Upon receipt of a complaint the Public Service Grievance Board (the Board) may on its own volition or on the request of a party screen a complaint for jurisdiction before listing the complaint for hearing. The Board may dismiss the complaint without a hearing or consultation when it appears on the face of the complaint that the Board is without jurisdiction to hear the complaint because the complainant is not a public servant under the jurisdiction of a Deputy Minister (see Rampersad and WCB, 1993 CanLII3345; Pelissero and GO Transit, P006/87; Wells/Larson and the LCBO, 1995CanLII4584); or the Board is without jurisdiction to grant a remedy (see Laird et al, P0144/95; Blakney et al, Armstrong et al, 2000CanLII20364; and Easto et al, 2000CanLII20365), even if all the facts stated in the complaint are assumed to be true.
However, when the Board deems it necessary, the Board may request and set a date for receipt of further particulars, information or submissions regarding the complaint.
The Board may direct the parties to participate in a case management meeting by telephone or video conference. This meeting will normally be arranged in consultation with the parties, promptly after the appointment of the member of the Board assigned the complaint, and in any event before the first mediation, med-arb or arbitration date is scheduled.
Such a case management meeting does not preclude a pre-hearing conference pursuant to Section 10 of the Board's Rules being scheduled at a later date.
In order to make better use of public resources, the Board provides to the parties an opportunity to mediate their differences prior to a formal hearing of the matter. The Board's mediation process is designed to assist the parties in reaching a settlement without the expense and delay arising from a full adjudicative hearing.
Where the Board schedules a mediation after receiving a Complaint, in order to facilitate that mediation the Board may request the parties to deliver to the Board and to the other parties, prior to the mediation:
When documents are filed with the Board, they are shared with the other party to the complaint in the normal course. Parties who wish to present documents as part of the evidence to support their case should bring copies to the hearing for the Board and the opposing party.
In order to be admitted into evidence, the document must be relevant to the issues the Board is deciding. If the other party objects to the presentation of a document as irrelevant or as disclosing information that should be kept confidential, the Board will decide whether the information should be entered into evidence after hearing submissions from the parties.
Whether confidential or not, information and documents presented in evidence must not be used by the parties or their representatives for any purposes other than the resolution of the complaint before the Board. This is sometimes referred to as the implied undertaking rule.
Any party to a proceeding who wishes to protect the confidentiality or privacy of any information or document that they wish to file with the Board, or evidence that they wish to produce at a hearing, is encouraged to first discuss the matter with the opposing party to see if agreement can be reached on a manner of presenting the material in question which protects the information in question. Possibilities include redacting [removing or obscuring] personal information, limiting which individuals may have access to medical or other sensitive information, or agreeing on appropriate undertakings as to confidentiality or presenting the facts to the Board by agreement of the parties instead of filing the documents. Failing agreement, a request may be made to the Board, in writing to the Registrar, at 180 Dundas Street West, Suite 600, Toronto, Ontario, M5G 1Z8, or Email: psgb.psgb@ontario.ca, as far in advance of the hearing as possible, for directions as to how the information should be handled. The Board will also deal with requests that arise in the course of a hearing as necessary, and may raise issues of privacy or confidentiality of its own motion in appropriate circumstances.
Confidentiality orders may also be sought by persons who are not parties to a complaint before the Board who would be affected by the disclosure of information to the Board, by writing to the Registrar at the above address.
Once a final decision is rendered, the decision is public and normally available on the internet on the CanLII website, https://www.canlii.org/en/on/onpsgb/ . Requests for protection or non-disclosure of information in a decision should therefore be made to the member hearing the case prior to the close of the hearing.
Interested individuals or media representatives who are not parties to a complaint may request access to documents filed with the Board, such as written submissions and documents that have been admitted into evidence.
On receipt of such requests, the Board's practice is to consult the parties to the case involved, and to consider any submissions they may make as to privacy/confidentiality concerns, together with the non-party request, prior to deciding whether to grant access to those documents. In dealing with past requests for access, consideration has been given to s. 9 of the Statutory Powers Procedures Act which deals with the openness of hearings and access to documents submitted in written hearings, balanced by the power of statutory tribunals such as the Board to limit that openness in specific circumstances, as well as the Freedom of Information and Protection of Privacy Act, as appropriate.
