September 5, 2023 at 9:45pm, the Complainant filed the Complaint dated September 5, 2023.

Please accept my completed form 1 application and appendices for an incident that occurred on June 13th, 2023.

This email and its attachments are attached at Tab 3. For reasons unknown to the Employer and the Complainant, contrary to its usual practice, the Board did not process this filing, or provide the Employer with an acknowledgement letter and the Complainant’s Form 1.

11The Complainant’s Form 1 identified his legal representative as Mr. Andrew Camman of Spero Law, and provided his counsel’s address, email, and telephone number. The Form 1 is dated Tuesday, September 5, 2023.

12On September 6, 2023 at 9:00am, the Board’s Registrar replied to the Complainant, copying Ms. Sharifi Kadri (Litigation Law Clerk at Spero Law). The email begins with the following paragraph:

Thank you for submitting your PSGB Form 1 Application dated September 5, 2023. In reviewing your application, I note that the Notice of Proposal to your Deputy Minister is not attached and is required as part of the application.

The Employer was not copied on this correspondence, or given any notice of it. Moreover, the Board’s Registrar did not instruct the Complainant to copy the Employer on his correspondence with the Board. This email is attached at Tab 4.

13On September 6, 2023 at 10:17am, the Complainant replied to the Registrar’s email, copying Ms. Kadri. The Employer was not copied on this correspondence, or given any notice of it. This email and its attachments are attached at Tab 5.

14On September 6, 2023 at 12:37pm, the Registrar replied again, copying Ms. Kadri. The Employer was not copied on this correspondence, or given any notice of it. The email begins and ends with the following paragraphs:

Thank you for providing a copy of your Notice of Proposal dated August 21, 2023. It appears that the PSGB Form 1 Application has been submitted to the Board prematurely, dated September 5th, 2023.

Based on the above information, I invite you to reconsider the applicability of those sections of the Regulation and whether you wish to file this application now.

This email and its attachments are attached at Tab 6.

15On September 12, 2023 at 9:45am, surprised that the Board had not yet processed his Complaint, the Complainant wrote to the Board once again:

I resent my grievance on September 6th as per the instructions given but have yet to hear a reply to confirm that it has been received. Can you please tell me the state of my grievance please? Thank you.

This email is attached at Tab 7. The Employer was not copied on this email.

16At 9:57am, the Board’s Registrar sent a response to the Complainant by replying to the email dated September 6, 2023 at 12:37pm, and copying the Complainant’s counsel and Ms. Kadri.

If you could please review my email dated September 6, 2023 (below), at the end of the email you were invited to reconsider the applicability of the sections of the Regulation and whether you wish to file this application now. Please advise.

This email is attached at Tab 8. The Employer was not copied on this correspondence, or provided with any notice of it.

17On or around September 13 or 14, 2023, the Complainant had a telephone conversation with the Board’s Registrar. According to the Complainant, the Registrar provided him with a “definitive date” for a timely filing, and based on this advice, the Grievor filed at that time. The Employer has no direct knowledge of this conversation or what was said. The Employer was not notified of this call or its purpose, invited to participate in it, or given an opportunity to take a position or provide argument on any substantive or procedural issue.

18On September 22, 2023 at 10:59am, the Complainant filed his Complaint with the Board for the third time, copying his Counsel, Ms. Kadri, and the Board’s Registrar. In this email, the Complainant expressed his gratitude to the Registrar:

I would like to thank the Public Service Grievance Board, specifically Ms. Caillier for clarifying the submitting dates and to apologize for submitting too early. I understand that this was an error on my part and I am now submitting my grievance at the appropriate time.

The Employer was not copied on this email. This email and its attachments are attached at Tab 9.

19On September 25, 2023 at 10:06pm, the Registrar sent an acknowledgement letter and the Complainant’s Form 1 to the Employer. This email and the attachments are attached at Tab 10. The acknowledgement letter begins with the following sentence:

Notice is hereby given that the Public Service Grievance Board is in receipt of the above captioned grievance, dated September 22, 2023, and received on September 22, 2023, a copy of which is enclosed.

