Roberts v. Union of Canadian Correctional Officers

Roberts v. Union of Canadian Correctional Officers Court (s) Database Federal Court of Appeal Decisions Date 2014-02-13 Neutral citation 2014 FCA 42 File numbers A-188-13 Decision Content Date: 20140213 Docket: A-188-13 Citation: 2014 FCA 42 CORAM: DAWSON J.A. GAUTHIER J.A. NEAR J.A. BETWEEN: KENNY ROBERTS Applicant and UNION OF CANADIAN CORRECTIONAL OFFICERS Respondent Heard at Ottawa, Ontario, on February 11, 2014. Judgment delivered at Ottawa, Ontario, on February 13, 2014. REASONS FOR JUDGMENT BY: DAWSON J.A. CONCURRED IN BY: GAUTHIER J.A. NEAR J.A. Date: 20140213 Docket: A-188-13 Citation: 2014 FCA 42 CORAM: DAWSON J.A. GAUTHIER J.A. NEAR J.A. BETWEEN: KENNY ROBERTS Applicant and UNION OF CANADIAN CORRECTIONAL OFFICERS Respondent REASONS FOR JUDGMENT DAWSON J.A. [1] This is an application for judicial review of a decision of the Public Service Labour Relations Board rendered on August 31, 2010 (2010 PSLRB 96). In its decision the Board dismissed part of a complaint made by the applicant under paragraph 190(1)(g) of the Public Service Labour Relations Act, S.C. 2003, c. 22, s. 2 (Act) alleging that the respondent Union breached its duty of fair representation. [2] The applicant alleged that the Union breached its duty of fair representation in four respects all relating to a grievance brought by the applicant following the termination of his employment: i) The Union did not arrange for the applicant to be represented by a lawyer, and did not advise the applicant that he could retain counsel privately. ii) The Union representative who later appeared on the applicant’s behalf at the grievance hearing failed to adequately prepare for the hearing. iii) The Union representative failed to represent the applicant adequately at the hearing. iv) The Union failed to seek judicial review of the negative decision rendered following the conclusion of the hearing. [3] The Board dismissed the first three allegations on the ground that the applicant’s complaint was not filed within the time mandated by subsection 190(2) of the Act. The Board found the final allegation was made on a timely basis, however the applicant had failed to address this issue in his evidence and submissions at the hearing. As a result, the Board reserved its decision on the final allegation so that the parties could file further written submissions on this issue. The decision to dismiss the first three allegations is the decision under review in this application. [4] Ultimately, on December 10, 2010, the Board dismissed the final allegation (2010 PSLRB 129). This decision is the subject of another application for judicial review brought by the applicant in Court File number A-175-13, which was heard at the same time as the present application. The reasons disposing of the application for judicial review in Court File A-175-43 are cited as 2014 FCA 41. [5] Subsection 18.1(2) of the Federal Courts Act, R.S.C. 1985, c. F-7 read with subsection 28(2), provides that an application for judicial review of a federal board’s decision must be brought within 30 days of the communication of the decision by the Board to the parties, or within any further time a judge of this Court may fix. [6] The notice of application for judicial review of the Board’s August 31, 2010 decision was filed on or about January 14, 2011. As a result, the applicant sought an extension of time for the issuance and filing of the notice of application in his notice of application. [7] The jurisprudence establishes that to obtain such an extension of time an applicant should generally demonstrate: A continuing intention to pursue the application. The application discloses an arguable case. No prejudice would result to the respondent if the extension is granted. There is a reasonable explanation for the delay. (See, for example, Baksa v. Neis (c.o.b. Brookside Transport), 2002 FCA 230, [2002] F.C.J. No. 832). [8] In the present case, the applicant provided no evidence explaining the delay and no evidence as to his continuing intention to pursue the application. In the absence of such evidence there is no basis on which the requested extension may be granted. Moreover, having read the applicant’s written submissions and heard the oral arguments, I am satisfied that the application does not disclose an arguable case. [9] The Board decided that the first three allegations were not brought within the required time frame because subsection 190(2) of the Act requires that a complaint alleging breach of the duty of fair representation is made “not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known” of the acts giving rise to the complaint. The Board found that it had no jurisdiction to expand that time limit and that the applicant had sufficient knowledge of the facts giving rise to the first three allegations by September 2006. It followed that the applicant’s May 31, 2007 complaint was untimely. [10] The Board’s interpretation of subsection 190(2) of the Act, its findings of fact and its application of the facts to the limitation period contained in subsection 190(2) are all owed deference by this Court (Boshra v. Canadian Association of Professional Employees, 2011 FCA 98, 415 N.R. 77, at paragraph 44). [11] The applicant has failed to establish even an arguable case that the Board’s decision was unreasonable. No principle of law or equity trumps Parliament’s intent that complaints about an alleged breach of the duty of fair representation must be brought within 90 days of learning of the facts that give rise to the complaint. The applicant can not credibly dispute the factual determination that he possessed the requisite knowledge to complain by September of 2006. [12] Given the applicant’s failure to explain his delay in commencing this application, his failure to demonstrate a continuing intention to pursue the application and his failure to demonstrate an arguable case, I am satisfied that the interests of justice do not require that an extension of time be given. [13] It follows that I would dismiss the application for judicial review with costs. “Eleanor R. Dawson” J.A. “I agree. Johanne Gauthier J.A.” “I agree. D.G. Near J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-188-13 STYLE OF CAUSE: KENNY ROBERTS v. UNION OF CANADIAN CORRECTIONAL OFFICERS PLACE OF HEARING: Ottawa, Ontario DATE OF HEARING: February 11, 2014 REASONS FOR JUDGMENT BY: DAWSON J.A. CONCURRED IN BY: GAUTHIER J.A. NEAR J.A. DATED: FEBRUARY 13, 2014 APPEARANCES: John H. Farant For The Applicant Giovanni Mancini For The Respondent SOLICITORS OF RECORD: Barrister & Solicitor Kingston, Ontario For The Applicant Laplante & Associés Montreal, Quebec For The Respondent