Any person who seeks access to records in the custody of the Board should address a request in writing to the Registrar, 180 Dundas Street West, Suite 600, Toronto, Ontario, M5G 1Z8, or Email: psgb.psgb@ontario.ca, specifying the nature of the record sought and identifying the case to which it relates. The Board will then consult the parties, as noted above, and decide whether the request should be granted, and if so, in whole or in part.
Please note that the Board is not one of the tribunals to whom the Tribunal Adjudicative Records Act, 2019, which came into force on July 1, 2019, applies.
The Statutory Powers Procedures Act is available on-line here: https://www.ontario.ca/laws/statute/90s22?search=statutory+power+procedures+act
The Freedom of Information and Protection of Privacy Act is available on-line here: https://www.ontario.ca/laws/statute/90f31?search=Freedom+of+information
The Tribunal Adjudicative Records Act, 2019 is available here:https://www.ontario.ca/laws/statute/19t07.
The Regulation providing a list of tribunals to which it applies is available here: https://www.ontario.ca/laws/regulation/r19211.
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.
2. The Board has stated in past decisions that, in exercising this power, it will generally follow a restrictive approach like that followed by other employment and labour law tribunals. A primary reason for this is because of the need for finality and promptness in the resolution of employment disputes. See Baccega v Ontario (Solicitor General), 2020 CanLII 45593 (ON PSGB) and Rabaey v Ontario (Children, Community and Social Services), 2024 CanLII 40069 (ON PSGB).
3. As these decisions confirmed, the Board will generally not reconsider a decision unless:
a. the decision contains an obvious error;
b. the request to reconsider raises important policy issues which have not been adequately addressed;
c. new evidence is sought to be presented which could not previously have been obtained and presented with the exercise of due diligence and which could, if accepted, make a difference to the decision; or
d. representations are sought to be made which the requesting party had no previous opportunity to make.
4. Due to the need for finality in employee relations matters, the Board's reconsideration power is not to be used as either a tool for a party to repair the deficiency of its case nor as an opportunity to reargue it. If the requesting party relies on evidence or arguments that could have been, or were, raised at the original hearing, the Board will normally not reconsider its decision.
5. A request for reconsideration shall be initiated in writing to the Registrar, together with confirmation that a copy of the request has been delivered to the other interested party or parties. The Board shall advise the other party or parties whether any written response is required and, if so, the date by which it must be delivered.
This Bulletin addresses procedures to be followed by the Board’s Office of the Registrar when in receipt of an application that appears to be filed prematurely.
BACKGROUNDSection 10(1) of Regulation 378/07 provides that an application may be filed, “within 14 days after the expiry of the period, if any, provided for dispute resolution under section 9.” A key purpose of this section appears to be to ensure that parties have the benefit of the full dispute resolution period before an application is brought before the Board. It sometimes results, however, in applications being dismissed without a hearing despite the parties having had the full opportunity to deploy the dispute resolution process.
The timing requirements in the Regulation are mandatory and jurisdictional in nature, so the Board has been compelled to dismiss many cases that were filed too early. A good example of where the Regulation was applied correctly, but with harsh results, is Hamilton v Ontario (Community Safety and Correctional Services), 2019 CanLII 42439 (ON PSGB). At para. 5 – 11, the decision outlined the time limits and the complicated way in which they work. The Board was compelled to dismiss the application because it was filed too early. That was based on determining what meeting was the relevant dispute resolution meeting, which was not a simple task.
It is part of the duty of the Board to seek to ensure that eligible employees in the Ontario Public Service understand its rules and procedures and how they can enforce their rights. Innocent, technical irregularities that might defeat a meritorious complaint ought to be avoided if it is possible and appropriate to do so.
It is therefore appropriate for the Registrar to bring it to the attention of a Complainant when it appears that their application may be premature, to ensure that they are fully aware of the applicable provisions of the Regulation. This may also help to ensure that the full dispute resolution period is used as intended. Such a Complainant may be given appropriate information and invited to reconsider when they should file their application. Potential applicants should be directed to the Board’s Frequently Asked Questions.
