Date:
20250414
File:
561-02-50766
KENTH COUND
Complainant
and
PROFESSIONAL INSTITUTE OF THE PUBLIC
SERVICE OF CANADA
Respondent
Indexed
as
Cound v. Professional
Institute of the Public Service of Canada
In the matter of a complaint made under
section 190 of the Federal Public Sector
Labour Relations Act
Before: Joanne
Archibald, a panel of the Federal Public Sector Labour Relations and Employment
Board
For the Complainant: Himself
For the Respondent: Tony Micallef-Jones, counsel
Decided
on the basis of written submissions,
filed
September 30, November 6, 15, and 29, and December 19, 2024, and January 7,
2025.
Reasons for Decision REASONS FOR
DECISION Page:
1 of 9
I. Complaint before the Board
[1]
On October 1, 2024, Kenth Cound (“the
complainant”) made a complaint under s. 190(1)(g) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2;
“the Act”) against the Professional
Institute of the Public Service of Canada (“PIPSC” or “the respondent”),
alleging that it breached its duty of fair representation.
[2]
Section 190(1)(g) of the Act requires the Federal Public Sector Labour Relations and
Employment Board (“the Board”) to examine and inquire into a complaint that an
employee organization committed an unfair labour practice. The nature of the
alleged unfair labour practice in this complaint is set out in s. 187 of the Act as follows:
|
187 No employee organization that is certified
as the bargaining agent for a bargaining unit, and none of its officers and
representatives, shall act in a manner that is arbitrary or discriminatory or
that is in bad faith in the representation of any employee in the bargaining
unit.
|
187
Il est interdit Ã
l’organisation syndicale, ainsi qu’à ses dirigeants et représentants, d’agir
de manière arbitraire ou discriminatoire ou de mauvaise foi en matière de
représentation de tout fonctionnaire qui fait partie de l’unité dont elle est
l’agent négociateur.
|
[3]
The respondent responded to the complaint to
request that it be dismissed without a hearing on the basis that it has no
reasonable prospect of success, as it does not reveal an arguable case that
PIPSC acted in an arbitrary, discriminatory, or badfaith manner.
[4]
Section 22 of the Federal Public Sector Labour Relations and Employment Board Act
(S.C. 2013, c. 40, s. 365) permits the Board to decide “… any matter before it
without holding an oral hearing.”
[5]
In the circumstances of this case, I am
satisfied that I can decide the complaint based on the parties’ written
submissions.
[6]
For the reasons that follow, I have determined
that the events described do not establish an arguable case. The complaint is
dismissed.
II. Summary of the facts
[7] The complainant was
a member of PIPSC. On January 15, 2020, the Treasury Board of Canada
Secretariat (“the employer”) terminated his employment. On February 15, 2020,
he filed a grievance against the termination. PIPSC supported his grievance.
[8] On December 21, 2020, the
employer denied the grievance at the final level. It was referred to
adjudication before the Board, which consolidated it with three earlier
disciplinary grievances.
[9]
On March 23, 2023, the complainant, PIPSC, and
the employer agreed to settle the four grievances. Their agreement is reflected
in a terms of settlement document (“the settlement agreement”) that they signed
on March 30, 2023.
[10] Documents
provided to the Board demonstrate that after they signed the settlement
agreement, the complainant and PIPSC engaged in an email exchange about the
implementation of its terms. The exchange includes the following:
1) On
September 13, 2023, the complainant confirmed to the respondent that the
employer had fulfilled a term of the settlement agreement.
2) On
September 25, 2023, he contacted the respondent to advise that he wanted to
write a book about his experience as a federal public service employee.
3) He
wrote to PIPSC’s Office of the President on September 25, 2023, to express
dissatisfaction with his representation.
4) On
October 6, 2023, PIPSC responded, stating, in part, this:
… while we recognize that you are not
satisfied with the service you received, we are confident that the appropriate
support was provided by Institute representatives over a period of several
years, as evidenced by the termination settlement that you signed. As such, [PIPSC] considers the matter closed.
