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Home My WebLink AboutP-2023-01045.Rabaey.24-04-12 DecisionPublic 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-2023-01045 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE OF ONTARIO ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Rabaey Complainant - and - The Crown in Right of Ontario (Ministry of Children, Community and Social Services) Employer BEFORE Andrew Tremayne Vice Chair FOR THE COMPLAINANT Rabaey, Bob FOR THE EMPLOYER Sean White Treasury Board Secretariat Legal Services Branch Counsel SUBMISSIONS Completed March 7, 2024 - 2 - Decision [1] This decision deals with a request by the complainant, Mr. Rabaey, that the Board reconsider its decision to dismiss his complaint because it was not timely. His complaint challenged a disciplinary suspension that the employer imposed on April 26, 2023. The employer raised a preliminary objection to the Board’s jurisdiction to hear and decide Mr. Rabaey’s complaint on the merits. In a decision dated February 20, 2024, the Board upheld the employer’s objection (Rabaey v Ontario (Children, Community and Social Services), 2024 CanLII 16515 (ON PSGB) and dismissed the complaint because Mr. Rabaey did not file his notice of proposal within the 14 day mandatory time limit. [2] Mr. Rabaey asks that the Board reconsider its decision. The basis of his request is that the allegations that led the employer to conduct a workplace investigation and eventually impose the disciplinary suspension are inaccurate. He adds that he was not listened to during the investigation or during the disciplinary process. Mr. Rabaey goes on to explain why he believes that the process was unfair and expresses his frustration that his concerns have yet to be addressed and that, from his perspective, the matter remains unresolved. [3] The employer disagrees that the Board should reconsider its decision. The employer argues that nothing that Mr. Rabaey has raised in his reconsideration request alters the fundamental basis of the Board’s decision to dismiss his complaint. The complaint was dismissed because it did not comply with the mandatory time limits in Regulation 378/07 under the Public Service of Ontario Act (PSOA), which is a matter going to the Board’s jurisdiction. [4] For the reasons set out below, the Board declines to exercise its discretion to reconsider its February 20, 2024 decision to dismiss the complaint. - 3 - [5] Although it has rarely been asked to do so, the Board has the discretion to reconsider its decisions. This authority is set out in the Board’s Rules, which include the following provision: 25. The Board may, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling. [6] Rule 25 came into effect on September 7, 2021, as part of an overall revision of the Board’s Rules and Practice Notes that were introduced on the same date. The predecessor to Rule 25 was Rule 23, which is identical to Rule 25. Rule 23 came into effect on February 1, 2013. There was no comparable Rule before that time. [7] There are only three decisions where the Board reviews its ability to reconsider a decision. The first of those decisions (Tyrrell v. Ontario (Ministry of Community Safety and Correctional Services), 2004 CanLII 55241 (ON PSGB)) predates the Board’s Rule 23, and the Board determined that it did not have the power to reconsider its decisions. The second decision (Lee v. Ontario (Ministry of Community Safety and Correctional Services), 2006 CanLII 17924 (ON PSGB)) also pre-dates Rule 23, and the Board decided that it was bound by Tyrrell. [8] The third decision (Baccega v Ontario (Solicitor General), 2020 CanLII 45593 (ON PSGB), came after Rule 23 was introduced, and it is the only decision to date in which the Board grapples with how it should exercise its authority to reconsider a decision. [9] In Baccega, the Board noted that although it had yet to exercise this authority, other administrative tribunals in Ontario had a long history of dealing with requests for reconsideration. The Board noted that the Ontario Labour Relations Board (the OLRB), in particular, had developed a robust jurisprudence in this area. The Board then reviewed and cited with approval several decisions of the OLRB, including Labourers’ International Union of North America, Ontario Provincial Council v. Superior Waste Recovery Inc., 2012 CanLII 69861 (ON LRB), and - 4 - William Hill Jr. v International Brotherhood of Teamsters, Chauffeur, Warehousemen and Helpers, Local 938, 1995 CanLII 10038 (ON LRB). [10] The essence of these two OLRB decisions (and others) has been