There are limits, however, regarding what kinds of assistance the Board’s administrative staff may properly provide to a party appearing before it. The Board recently explained these limits in Gilkes v. Ministry of Solicitor General, P-2023-0164, May 23, 2024. The Board explained that, while it is permissible for administrative staff to provide legal information, they must not go so far as to provide legal advice in individual cases.
The Board has therefore established the following procedural guidelines for the Registrar and her staff to follow when in receipt of an application that appears to be premature:
PROCEDURAL GUIDELINES
Thank you for submitting your PSGB Form 1 application dated XXXX, which was received by this office on XXXX
It appears that your application may have been submitted to the Board prematurely. [NOTE: if it is unclear whether the application is timely, the following wording may be more appropriate: You should ensure that your application has not been submitted to the Board prematurely].
The Board cannot provide you with legal advice about your application. Helpful information is, however, available on the Board’s website. Please review our Frequently Asked Questions (“FAQ’s”) at Public Service Grievance Board - Frequently Asked Questions and review our Rules and Practice Notes at Public Service Grievance Board - Rules and Practice Notes. I draw your attention in particular to FAQ #11 and #12 which state as follows:
11. What steps must be taken before a Complaint can be properly filed with the PSGB?
1. Give your Notice of Proposal to the designated person as described in Q. 8 above, within the time frame described in Q.9 above (as detailed in section 8 of the Regulation).*
2. Wait until the end of the dispute resolution period as described in section 9 of the Regulation. Note that under section 9, the length of the dispute resolution period varies depending on:
1. whether the person to whom you gave notice, or their delegate, meets with you during the 30 days after your notice is given, and
2. whether or not you receive a written decision about your Complaint
Read Sections 8, 9 and 10 of the Regulation carefully. Be very careful to calculate the precise dispute resolution period in your case, based on what has happened in response to your notice of proposal. This is YOUR responsibility. You should NOT rely on the Employer to protect your rights in this regard.
3. File your Complaint with the Board WITHIN 14 DAYS AFTER the expiry of your dispute resolution period.
* Note: these time frames and process are not applicable to reprisal Complaints regarding political activity under sections 103 and 104 of the Act or regarding disclosure of wrongdoing under sections 139 and 140 of the Act;
For examples of Board decisions discussing these requirements, see St. Amant vs. Ontario (Ministry of Community Safety and Correctional Services) 2013 CanLII 4673; and Telford vs. Ontario (Finance) 2016 CanLII 36364; Beach vs. Ontario (Solicitor General) 2020 CanLII 74281; Dixon vs. Ontario (2020) CanLII 74279; and Preston vs. Ontario (Education) 2021 CanLII 71622.
12. I gave my Notice of Proposal to file a Complaint to my Deputy Minister but I never had my meeting, so what do I do?
If no meeting takes place with your deputy minister or their designate, the dispute resolution period expires 30 days after you gave your Notice of Proposal to the deputy. You must file your Complaint with the Board within 14 days after that expiry date. See Sections 9(5) and 10 of the Regulation.
Please review the FAQs and the Regulation carefully to ensure that your application is filed in accordance with its timing requirements.
If you then decide to re-file your application at a later date, you must confirm that in writing to this office.
3. If a Complainant indicates that they wish to re-file their application at a later date, the Registrar’s office shall ensure that this intent is confirmed in writing, either by the Complainant or the Registrar.
4. When a potential Complainant contacts a person in the Registrar’s office directly, whether in writing or by telephone, staff may provide further information but must avoid providing legal advice. Staff should keep in mind the following principles from the Supreme Court of Ontario decision in Trillium v. Cassels Brock and Blackwell, 2013 ONSC 1789:
a. Information may be provided as to the law generally, including the Regulation and the Board’s Rules.
b. Such legal information may include explanations of options available and the relevant procedures.
c. Advice must not be given about a party’s legal rights and duties with an indication that such advice should be followed.
d. Explanations as to how the law would apply in a particular case must not be provided.
e. Advice must not be provided as to a party’s future conduct or what decision a party should make in a particular case.