5) On
October 16, 2023, the respondent cautioned him against sharing his workplace
experiences, as “[d]iscussing matters that were deemed to be resolved by the
Settlement may result in a negative consequence for him.
6) On
October 27, 2023, he followed up with the respondent on an outstanding
obligation in s. 2 of the settlement agreement.
7) On
November 2, 2023, it confirmed that it was looking into the matter.
8) On
November 8, 2023, it sought clarification of any matters that remained
outstanding.
9) On
November 16, 2023, the complainant confirmed that the employer fulfilled one of
its two obligations under s. 2 of the settlement agreement.
10)
On November 17, 2023, the respondent indicated
that it would speak with the employer the following week. Later that day, it
confirmed that the employer considered that it had fulfilled its obligations
under s. 2 of the settlement agreement.
11)
On November 27, 2023, the respondent provided
the complainant with the most recent update from the employer s. 2 of the
settlement agreement. He replied on November 28, 2023.
12)
On November 29, 2023, the respondent wrote to
him about his contact with a management representative.
[11] On
January 24, 2024, PIPSC wrote to the Board to confirm that the settlement
agreement’s terms had been satisfied. The termination grievance and the three
disciplinary grievances were withdrawn. The Board closed its files.
[12] June
10, 2024, the complainant emailed the respondent, asking by what means he could
be released from the settlement agreement.
[13] On
June 27, 2024, the respondent’s counsel replied to indicate that contracts are
generally binding, unless duress or incapacity can be proven, and added this:
“… but as far as I know that wasn’t the case here.”
[14] On
July 5, 2024, the complainant responded, stating that he had been ill when the
settlement agreement was signed but that he had not known the degree to which
his illness had affected his cognition. He stated that he would contact his
doctor for information. He raised concerns about freedom of speech and the
feeling that the settlement agreement was unfair. He expressed remorse for
signing it.
[15] On
July 21, 2024, the complainant provided a physician’s letter dated July 17,
2024. It described the medical condition for which he was being treated and
included the following passage:
… His diagnosis was not made until December
2024 [sic]. In the time leading up to this diagnosis, patients often suffer from
a variety of symptoms including fatigue and issues affecting their
concentration and focus. Mr. Cound has done well with his treatments at present
and such symptoms have resolved.…
…
[16] On
August 9, 2024, PIPSC responded to state that the medical letter did not
demonstrate that the complainant lacked capacity or was unable to make a clear
decision when he signed the settlement agreement. PIPSC viewed it as a binding
contract. It declined to take any steps toward dissolving the settlement
agreement.
[17] On
August 10, 2024, the complainant wrote to PIPSC to allege that he had been
pressured to sign the settlement agreement. He provided information on his
medical condition in 2019, which was four years before he signed it. He
indicated that his circumstances in 2019 might have contributed to the
employer’s termination decision.
[18] On
September 11, 2024, PIPSC wrote to the complainant, indicating that it had
reviewed the information that he had provided. It maintained the position it
took in its correspondence with him on October 6, 2023, that the settlement
agreement was valid and enforceable. It stated that it would take no further
action. It reiterated this decision in another email to him on October 1, 2024.
III. Summary of the
arguments
A. For the complainant
[19] The
complainant argues that he was unwell when he signed the settlement agreement.
His illness was diagnosed on December 22, 2023. Fatigue is a documented effect
of his illness. His ability to understand the settlement agreement’s content
was impeded by fatigue and the pressure for him to accept the settlement
process.
[20] Any
contact with PIPSC from the time of signing the settlement agreement to that
time should not be taken as proof that he agreed with it.
[21] The
complainant’s position is that PIPSC’s October 6, 2023, response, indicating
confidence in the support that it had provided to him, demonstrates that it
acted in an arbitrary manner. It ignored the medical arguments and the
condition that impaired his ability to understand the settlement agreement. It
refused to act at that time and gave him no further consideration when he made
the actual request to nullify the settlement agreement some months later.
B. For the respondent
[22] The
respondent denies that it failed its duty of fair representation and states
that there were no compelling reasons to assist the complainant in an attempt
to nullify the settlement agreement. It argues that the complaint lacks an air
of reality.
