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HomeMy WebLinkAboutP-2023-03349.Buckley.24-07-03 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-2023-03349 IN THE MATTER OF AN ARBITRATION Under THE PUBLIC SERVICE OF ONTARIO ACT Before THE PUBLIC SERVICE GRIEVANCE BOARD BETWEEN Buckley Complainant - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Brian Smeenk Vice Chair FOR THE COMPLAINANT Michael Buckley FOR THE EMPLOYER Jordanna Lewis Treasury Board Secretariat Legal Services Branch Counsel SUBMISSIONS Employer: May 24 and June 25, 2024 Complainant: none - 2 - DECISION [1] At the time of this application, the Complainant, Mr. Buckley, was a Sergeant employed by the Employer at the Toronto South Detention Centre. He complains of the following: a. A series of communications, interactions with his superiors, investigations and decisions by the Employer that he says took place between April 22, 2021 and September 28, 2023 (collectively here called “the Previous Incidents”). Mr. Buckley alleges that the Previous Incidents constitute a pattern of anti-Black racism, bullying and reprisals, resulting in an unsafe and hostile working environment, contrary to the Employer’s Respectful Workplace Policy, the Ontario Human Rights Code 1, the Employer’s Statement of Ethical Principles and its Correctional Services Code of Conduct; and b. An 8-hour disciplinary suspension without pay, of which he was notified on October 23, 2023 (“the Suspension”), which Mr. Buckley alleges is without just cause and also tainted by anti-Black racism. [2] By way of remedy, Mr. Buckley seeks removal of the Suspension, cease and desist orders regarding his differential treatment, an apology, transfer to another correctional facility, damages of $250,000 and other, unspecified “make whole” remedies. [3] The Employer’s position is that this Board does not have jurisdiction to consider the application. It also disputes the application on its merits. Regarding the jurisdictional objection, the Employer provides two bases for it. First, the Employer submits that the Board has no jurisdiction to consider the complaint about the Previous Incidents because the application is too late; it does not comply with the mandatory timelines set forth in Ontario Regulation 378/07 (the “Regulation”). Second, the Employer submits that the part of the application concerning the Suspension was filed prematurely, contrary to subsections 9(1) and (5) of the Regulation. Furthermore, the Employer alleges that the Board’s Registrar’s ex parte communications with Mr. Buckley (i.e., in the absence of the opposing party) regarding the processing of his application and the resulting re-filing of his application, breached the Regulation and the Employer’s right to natural justice and procedural fairness. It submits that the application regarding the Suspension must be dismissed on that basis as well. 1 R.S.O. 1990, c.H.19, as amended. - 3 - [4] At a Case Management Meeting with the Chair and the parties on April 18, 2024, it was agreed that Mr. Buckley had until June 7 to file any response to the Employer’s preliminary objections, which were to be filed by May 24. Mr. Buckley did not file a response. Nor has he, the Employer advises, otherwise communicated with Employer’s counsel. By reason of Mr. Buckley’s silence, the Employer has requested that the application “be dismissed with prejudice as abandoned.” [5] This decision deals with the Employer’s positions regarding the question of abandonment and the jurisdictional issues. For the reasons that follow, I find that the application has not been abandoned at this point. I further find that the parts of the application concerning the Previous Incidents are untimely. The Board therefore does not have jurisdiction to determine or provide a remedy regarding them. However, the part of the application concerning the Suspension is properly before the Board. It has jurisdiction to consider the merits of that portion of the application. BACKGROUND [6] The relevant facts for the purpose of these preliminary issues are not in dispute. [7] As noted above, the application alleges that the Previous Incidents that occurred between April 22, 2021 and September 28, 2023 constituted anti-Black racism, bullying and reprisals, and resulted in a hostile and unsafe working environment. [8] On November 3, 2023, Mr. Buckley’s Notice of Proposal to file a complaint (“NOP”) was filed with Employer. [9] On November 29, 2023, a dispute resolution meeting between Mr. Buckley and the Employer took place. [10] On December 12, 2023, Mr. Buckley filed with the Board a Form 1 Complaint Application form dated November 29, 2023, with attachments (“First Form 1”). He did not include his NOP. [11] On December 14, 2023, the Board’s Registrar sent an email to Mr. Buckley acknowledging receipt of the First Form 1 application and advising that, “It is important that you ensure that your application is filed in a timely manner and is neither filed too early nor too late”. The Registrar also provided Mr. Buckley with information about the proper timing of applications, from the Board’s “Frequently Asked Questions” or “FAQs” that are posted on its website. The Registrar then stated: - 4 - Once you have