PSGB# P-2024-01841; P-2024-01886

IN THE MATTER OF AN ARBITRATION

Under

THE PUBLIC SERVICE OF ONTARIO ACT

Before

THE PUBLIC SERVICE GRIEVANCE BOARD

BETWEEN

Barnes and Carisse

Complainant

• and -

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

Employer

BEFORE

Andrew Tremayne Vice Chair

FOR THE COMPLAINANTS

Patrick Barnes and Jeanette Carisse

FOR THE EMPLOYER

Braden MacLean Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS COMPLETED

October 1, 2025

Decision

1This decision deals with a preliminary objection by the Employer concerning the complaints of Patrick Barnes and Jeanette Carisse. Mr. Barnes and Ms. Carisse are Staff Sergeants at the Ottawa Carleton Detention Centre (“OCDC”). Before they were appointed Staff Sergeants in 2024, the Complainants had held similar non-bargaining-unit predecessor roles for many years as COM 1 (Sergeant). The issue raised in both complaints is that Staff Sergeants do not receive regularly scheduled breaks or rest periods. This, they allege, is contrary to various workplace legislation and the Employer’s policies. The parties agreed that their complaints would be heard together.

2The Employer’s preliminary objection asks that the complaint be dismissed on two grounds. First, the Employer argues that the Complainants have failed to advance a prima facie case that the Employer has breached a working condition or term of their employment. The Board, therefore, lacks the jurisdiction to award a remedy, submits the Employer. Second, the Complainants have known for many years that a Staff Sergeant and its COM 1 (Sergeant) predecessor role do not have regularly scheduled breaks or rest periods, so they have failed to bring their complaints in a timely manner. Thus, the Employer submits that the Complainants have not complied with the Board’s mandatory timelines as set out in the relevant regulations.

3The Complainants resist the Employer’s objection and ask that the matter proceed to a hearing on its merits. The remedy they seek is to be “paid for all missed breaks since 2010” and to be otherwise made whole. They also ask that provisions be put in place to ensure that Staff Sergeants receive breaks and rest periods consistent with standard practices at OCDC. The parties agreed that the Board would rule on the Employer's preliminary objection based on written submissions exchanged in accordance with an agreed schedule.

4For this decision, the Board assumes that the facts set out in the complaint are true or could be proven true.

5The Complainants state that all employees at OCDC have scheduled break and rest periods except for Staff Sergeants. If a member of staff does not receive their break or rest period, they are paid for it, but Staff Sergeants receive no compensation, even if they work an entire 12-hour shift alone without a break. The Complainants say that it is the Employer’s responsibility, and specifically the duty of the OCDC senior administration, to manage the institution, which includes implementing a process to address the lack of scheduled break and rest periods for Staff Sergeants

6The Employer says that OCDC relies on its managers, including Staff Sergeants, to arrange for and schedule their own meal and rest breaks. It acknowledges that this often requires managers, including Staff Sergeants, to arrange for their colleagues to cover their positions. The Employer asserts that there is no expectation that managers, including Staff Sergeants, work an entire shift without any breaks whatsoever. The Complainants do not disagree that these are the Employer’s expectations, nor do they dispute that they are expected to schedule their own meal and rest breaks. They remain firm in their view that this is unfair and unacceptable.

7The Complainants argue that the Employer’s failure to provide them with regularly scheduled breaks and rest periods is contrary to: the Ontario Employment Standards Act, 2000 the Canada Labour Code, Bill 168 (the Occupational Health and Safety Amendment Act (Violence and Harassment in the Workplace) 2009), the Employer’s Respectful Workplace Policy, and the Ontario Correctional Services Code of Conduct and Professionalism (COCAP).

8The Board only has the powers granted by the Public Service of Ontario Act and the regulations made under that legislation, notably Regulation 378/07, which states as follows:

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,

9The Board has said it does not have jurisdiction to award remedies such as those sought by the Complainants unless a contractual term already provides that they are entitled to it. In other words, if the Complainants had identified a working condition or term of employment that applies to them, the Board could enforce it. The Board does not have the power to dictate working conditions or terms of employment or create new ways to compensate, nor does it have the power to compel the Employer to enforce a working condition or term of employment that isn’t there. See, for example, MacDonald et al. v. Ontario (Community Safety and Correctional Services), 2014 CanLII 76836 (ON PSGB); Ilika v. Ontario (Community Safety and Correctional Services), 2014 CanLII 76834 (ON PSGB), Hasted/Berezowsky v. Ontario (Community Safety and Correctional Services), 2015 CanLII 7473 (ON PSGB), Boucher v. Ontario (Community Safety and Correctional Services), 2018 CanLII 119631 (ON PSGB), Bazger v. Ontario (Ministry of the Solicitor General), 2021 CanLII 37123 (ON PSGB), and Wickham-Johnson v. Ontario (Ministry of the Solicitor General), 2021 CanLII 37119 (ON PSGB).

