The URL can be used to link to this page

Home My WebLink AboutP-2022-6772 .McInnes.2023-02.02 Decision Public Service Grievance Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission des griefs de la fonction publique Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 PSGB# P-2022-6772 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE OF ONTARIO ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN McInnes Complainant - and - The Crown in Right of Ontario (Ministry of Children, Community and Social Services) Employer BEFORE Andrew Tremayne Vice Chair FOR THE COMPLAINANT Stuart McInnes FOR THE EMPLOYER Jackson Donszelmann-Lund Treasury Board Secretariat Counsel SUBMISSIONS Written submissions completed on November 1, 2022 - 2 - Decision [1] This decision deals with the employer’s preliminary objection to the Board’s jurisdiction to hear and decide Mr. McInnes’s complaint on the merits. His complaint challenges a disciplinary suspension that the employer imposed on May 12, 2022. On May 29, 2022, Mr. McInnes 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. [2] Mr. McInnes 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 agrees that he did not give notice of his proposal to file a complaint until May 29, 2022, he explains that he did so because he is self-represented and the complaint process is complicated. He also believed that he was within the statutory timelines because May 23, 2022 was a statutory holiday. Mr. McInnes adds that he wanted to wait before he gave notice of his proposal to file a complaint because he was afraid that he would not be confirmed in his new position if his employer knew that he intended to file a complaint. [3] For 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. [4] It is helpful to briefly review the Board’s statutory framework to contextualize the employer’s preliminary objection. [5] The 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”). For this matter, the relevant sections are 3(1) and 8(4) of the Regulation, which state as follows: - 3 - 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: 1. 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. [6] To 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. [7] Once 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 - 4 - 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. [8] The 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) 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. [9] Moreover, 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. [10] In this case, the employer issued a letter to Mr. McInnes informing him of his disciplinary suspension without pay on May 12, 2022. He wrote to his deputy minister on May 29, 2022, submitting notice of his proposal to file a complaint. The letter to the deputy minister is dated May 18, 2022, but it was sent as an attachment to an email to the deputy minister dated May 29, 2022 and Mr. McInnes does not dispute that the latter date is the date he submitted it. [11] The 14 day “window” for submitting a notice of proposal to file a complaint opened when Mr. McInnes received the letter from the employer on May 12, 2022. He was - 5 - required to submit his notice of proposal within 14 days after he received the letter. The Board 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). [12] In this case, although there was a statutory holiday on May 23, 2022, this did not extend the time limit beyond 14 days after Mr. McInnes received the letter from the employer. The 14 day “window” closed at the end of the day on May 26, 2022. Mr. McInnes submitted his notice of proposal to file a complaint on May 29, 2022, which was 3 days too late. [13] Mr. McInnes advances three reasons for this delay: he is self-represented and the complaint process is complicated; he believed he was within the statutory timelines because May 23, 2022 was a statutory holiday; and he wanted to wait before he gave notice of his proposal to file a complaint because he was afraid that he would not be confirmed in his new position if his employer became aware that he intended to file a complaint. As noted above, the reasons for not meeting the time limits in the Board’s statutory framework, however sympathetic or compelling, cannot have any effect on the Board’s ability to hear a complaint on the merits, because the time limits are mandatory. Disposition [14] To summarize, Mr. McInnes was informed of his disciplinary suspension without pay on May 12, 2022. 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 26, 2022. Mr. McInnes sent his notice of proposal to the deputy minister on May 29, 2022, 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. - 6 - [15] The complaint is dismissed and will not proceed to a hearing. Dated at Toronto, Ontario this 2nd day of February, 2023. “Andrew Tremayne” Andrew Tremayne, Vice Chair