But the Complainant’s Form 1 was dated September 5, 2023, and the Board received the Complainant’s Form 1 by email dated September 5, 2023.

20By email dated December 1, 2023 at 10:35am, Counsel for the Employer inquired into the possibility of typographical errors in the Board’s acknowledgement letter:

I’m counsel on this matter for the Employer. I’m working on my reply in preparation for the case management call, and I’m wondering if there’s a typo in the Board’s acknowledgement letter. According to the acknowledgement letter, the complaint is dated September 22, but the two copies of the Form 1 attached to your email are both dated September 5. Would you please advise whether the acknowledgement letter is accurate? Also, for the Book of Documents, would you please send me the email where the Complainant filed the Form 1?

This email is attached at Tab 11.

21On December 4, 2023 at 10:14am, the Board’s Registrar replied to Employer Counsel’s email, also copying the Complainant’s Counsel:

In response to your enquiry of December 1, 2023, Mr. Gilkes initially filed his application with the Board on September 5, 2023, and the Form 1 was dated September 5. I responded advising him that his application appeared to be premature and asking whether he wished to proceed with it at that time. That email exchange is attached. I was advised by Mr. Gilkes either on September 13th or 14th, by telephone, that he did not wish to proceed with the initial application at that time. Mr. Gilkes then resubmitted his application on September 22, 2023. His email doing so is attached. The application was therefore processed as having been submitted on that date, however Mr. Gilkes did not change the date that he signed the Form 1.

The email is attached at Tab 12, and attached to it were the emails found at Tabs 3 to 9.

22In its Form 2, the Employer took the position that the Board lacks jurisdiction to hear the Complaint because it was filed prematurely during the legislated dispute resolution period.

23The Complainant accepts that the filings on September 5, 2023 and September 6, 2023 were premature.

The Employer’s Submissions

24The Form 1 application dated September 5, 2023, lacking the Notice of Proposal to the Deputy Minister as required, and the same Form 1 submitted to the Board on September 6, 2023 with the Notice of Proposal attached, were filed prematurely during the dispute resolution period as stipulated at Subsections 9(1) & (5) of the Regulation. The premature filing of the Complaint deprives the Board of jurisdiction to entertain it.

25The Form 1 filing of September 22, 2023 was improper and irremediably faulty. The underlying Complaint was not amended and included Appendix A, Appendix B and the Notice of Proposal. The Board Rules do not permit the filing of the same materials on a different date. The Board lacks jurisdiction to entertain the Complaint as filed on September 22, 2023.

26Moreover, the third filing of the Complaint on September 22, 2023 was done so on the ex parte legal advice of the Board Registrar. But for that interference of the Registrar, there would have been no filing of the Complaint on September 22, 2023.

27 Subsection 23 (1) of the Act stipulates at paragraph 1 that subject to paragraph 2 the Statutory Powers Procedure Act and any rules made under that Act by the Board apply to proceedings before the Board. Paragraph 2 provides that on the coming into force of a regulation made under subsection (2) establishing procedural rules for proceedings before the Board, the Statutory Powers Procedure Act and any rules made under that Act cease to apply to proceedings before the Board to the extent that that Act and any rules made under it conflict with the regulation. Regulation 378(7) was promulgated in 2006.

28The Board caselaw holds that the timelines stipulated in the Regulation are substantial, not procedural and cannot be waived. The Board Rules stipulate at section 1.F that “Filing” means the effective delivery of documents to the Registrar of the Board. Rule 11 provides that the timelines stipulated by the Regulation are triggered by the filing of the Complaint. Pursuant to Rule 14, the Board is to compile a record of the proceedings before it, and Rule 15 provides for dismissal of the Complaint without a hearing where it fails to make out a case for the orders or remedies requested.

29The Rules provide in mandatory language that the Board process a Complaint when filed. Upon acknowledging receipt of the Complaint on September 6, 2023 the Board ought to have processed it. There is no legal authority allowing for the Board not to process a Complaint when filed.

30It is only by e-mail dated September 25, 2023, that the Registrar acknowledged to the Employer by letter addressed to the Deputy Minister that it was in receipt of a Complaint dated and received on September 22, 2023. That acknowledgement letter was misleading The Board did indirectly what it could not do directly, treating the Complaint as if filed on a later date than it had been filed.