reviewed the Regulation and the Frequently Asked Questions, please advise whether, [a] you wish to proceed with your application as filed on December 12, 2023; or [b] you wish to withdraw your application at this time and file a fresh application at a later date. If you choose the second option, in addition to your confirmation of withdrawal, we will require a fresh filing in an appropriate manner on the date of your choosing. [12] On January 1, 2024, Mr. Buckley filed another Form 1 application about the same allegations (“the Second Form 1”). He once again failed to include his NOP. [13] On January 1, 2024, the Registrar sent a reply to Mr. Buckley by email, acknowledging his Second Form 1 and requesting the underlying NOP. More specifically, she wrote: In reviewing your application, I note that the Notice of Proposal letter is missing from the application record, see page 2 of the application. It is therefore difficult to determine the timelines for filing. Please review our FAQ’s at Public Service Grievance Board - Frequently Asked Questions (gov.on.ca), you may wish to review our Rules and Practice Notes at Public Service Grievance Board - Rules and Practice Notes (gov.on.ca). In addition refer to Ontario Regulation 378/07, s. 9 (5 to 10). At this juncture your application is on hold, I will require communication from you in respect to your Notice of Proposal. [14] On January 2, 2024, Mr. Buckley sent an email thanking the Registrar but still not providing his NOP. [15] On March 12, 2024, Mr. Buckley emailed the Registrar with confirmation that the underlying NOP for his application is that dated November 3, 2023 as acknowledged by the Employer on the same date. He provided both the NOP and the Employer’s acknowledgement. [16] On March 19, 2024, the Registrar sent letters to Mr. Buckley and the Employer, acknowledging receipt of the application as of January 2, 2024 and providing the Employer with a copy of the Second Form 1. The acknowledgement letter states in part as follows: This is to acknowledge receipt of the Form 1 application dated 1/ 01/ 2024 and received by the Board on 1/02/ 2024 in the above-noted matter. - 5 - HAS THE APPLICATION BEEN ABANDONED? [17] It is premature to find that Mr. Buckley has abandoned this application. At this point, his silence is not the same as abandonment. [18] Following the Case Management Meeting, the Board sent a Direction to the parties that reflected the procedural agreements of the parties. It provided that the Employer was to file its response to the application by May 24. If that response included a preliminary objection regarding the Board’s jurisdiction, it stated: “Mr. Buckley will file his response to the Employer’s preliminary objections/submission by June 7, 2024.” The Employer was then given time to reply. The Direction then states, “The Board shall rule on any such preliminary objections based on the parties’ written submissions and will endeavour to promptly issue a ruling sufficiently before the hearing dates set forth below.” The Direction then confirmed the schedule for production of documents beginning on July 5 and subsequent hearing dates. [19] Nothing in the Direction requires that Mr. Buckley file a reply to the Employer’s preliminary objection submissions. Nor did he undertake to do so. Rather, he was given an opportunity to do so, with a deadline. He did not avail himself of that opportunity. That is a choice he made at his peril, but one he was entitled to make. Conversely, the Employer has not pointed to any prejudice to it arising from Mr. Buckley’s choice. [20] After counsel for the Employer filed her submission regarding abandonment, the Board issued a further Direction that stated in part: Having regard for the concerns raised by counsel for the Employer, the parties are advised that, in the absence of any further submissions by Mr. Buckley by 5:00 p.m. on June 28, 2024, the Chair will rule on the Employer’s preliminary objections based on the materials filed and before the Board to that date. [21] The latter Direction is consistent with that issued following the Case Management Meeting, to the effect that the Board would rule on the Employer’s preliminary objections based on the parties’ written submissions. Mr. Buckley still has not filed any such submissions but he has not indicated that he is abandoning his application. This is not the same as failing to appear at a hearing or failing to take other mandatory steps. In the absence of an express abandonment of the application, the Board is compelled to proceed to decide the preliminary issues based on the written submissions before it. - 6 - UNTIMELINESS OF ALLEGATIONS ABOUT THE PREVIOUS INCIDENTS [22] The Employer submits that, while the Previous Incidents may be applicable context and background for a timely complaint, those events are not properly before the Board for the purpose of any type of remedy because they are untimely. The Employer relies on the timing requirements of Sections 4, 8 and 9 of the Regulation. They, together with section 10, provide, in material part, as follows: Complaint about a working condition or a term of employment 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, … (b) if the public servant gives notice in accordance with section 8 of his or her proposal to file the complaint: … 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. 