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Home My WebLink AboutP-2022-9212.Sivalingam.23-02-14 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-2022-9212 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE OF ONTARIO ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Sivalingam Complainant - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Thomas Kuttner, KC Vice Chair FOR THE COMPLAINANT Karan Sivalingam FOR THE EMPLOYER Dimitrios Molos Treasury Board Secretariat Legal Services Branch Counsel SUBMISSIONS Complainant: October 23, 2022 Employer: January 6, 2023 - 2 - Decision [1] This is a complaint filed on October 23, 2022, 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, Karan Sivalingam, a south Asian Sergeant and Institutional Training Manager at the Toronto South Detention Centre (TSDC), alleges that the Employer allocated overtime unfairly, unequally and inequitably for the position of Compliance for Antigen Testing Sergeant. [2] On August 30, 2022, Mr. Sivalingam filed with the Deputy Minister his Notice of Proposal to file an Application to the Public Service Grievance Board. On September 28, 2022, Mr. Sivalingam met with Sarah Jones-Charles, Deputy Superintendent Operations, and other Ministry officials by Microsoft Teams to have his Complaint heard. By letter addressed to Mr. Sivalingam, dated October 17, 2022, Ms. Jones-Charles, determined that there has been no violation of any term or condition of Mr. Sivalingam’s employment under the Act or any other legislation and/or government directive. [3] A case management conference call was held in this matter, by way of video transmission, on December 2, 2022. At that time, the Employer raised the issue of the jurisdiction of the Board to entertain this matter, inasmuch as the Notice of Proposal to file a Complaint was not given to the Deputy Minister within the timeframe stipulated at subsection 8(4).3 of the Regulation. [4] By agreement of the parties, the Employer was to file its Form 2 with the Board on or before January 6, 2023 in which it would challenge the jurisdiction of the Board to entertain this Complaint on the basis that it is untimely. Mr Sivalingam was to file his Reply on or before January 20, 2023. But at his request, he was granted a two-week extension to February 3rd to file his Reply. However, Mr. Sivalingam advised by e-mail on February 6, 2023 that he was “not able move forward any further in this matter.” The Board considers this to have been an election on his part not to file a Reply on the timeliness issue. [5] The Board was faced with the same issue — a failure on the part of a Complainant to file a Reply to the Employer’s preliminary objection to the Board’s jurisdiction to entertain a Complaint — in Bazger and Ontario (Ministry of the Solicitor General), P-2020-1180, 2021 CanLII 37123 (ON PSGB: Thomas Kuttner). There it wrote: [3] However, Mr. Bazger failed to file a Reply, although given an extended opportunity to do so. Under Rule 15[=current Rule 19] of the Board’s Rules, where a party served with notice fails to attend a scheduled hearing, the Board may proceed to dispose of the complaint in that person’s absence and without further notice. By way of analogy under Rule 25[= current Rule 28], the Board may proceed with a complaint in the absence of a Reply from a Complainant, without further notice, where it has determined to proceed by way of written submissions and notice has been given to that effect. Accordingly, my findings - 3 - of fact and this decision are based on the written materials filed in this matter (Form 1 Application and Form 2 Response) and the submissions of the Employer on the Preliminary Objection. This decision deals solely with the preliminary objection made by the Employer to the Board’s jurisdiction to entertain this matter on the merits. [6] In view of the foregoing, the Board issues its Decision solely on the timeliness jurisdictional issue on the basis of the materials filed before it — Form 1 Application and Form 2 Response — and the submissions of the Employer on the Preliminary Objection. For the reasons here given, the Board concludes that it has no jurisdiction to entertain this Complaint. Employer submissions on timeliness [7] The Employer takes the position that the Complaint is untimely, and that the Board should dismiss it for lack of jurisdiction. Subsection 4(1) of the Regulation allows an employee to file a complaint conditional upon their giving notice to the Deputy Minister in accordance with section 8. Pursuant to subsection 8(4) of the regulation a Notice of Proposal to file a Complaint must be filed within 14 calendar days after the complainant becomes aware of the term or condition of employment, or a breach thereof, giving rise to the Complaint. [8] The Board has previously held that this 14-day time limit for providing a Notice of Proposal to file a Complaint is mandatory and that the Board has no discretion to relieve against the time limit. According to his Form 1, Mr. Sivalingam was aware of the alleged violations giving rise to the Complaint by August 15, 2022. As a result, the deadline to file his Notice of Proposal to file a Complaint was August 29, 2022. Mr. Sivalingam filed his Notice of Proposal to file a Complaint