10The Board has also held that, in the absence of a working condition or term of employment that the Board can enforce, it does not have jurisdiction to order a remedy based solely on the belief that something is unfair. See, for example, MacDonald et al. v. Ontario (Community Safety and Correctional Services), 2014 CanLII 76836 (ON PSGB) and Laird et al v. Ontario (Community Safety and Correctional Services), 2009 CanLII 43638 (ON PSGB), and Ransome v. Ontario (Ministry of Health and Long-Term Care), 2006 CanLII 42782 (ON PSGB).

11The problem with the Complainants’ position is that they have not identified any working condition or term of employment that requires the Employer to provide them with regularly scheduled breaks and rest periods. The Ontario Employment Standards Act, 2000 has provisions on hours of work and eating periods. However, the relevant section of the Act (Part VII) does not apply to Crown employees (s. 2.1 of Regulation 285/01), nor does it apply to persons whose work is of a supervisory or managerial nature (s. 4 of the same Regulation). The Complainants meet both criteria and are therefore exempt from Part VII. The Canada Labour Code does not apply to the Complainants at all, because they are not employed in connection with a federal work or undertaking.

12Turning to the workplace legislation and policies that apply to the Complainants, they have identified Bill 168, the Employer’s Respectful Workplace Policy, and the COCAP. The Complainants have not identified any specific legal or policy provision in any of these documents that speaks to break and rest periods.

13In Ransome, the complaint was about pay inequality among managers. Among other things, managers who had recently been promoted out of the bargaining unit were earning considerably more than more experienced managers. The Board concluded that the complaint could not succeed because the complainant could not establish that it was a term of condition of his employment that he was entitled not to be paid less than those promoted after him or that he was otherwise entitled to be paid or differently; nor could it be established that the complainant’s pay treatment was discriminatory, arbitrary, or in bad faith. The Board said this:

The issue is primarily a question of contract law. The Board must answer the question: Is it a term or condition of the grievor’s contract with the employer that he should be paid the additional money he claims? It is clear that there is no specific provision which the grievor has identified that would entitle him to the significant wage increases he claims. His grievance is rooted instead in the general statements in the employer policy and guidelines about fairness and equity, which for the purposes of this motion will be assumed to form part of the grievor’s contract of employment. However, they are general statements of intention, with no promise to the grievor that sufficiently addresses his claim. What is fair is a question about which people frequently differ, often with well-thought out reasons for their view. It is important to look at the provisions of those policies to see if they provide the answer to the question: what is a fair wage for this grievor? Having done so, the Board finds that there is no answer to be found in the documents submitted anywhere near specific enough to grant the grievor what he claims. The grievor’s answer to that question is to the effect that a fair wage would be one that afforded him essentially the same increases as the bargaining unit received, at a time when he was not a member of the bargaining unit, and/or a wage that guarantees that he is not paid less than managers promoted later than he was. Although he is certainly entitled to that view, his contract of employment, on the material before me, does not contain a promise to that effect.

Especially in the managerial setting, where contracts of employment are not collective, but individual, it is not enough to say that it is fair or would be more fair if a grievor was paid more, or not less, than some other employee. In order to succeed, a grievance must show that the difference is improper, either because it offends a specific term or condition of employment, or some more general principle of law. In that respect, the grievor argued that the difference is discriminatory. However, there is nothing to suggest that the differential in payment was for an improper reason, such as discrimination on the basis of race, gender, religion or some other identified illegal ground, or that the decision to pay the grievor in the manner that it has, was somehow arbitrary, or in bad faith. The facts before me indicate that the grievor was paid in accordance with the Pay On Assignment policy when he was promoted into management and there is nothing to suggest he has not been paid according to the other pay provisions applicable to his classification since. What he argues is that there should be a term or condition of his employment that would ensure he was paid better than those promoted or hired later. This is a complaint about the absence of a term or condition of employment of the kind he would like, rather than a request to remedy a breach of an identifiable existing term or condition of his employment. The facts before me simply do not form a sufficient basis for such an argument to succeed. What the grievor is claiming would be tantamount to creating a term or condition of employment, rather than awarding a remedy for the breach of an existing term or condition of employment.