3. 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. … Period for dispute resolution 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. … (3) If the complainant was required to give a deputy minister notice of the proposal to make the complaint, and if the deputy minister or his or her delegate meets with the complainant within 30 days after the deputy minister receives the notice, the period provided for dispute resolution expires on the earlier of, (a) the day that is 30 days after the meeting; or (b) the day on which the deputy minister gives written notice to the - 7 - complainant of his or her decision about the proposed complaint. … (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. Filing a Complaint 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. [emphasis added] [23] The Employer submits that the timelines set out in the Regulation are mandatory and the Board does not have jurisdiction to extend them. It relies in particular on Section 8(4)(3) of the Regulation regarding the 14 day time limit for a complainant to notify their Deputy Minister of a working condition or term of employment that has been violated. The Employer relies on the following passage from a prior Board decision: In every instance, the Board has found that the timelines for filing a complaint, including giving notice to the relevant Deputy Minister, are mandatory and that the Board has no jurisdiction to relieve against the strict requirements for filing a complaint.2 [24] I agree with these submissions of the Employer. The 14-day time limit for the filing of an NOP about a working condition or discipline (“the Complaint Window”) operates from the date when Mr. Buckley became aware of the working condition, term of employment or discipline about which he seeks to complain. This time limit is mandatory. The Board has often noted that it lacks jurisdiction to extend it. There is no reason, on the face of the application, to think that Mr. Buckley was unaware of any of the Previous Incidents when or soon after they happened. He does not allege that he was unaware of them during the normal Complaint Window. The Board therefore lacks jurisdiction to consider his late-filed complaint 2 Taylor v. The Crown in Right of Ontario (MCSCS), PSGB #2016-2281 at para. 11. - 8 - about the Previous Incidents for the purpose of potentially providing remedies for any violation of his rights arising from them. [25] As conceded by the Employer, however, it is possible that evidence about the Previous Incidents may be admissible if relevant as context and background for a timely complaint.3 [26] I turn next, therefore, to consideration of the Employer’s objections to the Board’s jurisdiction to hear the complaint about the Suspension, including whether that element of the application is timely. JURISDICTION REGARDING COMPLAINT ABOUT SUSPENSION [27] As noted above, the Employer submits that the part of the application concerning the Suspension was filed prematurely. Furthermore, the Employer alleges that the Board’s Registrar’s ex parte communications with Mr. Buckley regarding the processing of his application breached the Regulation and the Employer’s right to natural justice and procedural fairness and the application must be dismissed on that basis as well. [28] The Employer stated its argument as follows: i. The Board’s Rules do not permit refiling of the same materials on several occasions. ii. The Board does not have the jurisdiction to treat a filing as having taken place on a different date. A filing is a filing. iii. The January 1, 2024 filing is irremediably tainted by the Board’s ex parte communication with the Complainant wherein the Registrar provided legal advice. There are repeated breaches of the regulation and of the Employer’s right to natural justice and procedural fairness. iv. There is no remedy for the Board ex parte legal advice, that would allow it to seize jurisdiction over the complaint. v. While the PSGB is without jurisdiction, the Complainant is free to file an application and seek a remedy in another legal forum . [29] The Employer recognizes that the instant matter engages “the exact same preliminary argument” and “the exact same issue” as those put before the Board by the same Employer in another recent case: Gilkes v. Crown in Right of Ontario (Solicitor General).4 That case involved a very similar factual situation. 3 See Crawford v. Crown in Right of Ontario (Solicitor General), PSGB #P-2023-01424 (March 18, 2024), at para. 42. 