one day late, on August 30, 2022. As this filing was untimely, the Board does not have jurisdiction to hear it. [9] The Board has concluded that, where a complainant is even one day late in filing the Notice of Proposal to file a Complaint, it has no jurisdiction to entertain the Complaint. The Board has relied on the myriad cases where it has stressed “both the mandatory nature of the timeliness found in the Regulation and the lack of grant to it of power to extend them”. Because the Complainant was late in filing the required Notice of Proposal to file a Complaint, the Board should dismiss the Complaint of Mr. Sivalingam. [10] Counsel referenced the following Board cases on this issue: Ashdown et al v Ontario (Ministry of Community Safety and Correctional Services), P-2016-0603, 2017 CanLII 16732 (ON PSGB: Marilyn Nairn) at para 20; Barnes and Ontario (Ministry of Community Safety and Correctional Services), P-2016- 0605, 2017 CanLII 25427 (ON PSGB: Marilyn Nairn) at para 8; St Amant and Ontario (Ministry of Community Safety and Correctional Services), P-2012-0601, 2013 CanLII 4673 (ON PSGB: Donald Carter) at paras 6-8; Bourgeault / Schmohl - 4 - and Ontario (Ministry of Community Safety and Correctional Services), P-2012- 3326, 2013 CanLIII 884294 (ON PSGB: Kathleen O’Neil) at paras 27-28; Hasted / Berezowsky and Ontario (Ministry of Community Safety and Correctional Services), P-2014-2665, 2016 CanLII 7473 (ON PSGB: Marilyn Nairn) at paras 18- 19;and Thomas and Ontario (Ministry of the Solicitor General), P-2021-1708, 2022 CanLII 31381 (ON PSGB: Thomas Kuttner) at para 26. Analysis and Decision [11] The provisions of the Regulation here engaged are the following: 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 notice to his or her deputy minister. … 8(4) The notice must be given within the following period: 2. 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. [12] There is no dispute as to the underlying facts giving rise to the Employer’s preliminary objection as to the timeliness of Mr. Sivalingam’s Complaint. In his Form 2, Mr. Sivalingam had written: [13] On Monday August 15, 2022 I had requested to get training on a position as a compliance for antigen testing sergeant. I was denied to get trained on a position that the Deputy Superintendent has claimed does not exist on Monday August 15 2022 was told [sic]that there was no covid sergeant and that position is duties as assigned. [14] August 15th being the date on which Mr. Sivalingam became aware of the working condition or term of employment giving rise to his Complaint, he was required to file his Notice of Proposal to file a Complaint to the Deputy Minister, within 14 days thereafter, ie. on or before August 29, 2022. He filed his Notice of Proposal one day late, on August 30, 2022. [15] It may seem harsh that this de minimis failure to file a timely Notice of Proposal to file a Complaint has the result of disentitling Mr. Sivalingam from having his Complaint considered by the Board on the merits. The remedial objective of the Act and the Regulation is to furnish a forum to non-unionized public servants to have their grievances heard by the Board, yet the Employer seeks to deny the employee such access on technical grounds. The Board has commented on the - 5 - difficulties for an employee to comply with the timeliness provisions of the Regulation. [16] In Dixon and The Crown in Right of Ontario, (Solicitor General), 2020 CanLII 74279, (ON PSGB) former Board Chair O’Neil wrote: [43] This case, and a companion one, being released at the same time, Beach and The Crown in Right of Ontario (Ministry of the Solicitor General) are cases that illustrate the confusing wording and difficulty of application of the wording of the timeliness provisions of the present regulation. The time lines are written in complicated language, with a dispute resolution period of variable length, which can make it difficult to know when it is too late, or even too early, to forward a complaint to the PSGB. This, together with the lack of legislative provision for the extension of time lines in appropriate cases, can lead to unnecessary frustration of parties seeking to solve serious workplace problems, leaving a problem unaddressed, to the detriment of the morale of all concerned. The lack of “user-friendliness” leads to the extensive use of time and resources, including those of the parties and the Board’s administrative staff and adjudicators, in explaining and dealing with technical objections which might be better used for other purposes, including solving the underlying problem that gave rise to the complaint. [44] The Board has nonetheless applied the regulation’s wording consistently in light of the mandatory time lines, in cases where the facts were clear that a breach had occurred. [17] In this case, the facts are clear: Mr. Sivalingam filed his Notice of Proposal to file a Complaint with the Deputy Minister one day late, and the Board lacks a discretion to extend the date for filing it. [18] For the foregoing reasons, the Board concludes that it has no jurisdiction to entertain the within Complaint, which is accordingly dismissed. Dated at Toronto, Ontario this 14th day of February, 2023. “Thomas Kuttner” Thomas Kuttner, KC, Vice-Chair