[23] The
respondent considers that during the 15 months after he signed the settlement
agreement, the complainant’s communication was clear and cogent. It related to
expectations surrounding implementation.
[24] When
the complainant then raised the issue of a medical condition, the respondent
considered the medical information that he provided and determined that it was
not sufficient to support an argument to nullify the settlement agreement on
the basis that he lacked capacity. It responded promptly to advise the
complainant of its decision. When asked to reconsider its decision, it advised
him that the decision was final.
[25] The
respondent argued that it evaluated the complainant’s circumstances,
investigated the merits, and made a reasoned decision. It did not act
arbitrarily.
IV. Analysis
[26] This
complaint raises the issue of whether the complainant established an arguable
case that PIPSC breached its duty of fair representation in a manner that would
justify an oral hearing before the Board.
[27] When
the Board considers an application to dismiss a complaint summarily on the
basis that there is no arguable case, the decision maker assumes that the
information in the complaint is true. The Board set this out as follows in Reid v. Public Service Alliance of Canada,
2024 FPSLREB 100 at paras. 29 and 30:
[29]
In a
complaint like this one, the burden rests with the complainant to demonstrate a
breach of the duty of fair representation. However, when the Board is seized
with a request to summarily dismiss such a complaint without holding an oral
hearing, the factual allegations that the complainant submitted must be taken
as proven for the sake of determining if they could demonstrate the existence
of a breach of s. 187 of the Act.
This is often referred to as the “arguable-case” analysis.
[30]
However,
this principle must be nuanced. To be taken as true in the context of an
arguable-case analysis, factual allegations must be provable and have an air of
reality. Arguments and opinions need not be taken as proven; nor need mere
assumptions, speculations, or accusations be so taken (see Payne v. Public
Service Alliance of Canada, 2023 FPSLREB
58 at paras. 60 and 91;
Sganos v. Association of Canadian
Financial Officers, 2022 FPSLREB 30 at
paras. 80 and 81; Beniey v. Public Service Alliance of Canada, 2020 FPSLREB 32 at para. 57; Archer v.
Public Service Alliance of Canada, 2023
FPSLREB 105 at para. 29; and Corneau v. Association of Justice Counsel, 2023 FPSLREB 16 at para. 34).
[28] That
means that the facts alleged in the complaint are not deemed proven. I express
no opinion on the truth of those facts.
[29] The
complainant has the burden of proof in a complaint made under s. 187 of the Act. It requires the complainant to
present evidence sufficient to establish that the respondent failed to meet its
duty of fair representation. As expressed in s. 187, this required the
complainant to put forward a factual foundation that supported his position
that the respondent acted in a manner that was arbitrary, discriminatory, or in
bad faith.
[30] In
a complaint under s. 187 of the Act,
the burden of proof falls on the complainant to present sufficient evidence to
establish that the respondent failed to meet the duty of fair representation by
conducting itself in a manner that was arbitrary, discriminatory, or in bad
faith. As noted in Manella v. Treasury
Board of Canada Secretariat, 2010 PSLRB 128, “The bar for establishing
arbitrary conduct — or discriminatory or bad faith conduct — is purposely set
quite high”.
[31] The
Board will examine the actions of the respondent in handling the complainant’s
grievance and related matters, to determine whether they were “… fair, genuine
and not merely apparent, undertaken with integrity and competence, without
serious or major negligence, and without hostility towards the employee” (Canadian Merchant Service Guild v. Gagnon,
[1984] 1 S.C.R. 509 at 527).
[32] Further,
the Board has consistently held that a complainant’s disagreement with a
respondent’s handling of the grievance is not the gauge of whether the
respondent’s actions constitute an unfair labour practice. (See Mangat v. Public Service Alliance of Canada,
2010 PSLRB 52; Bergeron v. Public Service
Alliance of Canada, 2019 FPSLREB
48; Boudreault
v. Public Service Alliance of Canada, 2019 FPSLREB 87; and Andrews v.