31The Complaint was neither amended in accordance with Board Rule 8, nor withdrawn by his telephone conversation with the Registrar. In any event, upon withdrawal, a Complainant cannot submit the same Complaint and materials on a subsequent Complaint as was done here

32The correspondence and telephone conversation which the Registrar had with the Complainant was ex parte, hence prejudicial to the Employer. Arguably, this conduct raises a reasonable apprehension of bias on the part of the Board, depriving it of jurisdiction to entertain the Complaint on the merits.

33In support, Counsel referenced the following jurisprudence:

Hamilton v Ontario (Community Safety and Correctional Services), 2019 CanLII 42439 (ON PSGB); LaForest v Ontario (Solicitor General), 2020 CanLII 10543 (On PSGB); Morris et al v Ontario (Community Safety and Correctional Services), 2018 CanLII 109220 (ON PSGB); Drakos v Ontario (Solicitor General), 2023 CanLII 102931 (ON PSGB); St. Amant v Ontario Ministry of Community Safety and Correctional Services), 2013 CanLII 4673 (ON PSGB); Bourgeault v Ontario (Community Safety and Correctional Services), 2013 CanLII 84294 (ON PSGB); Gauvin v Ontario (Community Safety and Correctional Services); 2017 CanLII 89956 (ON PSGB); Ihasz v Ontario (Finance) 2015 CanLII 89901 (ON PSGB); Hasted v Ontario (Solicitor General), 2019 CanLII 78782 (ON PSGB); Rabaey v Ontario (Children, Community and Social Services), 2024 CanLII 16515 (ON PSGB); Trillium v Cassels Brock & Blackwell et al, 2013 ONSC 1789; Hunt v The Owners, Strata Plan LMS 2556, 2018 BCCA 159); 2539943 Ontario Inc v Addiction Recovery Network Inc., 2020 CanLII 57707 (ON LRB); Taucar v University of Western Ontario, 2015 HRTO 515.

The Complainant’s Submissions

34Counsel submits that by its submissions, the Employer is obfuscating the purpose of the Act and of the Board. It is offensive to suggest that what happened to the Employer has brought the administration of justice into disrepute. To the contrary, were the Complainant to lose his right to a hearing before the Board, the administration of justice would be brought into disrepute.

35To suggest that the Complainant will lose his right to a hearing because an administrative clerk provided perfunctory advice to him to ensure the proper filing of the Complaint, and that the Employer has been prejudiced thereby, is absolutely wrong. The timelines set out in the Regulation are confusing, and the Employer is implying that there is no possibility to correct a mistake in applying them. The September 22, 2023 filing is entirely proper.

36The general rules of interpretation found in the Legislation Act, 2006, SO 2006, c.21, Sch F, stipulate at section 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.

37Once he received assistance from an administrative clerk to exercise his narrow rights, the Complainant’s filing on September 22nd fell within the window set out in the Regulation for filing his Complaint. There is no provision in the Regulation that the Form 1 Notice of Complaint be dated within that window; rather it must be filed within the 14-day window.

38The Complainant has a right to file a Complaint under the legislation, and the draconian approach the Employer takes, relying on the confusion within the legislation, deprives the Complainant of the right to have his Complaint heard by the Board. There is no caselaw that shows that this right of the Complainant should be taken away.

39The Employer’s preliminary motion should be dismissed.

The Employer’s Reply

40The only issue to be determined is whether the Board has jurisdiction to entertain this matter. The September 5th filing was improper because premature. Therefore, the Board has no jurisdiction to proceed. The Complainant has a right to a hearing before the Board only if his Complaint was properly filed.

41The right of the Employer to a fair hearing has been lost due to the conduct of the Board, which raises a reasonable apprehension of bias. But for the ex parte communication of the Registrar, there would be no matter to be heard today, for the Board has lost jurisdiction.

42To correct his mistake of September 5th the Complainant ought to have sought leave of the Board to withdraw his Complaint and refile it properly, but he did not do so. It is relevant that the Complainant had legal representation at this time.