4 2024 CanLII 52260 (ON PSGB) - 9 - [30] As a decision in the Gilkes matter had not been issued when the Employer filed its response in this case, it asked for and was granted the opportunity to make further submissions after the decision was issued. The Employer chose, however, not to make any further submissions. Nor did Mr. Buckley. a. The Legal Framework [31] As the Gilkes case is on all fours with the present one, it is useful to summarize the applicable legal principles as set forth in that decision of Vice Chair Kuttner: a. The timelines for filing a complaint are mandatory, the Board having no jurisdiction to entertain a complaint on the merits where they are not complied with by a complainant: see para. 44. b. This applies to complaints that are filed too early, before the close of the dispute resolution period stipulated in the Regulation: see para. 45. c. An application that is filed without the required NOP does not constitute a properly filed application, because subsection 10(2) of the Regulation requires the NOP to be included with the application: see para. 47-48. d. An applicant may withdraw a premature application, even by way of a phone call with the Registrar, where no fresh steps have been taken in connection with it: see para. 51 and 56. e. The same application may be re-filed at a later date. If it is re-filed in accordance with the Regulation’s timelines, the Board has jurisdiction to consider it: see para. 55-56. f. Communications between the Board’s administrative staff and a complainant before the merits of a matter are considered by a decision-maker (the Chair or a Vice-Chair of the Board) do not raise a reasonable apprehension of bias on the part of the actual decision-maker and do not nullify an application: see para. 58. g. There are, however, limits to what may be discussed ex parte between the Board’s administrative staff and one of the parties. Vice-Chair Kuttner quoted from the Ontario Superior Court decision in Trillium v. Cassels Brock & Blackwell et al,5 in which the following principles were laid out: (11) …One must differentiate between legal information and legal advice. Legal information consists of providing answers 5 2013 ONSC 1789, at para. 11-12 - 10 - regarding the law generally, the options available, and the relevant legal procedures that might pertain. (12) Legal 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. It depends on the individual circumstances of the recipient 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… In short, legal advice is particularized advice that is directed to the client’s legal rights and duties and in essence says, “here is what I think you should do” as opposed to “here is some information about…the.. process.” [32] In the result, in Gilkes the Board determined that the first application could be and had been withdrawn. The re-filed application was not premature and was filed in a timely manner, in accordance with the Regulation. The Board also held that the Registrar’s prior communications with the complainant did not constitute improper legal advice, but rather permissible legal information. Such communications therefore did not undermine the Board’s jurisdiction to hear the merits of the application. b. Is the Application Premature? [33] On the facts of this case, I have no hesitation in finding that the application was ultimately filed in accordance with the Regulation’s timelines and was not filed prematurely. [34] On December 12, 2023, Mr. Buckley sent the Board his First Form 1 application. He did not include his NOP. Section 10(2) of the Regulation requires that the NOP must be included with the complaint/application (the Form 1 itself also advises applicants of this requirement). A Form 1 without an appended NOP is therefore not a complete application. As was found in Gilkes at para. 45, submitting a Form 1 without the NOP does not meet the definition of “filing” in the definitional section of the Board’s Rules, as it was not an “effective delivery of documents to the Registrar of the Board.” (emphasis added) [35] Having been informed by the Registrar of the applicable timelines in the Regulation, as explained in the Board’s FAQs, Mr. Buckley then sent the Registrar his Second Form 1 on January 1, 2024. It can be readily inferred that Mr. Buckley sought to file his application at this time, in lieu of the First Form 1, knowing that the First Form 1 had not been effectively filed in a timely manner. As he submitted - 11 - it on New Years Day, it is deemed to have been submitted on the next business day, January 2, 2024. [36] The application was still not, however, effectively filed at that time because it was still not accompanied by the NOP. That was not submitted by Mr. Buckley until March 12, thus completing his application. He did not file a third Form 1 at that time, but simply completed his Second Form 1 application. The Board’s Rule 8 allows for the amendment of complaints and replies. It states: The Complainant may amend the complaint and the Employer may amend the Response with the leave of the Board. [37] The application was thus filed effective January 2, 2024 and amended, completed or perfected on March 12. [38] Regarding its timeliness, as the Employer submits, in the circumstances of this case Mr. Buckley could not file his application until the expiry of the dispute resolution period. As stated in section 9(3) of the Regulation, the dispute resolution period ran for 30 days from the meeting of November 29, 2023 (since the Employer did not provide a decision following the meeting). Since Mr. Buckley’s Second Form 1 application was filed effective January 2 (as later amended and perfected), his application was filed after the exhaustion of the dispute resolution period. The Employer had the full benefit of that period. The application was