(pages 6-8, emphasis added)

14Mr. Barnes and Ms. Carisse argue that the system that denies them regularly scheduled breaks and rest periods "systematically discriminates against Staff Sergeants." However, there are no facts set out in their complaints suggesting that this situation arose for an improper reason, such as discrimination on the basis of race, gender, religion, or any other recognized illegal ground. Nor have the Complainants identified any facts, either assumed to be true or that could be proven, that point to a decision that is somehow arbitrary or in bad faith. The Complainants are asking the Board to create a new working condition or term of employment that would apply to them. As the Board has said many times, it is unable to do this. The Complainants have therefore not established a prima facie case that their complaints could succeed, nor have they shown that the Board could provide them with a remedy.

15Turning to the Employer's objection to the timeliness of the complaints, Regulation 378/07 sets out a particular set of time limits or "windows" of time in which steps must be taken to file complaints about discipline or terms and conditions of employment. For complaints concerning a working condition or a term of employment, notice of a proposal must be given to the deputy minister within 14 days after the complainant becomes aware of the working condition or term of employment that gives rise to the complaint. Here, both Complainants provided their notice of proposal on August 30, 2024.

16The 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 consistently said 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) deals specifically with the time limits for sending the notice of proposal to file a complaint. The Board reached the same conclusion: the time limits in the Regulation go directly to the Board's jurisdiction to deal with a complaint.

17Therefore, the issue to be decided is when did the Complainants become "aware of the working condition or term of employment giving rise to the complaint" because once that is said to have happened, the notice of proposal must be filed within 14 days. If the notice is filed outside that time limit, the Board is without jurisdiction to deal with the complaint, which was filed later. The Board's decisions in St. Amant and Hasted/Berezowsky have interpreted and applied the language in s. 8(1)(4) of Regulation 378/07, namely the section that sets out the time limits around when a notice of proposal is to be filed, so some discussion of the principles in these carefully reasoned decisions is helpful.

18In St. Amant, the complainant had requested a 3-week unpaid leave of absence. The employer did not provide a timely answer to the request, so on the day after the leave would have ended, the complainant wrote to the employer saying that she would not be taking the leave. One month later, she gave notice to the deputy minister, stating her intention to file a complaint regarding the employer's failure to provide a timely response to her request, and later filed a complaint with the Board. The employer argued that the Board lacked jurisdiction to address the complaint because the notice to the deputy minister was untimely.

19The Board found that the complainant became aware of the working condition or term of her employment that gave rise to the complaint at the same time she wrote to the employer stating that she would not be taking the leave. The employer's alleged failure to provide a firm answer to her request, which was the essence of the complaint, had "brought the matter to a head" the day after the leave would have ended, which was also the day the complainant had written to the employer to say that she would not be taking the leave. As a result, the notice given to the deputy minister fell outside the 14-day time limit set out in s. 8, and the Board was without jurisdiction to deal with the complaint.

20In Hasted/Berezowski, the complainants were scheduled for on-call duties throughout their acting assignments, and they performed this work without additional compensation and without complaint or challenge. This was the working condition that gave rise to their complaint, and it ended when the acting assignment ended. In St. Amant, the employer’s failure to provide a timely answer made it impossible for the complainant to take the leave of absence. When the requested period of leave ended, still without an answer from the employer, and the complainant confirmed that she would not be taking the leave, it was clear that the working condition that gave rise to the complaint was fully formed. Hence, the 14-day time limit began to run from that time. In both these cases, the Board found that the complainants became aware of the working condition or term of employment giving rise to their complaints when they had all the necessary facts to ground the complaint. After that point, nothing changed, so it was reasonable to expect that the complainants would begin the complaint process at that time.

21Here, both Complainants have been Staff Sergeants since January 2024. Before that, they both held similar non-bargaining unit managerial positions as COM 1 (Sergeant): Mr. Barnes since 2012 and Ms. Carisse since before that. Both Complainants state in the Part C. Particulars of the Application section of their Form 1 Applications, “Ever since I entered the ranks of Mangement, there have been no provisions that address breaks/rest periods.” Both are seeking to be “paid for all missed breaks since 2010” and to be otherwise made whole. It stands to reason that the Complainants have been aware that they have not had regularly scheduled break and rest periods for a very long time. At the very least, they have been aware of this since they began their current roles in January 2024, so the situation that has given rise to their complaints became fully formed a long time ago. This means that a notice of proposal filed on August 30, 2024 is untimely. As a result, the Board lacks the jurisdiction to hear and determine these complaints.

22For the reasons set out above, the complaints are dismissed and will not proceed to be heard on the merits.