Analysis and Decision.

43At issue here is whether the Board has jurisdiction to entertain this Complaint on the merits. I address the issue based on the agreed Statement of Facts, the submissions of the parties, and the caselaw cited by the Employer. By way of preliminary objection, the Employer submits that the Complaint, dated September 5, 2023 was prematurely filed on that date or the day following, September 6th. The provisions of the Regulation here engaged are subsections 9(1) & (5) and 10(1) & (2). These stipulate:

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.

9(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 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.

10(2). The complainant must set out the reasons for the complaint and must include the notice of the proposal, if any, to make the complaint and such other information and documents as the Board may specify.

44The timelines stipulated in the Regulation for the filing of a Complaint have been held by the Board to be mandatory, the Board having no jurisdiction to entertain a Complaint on the merits where they are not complied with by a Complainant. In Re Hamilton supra, the Board wrote:

2The Board has consistently held that the time limits in Regulation 378/07 are mandatory. If they are not met, the Board is deprived of jurisdiction to hear the complaint. The Board has also consistently held that it does not have the discretion to relieve against these time limits.

3the parties’ disagreement about whether the complaint was filed within the time limits required by the regulations is a mixed question of fact and law.

45In Re Hamilton, the Complaint was filed three days before the close of the dispute resolution period. It was dismissed and the Board did not proceed to a hearing on the merits. To the same effect, see Re Laforest supra, where the Complaint was filed nine days before the close of the dispute resolution period; Re Morris supra, where the Complaint was filed two days before the close of the dispute resolution period; Re Drakos supra, where the Complaint was filed one day before the close of the dispute resolution period; and Re Gauvin supra, where the Complaint was filed two days before the close of the dispute resolution period;

46Here, the Notice of Proposal was sent to the Deputy Minister on August 21, 2023. Pursuant to subsection 9(5) of the Regulation, the dispute resolution period commenced on that date and expired on September 20, 2023, and pursuant to subsection 10(1) of the Regulation, the fourteen day “window” of opportunity to file the Complaint commenced on the latter date. Given that timeline, whether the Complaint filed with the Board on September 22, 2023 was timely filed depends on the effect of the documents submitted by the Complainant on September 5 and/or September 6, 2023.

47The Employer submits that the Complaint was filed prematurely on September 5th and/or September 6th. We can deal with the earlier date summarily. The Complainant failed to attach his Notice of Proposal to his September 5th filing which was forwarded to the Board at 9:45 pm. By email dated September 6th at 8:59am, the Registrar advised the Complainant that the application did not include the Notice of Proposal, and suggested that he review the Board FAQs¹, Rules and Practice Notes, providing the links to them, the important timelines being highlighted. At 10:17am on September 6th the Complainant emailed the Board with the same Form 1 application together with Appendices and including the Notice of Proposal, and thanked the Registrar “for your assistance in clarifying this issue”.

48Subsection 10(2) of the Regulation requires the Notice of Proposal to be included with the Complaint. As it was not, the September 5th submission does not meet the definition of “filing” in the definitional section 1 of the Board Rules, as it was not an “effective delivery of documents to the Registrar of the Board.” (emphasis added). This leaves for consideration the documents submitted on September 6th filing and September 22nd.

49As noted above, on September 6, 2023, at 10:17 am, the Complainant submitted the same Form 1 with appendices “A” and “B” together with the Notice of Proposal. However, the Registrar did not process the application at that time. Rather, she emailed the Complainant at 12:28pm, that “ it appears that the PSGB Form 1 Application has been submitted to the Board prematurely”. Once again she suggested that the Complainant review the Board FAQs, Rules and Practice Notes, providing links to them, and highlighting the important timelines. She concluded the email as follows:

… Based on the above information, I invite you to reconsider the applicability of those sections of the Regulation and whether you wish to file this application now.

50On September 12, 2024 at 9:44 am, the Complainant emailed the Registrar to advise that he had not yet received confirmation of receipt of the application and inquiring of the state of his grievance. The Registrar replied at 9:57am suggesting that the Complainant review her e-mail of September 6th and noting:

At the end of the email, you were invited to consider the applicability of the sections of the Regulation and whether you wish to file this application now. Please advise.