Public
Service Alliance of Canada, 2021 FPSLREB 141.)
[33] The
crux of the complaint before me is the respondent’s failure to act on the
complainant’s request to nullify the settlement agreement. He provided
information to support his contention, and PIPSC assessed it as insufficient
for a claim that he lacked capacity when it was signed.
[34] Based
on the facts alleged in the complaint and the information before me, I am
unable to find a basis for an arguable case of arbitrary conduct,
discriminatory treatment, or bad faith that would establish a breach of s. 187
of the Act.
[35] Rather,
I find that when the complainant approached the respondent to express his
concern for his capacity, it prudently asked for medical evidence, to support
the claim. The document he provided speaks generally to issues of fatigue,
concentration, and focus that may be suffered by persons awaiting a diagnosis.
It makes no statement about the complainant’s specific symptoms, deficits, or
abilities at the time he signed the settlement agreement.
[36] I
find that the respondent considered and assessed the information when arriving
at its decision. It was a reasoned decision based on the content of the medical
information that the complainant provided, which does not demonstrate that
PIPSC acted in a way that was arbitrary or in bad faith.
[37] As
such, there is no basis for the Board’s intervention. I find that the
complainant did not establish an arguable case that the respondent breached its
duty of fair representation, and I dismiss the complaint.
V. Sealing order
[38] The
respondent requested that the Board issue a sealing order for Appendix E of its
written submission, which is the settlement agreement.
[39] The
respondent noted that paragraph 10 of the settlement agreement states that it
is confidential among the parties, the complainant, the respondent, and the
employer.
[40] The
respondent argued that it is important for the administration of justice to
protect the confidentiality of settlement agreements. Disclosure could have a
chilling effect on settling future disputes.
[41] The
complainant opposed the sealing order on the basis of the open court principle.
He argued that sealing the settlement agreement “chipped away” at the Board’s
jurisdiction. He had no issue with it being made public.
[42] In
Sherman Estate v. Donovan, 2021 SCC
25 at para. 38, the Supreme Court of Canada set out the test for an order
sealing a document filed with a court. The party seeking the order must
establish that:
1) not
sealing the document poses a serious risk to an important public interest;
2) the
order sought is necessary to prevent this serious risk to the identified
interest because reasonably alternative measures will not prevent this risk;
and,
3) as a
matter of proportionality, the benefits of the order outweigh its negative
effects.
[43] In
Reid v. Deputy Head (Library and Archives
of Canada), 2021 FPSLREB 104 at para. 84, Ross v. Public Service Alliance of Canada, 2017 FPSLREB 13 at para.
12, and
Valderrama v. Deputy
Head (Department of Foreign Affairs, Trade and Development), 2020 FPSLREB
86 at para. 12, the Board concluded that there is an important public interest
in preserving the confidentiality of settlement agreements and that sealing is
necessary to protect that interest.
[44] I
also note the Board’s decision in Catahan
Niles v. Professional Institute of the
Public Service of
Canada, 2024 FPSLREB 169, in which it held at para. 80 that “… the public
interest in encouraging settlement justifies a sealing order and outweighs the
public interest in an open and transparent justice system.”
[45] Accordingly,
I am satisfied that sealing the settlement agreement in this case is necessary
to protect an important public interest. The benefit of a sealing order
outweighs any negative effect, including the potential damage to the
willingness of parties to settle disputes if the Board can breach their
agreements to confidentiality.
[46] Paragraph
10 of the settlement agreement is a succinct statement of the parties’
intention that confidentiality should extend to all aspects of their
settlement, including the settlement agreement. Therefore, consistent with that
provision, and as agreed by the parties, the sealing order will extend to the
complete settlement agreement.
[47] For
all of the above reasons, the Board makes the following order:
(The
Order appears on the next page)
VI. Order
[48] The
complaint is dismissed.
[49] The
settlement agreement found at Appendix E of the respondent’s submission of
November 6, 2024, is ordered sealed.
April 14, 2025.
Joanne Archibald,
a panel of the Federal Public Sector
Labour Relations and Employment Board