distilled into the OLRB’s own Information Bulletin 19, which sets out the following “General Guidelines”: Pursuant to Section 114(1) of the Labour Relations Act, the Board may in its discretion reconsider any decision if it considers it advisable to do so. Generally, the Board will not reconsider its decision unless: a) Where the decision contains an obvious error; b) Where the request raises important policy issues which have not been adequately addressed; c) Where new evidence is sought to be presented which could not, with the exercise of due diligence, have been obtained and presented previously, and which could, if accepted, make a difference to the decision; and d) Where representations are sought to be made which the party seeking reconsideration had no previous opportunity to make (see for example: Audio Visual Services (Canada) Corporation, 2017 CanLII 85671 (ON LRB)) Because of the need for finality in labour relations matters, the Board does not treat its reconsideration power as either a tool for a party to repair the deficiency of its case nor as an opportunity to reargue it. (See John Entwistle Construction Limited, [1979] OLRB Rep. Nov. 1096.) If the requesting party relies on matters that could reasonably have been raised at the original hearing, the Board will normally not reconsider its decision. [11] The OLRB’s reconsideration decisions also frequently cite with approval the explanation offered by that Board’s then-Chair as to why the OLRB has chosen to limit the application of its reconsideration power: - 5 - The Board's reconsideration power is rarely successfully invoked. This is not due to any self-serving characterization that the Board's initial decisions are rarely incorrect (or that most reconsideration requests are frivolous) but because the hurdle to overcome before the Board will reconsider its decision is necessarily high. That is because there is a need in any litigation for finality to the decision- making process...The Board has frequently said that its reconsideration power is neither a tool for a party to repair the deficiency of its case initially or an opportunity to reargue it.1 [12] The OLRB has also explained in several reconsideration decisions that its strict approach in this area is mirrored by other labour relations tribunals across Canada.2 [13] In Baccega, this Board determined that the test for reconsideration, as set out in the OLRB Information Bulletin 19 and as applied and amplified in the OLRB’s reconsideration decisions, represents the appropriate test when applying Rule 23 (now Rule 25). The Board sees no reason to depart from that finding in this case. [14] Mr. Rabaey asks that the Board reconsider its decision to uphold the Employer’s preliminary objection and dismiss his complaint. The basis of his request is that the allegations that led the employer to conduct a workplace investigation and eventually impose the disciplinary suspension are inaccurate. He adds that he was not listened to during the investigation or during the disciplinary process. Mr. Rabaey goes on to explain why he believes that the process was unfair and expresses his frustration that his concerns have yet to be addressed and that from his perspective, the matter remains unresolved. [15] Having carefully reviewed these submissions, the Board finds that they do not raise any of the considerations that would lead the Board to exercise its discretion 1 C.J.A., Local 1256 v. C.J.A., [2011] O.L.R.B. Rep. 613 (Ont. L.R.B.) at pp. 614-615. 2 See for example: Ali v. USW, Local 5296 2016 CarswellOnt 1612, 270 C.L.R.B.R. (2d) 190; and LIUNA, Local 1059 v. UBCJA, Local 1946, 2019 CarswellOnt 6418, 40 C.L.R.B.R. (3d) 91 - 6 - to reconsider its decision. Moreover, the submissions have no bearing on the reason why the Board dismissed Ms. Rabaey’s complaint: he sent his notice of proposal to the deputy minister on May 12, 2023 but the 14-day time limit for sending it had already expired at the end of the day on May 10, 2023. [16] The Board has repeatedly stated two important principles when it considers a motion to dismiss a Complaint because the time limits in the Board’s statutory framework have not been followed: first, that time limits go to its jurisdiction to hear a complaint; and second, that the Board has no discretion to extend or abridge those time limits. 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. [17] For these reasons, the Board declines to reconsider its decision to dismiss Mr. Rabaey’s complaint. Dated at Toronto, Ontario this 12th day of April 2024. “Andrew Tremayne” Andrew Tremayne, Vice-Chair