51On September 13 or 14, 2023, the Complainant had a telephone conversation with the Board’s Registrar. According to the Complainant, the Registrar provided him with a “definitive date” for a timely filing. The Registrar states that during the phone call, the Complainant told her that he did not want to proceed with the initial application at that time. The Complainant later submitted the same Form 1 with Appendices at 11:00am on September 22, 2023 well within the “window” for timely filing stipulated at subsection 10(1) of the Regulation. In doing so he wrote:

In effect, given the Registrar’s invitations of September 6th and 12th noted above, I find that the Complainant had withdrawn the application he had submitted on September 6, 2023 in his phone call with the Registrar, which he then confirmed by the filing of September 22nd.

52The Employer was not copied on the September 6th and 12th email correspondence between the Registrar and the Complainant, nor was it privy to the telephone conversation between them of September 13th or 14th. The office of Counsel for the Complainant was copied on the emails.

53The Board processed the application filed on September 22nd in accordance with its usual practice. By letter dated September 25, 2023, addressed to the Deputy Minister, and copied to Treasury Board Secretariat (“TBS”), the Registrar acknowledged receipt of the Form 1 application as follows:

Please complete the attached "Form 2" and return it to the Public Service Grievance Board no later than 60 days of receipt of this notice.

54By e-mail dated December 1, 2023, Employer Counsel wrote to the Registrar as follows:

55The Registrar responded to Employer Counsel by email dated December 4, 2023, copying Complainant’s Counsel:

56From the foregoing, I conclude that the Form 1 application submitted to the Board on September 6th was, as that submitted on September 5th , treated by the Registrar as not being effectively filed, inasmuch as it was premature, falling within the 30 day period provided for dispute resolution under Regulation subsection 9(5). Therefore, it was not immediately processed by the Board but was withdrawn by the Complainant before any fresh steps had been taken.

57This leaves for consideration the question whether the Form 1 application submitted to the Board on September 22, 2023, was effectively filed. That the Form 1 was dated September 5, 2023 is not determinative of when it was effectively filed within the meaning of the Board Rules. The Employer submits that the September 22nd application is irremediably faulty by reason of the ex parte correspondence and telephone conversation between the Registrar and the Complainant on September 6th, 12th and 13th /14th. Counsel references the decision of the British Columbia Court of Appeal in Hunt v The Owners, Strata Plan supra in support. There, the Court addressed the issue as follows:

85What would an informed person, viewing the matter realistically and practically, and having thought the matter through, conclude about the impartiality of the arbitrators, in light of the ex parte communications? Would one think it is more likely than not that the decision-maker or decision-makers, whether consciously or unconsciously, would not decide fairly?

86It is well-accepted in the context of judicial proceedings that a judge ought not to discuss any part of an ongoing case with only one party to the dispute, or a witness. If a judge were to discuss a case with only one party, even in good faith, this could be sufficient to create a reasonable apprehension of bias.

87As explained by Dickson J. in Kane v. University of British Columbia, 1980 CanLII 10 (SCC), [1980] 1 S.C.R. 1105 at 1113–1114:

It is a cardinal principle of our law that, unless expressly or by necessary implication, empowered to act ex parte, an appellate authority must not hold private interviews with witnesses … or, a fortiori, hear evidence in the absence of a party whose conduct is impugned and under scrutiny. Such party must… “. . . know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. . . Whoever is to adjudicate must not hear evidence or receive representations from one side behind the back of the other.”…

[Emphasis added; citations omitted.]

88A number of cases have considered the problem of a decision-maker communicating privately with only one party to the dispute.

58The key to Hunt v The Owners, Strata Plan and those cited by it, is that it is decision-makers who are foreclosed from communicating ex parte with one or the other of the parties or their counsel during proceedings before them. But that is not the case here. The correspondence and telephone conversation at issue were between the administrative staff of the Board at a preliminary stage of the process, long before the Complaint was taken up on the merits by a decision-maker i.e. the Chair or a Vice-Chair of the Board. In these circumstances, I find that the ex parte correspondence and telephone conversation were not fatal to the Complainant’s case, nor can they be said to have raised a reasonable apprehension of bias. Furthermore, there is no evidence that these communications were prejudicial to the Employer which had the benefit of the full period for dispute resolution and, in accord with the ordinary Board process, will have a full opportunity to participate in the hearing on the merits of the case.