not premature. [39] This aspect of the Employer’s preliminary objection is therefore dismissed. I find that Mr. Buckley’s application with respect to the Suspension was filed in a timely manner. The Board’s jurisdiction is not ousted on the basis that the application was premature. c. The Effect of the Registrar’s Communications with Applicant [40] As explained by the Board in Gilkes, there is nothing inherently wrong in a tribunal’s administrative staff communicating with an applicant (or for that matter a responding party) in the absence of the opposing party, before a matter is taken up by a decision-maker. In my view this is a normal, everyday occurrence with administrative tribunals, especially those that deal often with parties who are not represented by lawyers. It can be very beneficial to the parties’ understanding of the quasi-judicial process and its smooth operation. It also enhances access to justice for unrepresented parties like Mr. Buckley. - 12 - [41] As also explained in Gilkes, however, there are limits to what may be discussed by administrative staff with one party in the absence of the other parties. In short, staff may provide legal and procedural information and explain rules and options. They may not provide legal advice recommending what a party should do in their particular circumstances. The issue, therefore (as it was in Gilkes) is whether the Registrar’s communications provided permissible legal information or crossed the line and provided impermissible legal advice to Mr. Buckley. [42] It is clear that the Registrar provided only information and did not provide impermissible legal advice to Mr. Buckley. [43] In her December 14 email to Mr. Buckley, the Registrar said, “It is important that you ensure that your application is filed in a timely manner and is neither filed too early nor too late”. The Registrar also provided Mr. Buckley with information about the proper timing of applications from the Board’s “Frequently Asked Questions”. This was simply information. She then asked whether he wished to proceed with the application as filed. She then stated, “Once you have reviewed the Regulation and the Frequently Asked Questions, please advise… “ I can see nothing objectionable in this communication. [44] After Mr. Buckley filed his Second Form 1 application, the Registrar responded noting the absence of the required NOP. She again referred him to information about the Regulation, the Board’s Rules and FAQs. She advised that the application was “on hold” pending his providing information about his NOP. Again, I can see nothing objectionable in this communication. It was purely informational. It did not constitute legal advice. [45] The Registrar’s next communication to Mr. Buckley, on March 18 and 19, informed him that his application was being processed, his having perfected his application with the filing of the NOP on March 12. Again, these communications do not constitute impermissible legal advice from the Registrar to Mr. Buckley. [46] In the result, I reject the Employer’s argument that Mr. Buckley’s Second Form 1 application was “irremediably tainted by the Board’s ex parte communications with the Complainant wherein the Registrar provided legal advice.” I also reject its submission that there were “repeated breaches of the regulation”. The Employer’s right to natural justice and procedural fairness was not violated. The Employer had and continues to have the unfettered right and ability to defend the application and receive a fair and impartial hearing on the merits of the remaining issue. - 13 - DISPOSITION [47] For all of these reasons, the Employer’s preliminary objection regarding the Board’s jurisdiction to decide on the Previous Incidents is upheld. The Board lacks jurisdiction to consider the late-filed complaint about the Previous Incidents for the purpose of potentially providing remedies. [48] As conceded by the Employer, however, it is possible that evidence about the Previous Incidents may be admissible if relevant as context and background for a complaint that is timely. [49] The Employer’s preliminary objections regarding the Board’s jurisdiction to hear the merits of the application regarding the Suspension are dismissed. That part of the application is timely. [50] Having regard for the date of this decision, the previously established date for the Employer to provide disclosure of arguably relevant documents to Mr. Buckley regarding the Suspension is hereby extended from July 5 to July 10. The other dates for disclosure of relevant documents by Mr. Buckley and the hearings on the merits, as previously agreed by the parties and confirmed in the Board’s Directions, remain in place. [51] In addition, having regard for his silence since the Case Management Meeting, Mr. Buckley is directed to confirm in writing by July 12, 2024 whether or not he intends to proceed with his application regarding the remaining Suspension issue and thus appear at the hearing scheduled for July 17, 2024. Should he fail to so confirm his intention to proceed, the Employer may renew its request that the application be dismissed as abandoned. Dated at Toronto, Ontario this 3rd day of July, 2024. “Brian Smeenk” Brian Smeenk K.C., Chair