59That being said, there are limits to what may be discussed ex parte. The caselaw makes it clear that even the administrative staff of a court or an administrative tribunal are precluded from offering legal advice to a party filing an application before it. In Trillium v Cassels Brock & Blackwell supra, the Court distinguished legal advice from legal information as follows:

How do I decide whether documents relating to CADA’s communications to and from its legal counsel are privileged? I can do no better than to adopt the approach that was put forward by both CADA and CBB. One must differentiate between legal information and legal advice. Legal information consists of providing answers regarding the law generally, the options available, and the relevant legal procedures that might pertain.^[7] For example, information provided by CBB to CADA about the federal bankruptcy process and the CCAA and how it would affect the dealers is legal information, not legal advice.

12Legal advice, on the other hand, is advice that is given with respect to the client’s legal rights and duties and is given on the understanding that it may well be followed.^[8] It depends on the individual circumstances of the recipient^[9] and consists of a much more personalized opinion on the way the law would apply in a particular case or about the particular decision that should be made in the circumstances.^[10] Legal advice involves the interpretation of legal principles “to guide future conduct or to assess past conduct.”^[11] In short, legal advice is particularized advice that is directed to the client’s legal rights or duties and in essence says “here is what I think you should do” as opposed to “here is some information about the CCAA and the federal bankruptcy process.”[citations omitted].

60Measured against that test how ought one to characterize the correspondence between the Registrar and the Complainant of September 6th and 12th and their telephone conversation of September 13th/14th ? On both September 6th and 12th the Registrar suggested that the Complainant review the Board FAQs, Rules and Practice Notes, providing links to them, and highlighting the important timelines. On both dates she concluded the email correspondence by inviting the Complainant to reconsider the sections of the Regulation highlighted and whether he wished to file the application at that time. As noted above at paragraph 39 it is clear that the Registrar treated the September 6th application as not being effectively filed as it was “submitted to the Board prematurely.” The language used is telling— the application was “submitted” not “filed”. I have no difficulty concluding that the Registrar’s correspondence of September 6th and 12th was legal information, not legal advice.

61But what of the telephone conversation of September 13th/14th between the Registrar and the Complainant? The agreed Statement of Facts between the Parties states “According to the Complainant, the Registrar provided him with a “definitive date” for a timely filing, and based on this advice, the Grievor filed at that time.” Yet in evidence, we have the Complainant’s statement to the Board on submitting the application that “I would like to thank the Public Service Grievance Board, specifically Ms. Caillier for clarifying the submitting dates”. [emphasis added]. And in her response to Employer Counsel of December 25, 2023, the Registrar writes: “ I was advised by Mr. Gilkes either on September 13th or 14th, by telephone, that he did not wish to proceed with the initial application at that time.”

62The issue is somewhat murky. However, on reviewing in its entirety the evidence noted at the foregoing paragraph, I have concluded, on the balance of probabilities, that in the telephone conversation of September 13th/14th, the Registrar provided the Complainant with legal information, not legal advice. She did not give “particularized advice that is directed to the Complainant’s legal rights or duties” or an “opinion on the way the law would apply in a particular case or about the decision which should be made” i.e. legal advice; rather she provided legal information “regarding the law generally, the options available, and the relevant legal procedures that might pertain”.

63For all of the foregoing reasons, the Employer’s preliminary motion that the Board lacks jurisdiction to entertain this case on the merits is dismissed.

Dated at Toronto, Ontario this 23rd day of May 2024.

Footnotes

FAQs are a series of questions and answers published by the Board on its website to assist a Complainant to navigate a complex set of legal procedures and timelines contained in the Regulation.

Gilkes v. The Crown in Right of Ontario (Ministry of the Solicitor General), 2024 CanLII 52260

Case Summary

IN THE MATTER OF AN ARBITRATION

BETWEEN

Complainant

Footnotes