Case Name:

Coleman-Kamphuis v. Treasury Board (Department of

National Defence)
Between
Leanne Coleman-Kamphuis, Applicant, and
Treasury Board (Department of National Defence), Respondent
IN THE MATTER OF an application for an extension of time
referred to in paragraph 61(b) of the Public Service Labour
Relations Board Regulations
[2012] C.P.S.L.R.B. No. 56
[2012] C.R.T.F.P.C. no 56
2012 PSLRB 56
2012 CRTFP 56
PSLRB File No. 568-02-205
Canada Public Service Labour Relations Board
Panel: Linda Gobeil, Vice-Chairperson
Heard: November 28, December 13, 2011;
January 6, 2012 by written submissions.
Decision: May 10, 2012.
(52 paras.)
Labour arbitration -- Process and procedure -- Grievances -- Time for.
Labour arbitration -- Process and procedure -- Arbitration -- Time limits.
The grievor brought an application for an extension of time in which to file her grievance. She alleged she
had been discriminated against on the grounds of disability. Relying on the advice of counsel, she first
complained to the Canadian Human Rights Commission. Her complaint was rejected. She was then advised
to file a grievance. The grievor contacted her bargaining agent and filed her grievance some time later. The
grievor had been diagnosed with and treated for cancer, became the sole caregiver to her two children, one
of whom had ADHD, when her husband was posted to Afghanistan and Toronto, and was under the care of
both a psychiatrist and a psychologist in the months before her application.
HELD: Application allowed. The grievor demonstrated clear, cogent and compelling reasons to explain the
delay in filing the grievance. Based on the unique circumstances of the case, the adjudicator decided to
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exercise her discretion to grant the extension of time. The grievor had not been in a position to respect the
time limit for filing a grievance.
Statutes, Regulations and Rules Cited:
Public Service Labour Relations Act, S.C. 2003, c. 22, Part 1, s. 45
Public Service Labour Relations Board Regulations, s. 61, s. 61(b)
Public Service Modernization Act, s. 2
Tribunal Summary:
Index terms:
Extension of time
Extension of time limits to file grievance -- Cogent and compelling reasons -- Discrimination -- Disability.
The applicant sought an extension of time in which to file a grievance -- the applicant alleged that she had
been discriminated against on the grounds of disability -- relying on the advice of counsel, she first
complained to the Canadian Human Rights Commission but her complaint was rejected, and she was
advised to file a grievance -- she contacted her bargaining agent but filed her grievance only some time later
-- the applicant had been diagnosed with and treated for cancer, became the sole caregiver to her two
children, one of whom had ADHD, when her husband was posted to Afghanistan and Toronto, and was
under the care of both a psychiatrist and a psychologist in the months before her application -- the applicant
demonstrated clear, cogent and compelling reasons to explain the delay -- based on the unique
circumstances of the case, the Vice-Chairperson decided to exercise her discretion to grant the extension of
time -- the applicant had not been in a position to respect the time limit for filing a grievance.
Application allowed.
Appearances:
For the Applicant: Allan Phillips, Professional Institute of the Public Service of Canada.
For the Respondent: Mathieu Giroux, Treasury Board.
REASONS FOR DECISION
I. Application before the Chairperson
1 On November 30, 2009, the Professional Institute of the Public Service of Canada ("the applicant's
representative") applied to the Chairperson of the Public Service Labour Relations Board ("the Board") on
behalf of Leanne Coleman-Kamphuis ("the applicant") for an extension of the time set out in the collective
agreement to file a grievance. The applicable collective agreement is between the Treasury Board ("the
respondent") and the applicant's representative, which is also the bargaining agent for the Health Services
Group; expiry date September 30, 2011 ("the collective agreement").
2 Pursuant to section 45 of the Public Service Labour Relations Act ("the Act"), enacted by section 2 of the
Public Service Modernization Act, S.C. 2003, c. 22, the Chairperson has authorized me, in my capacity as
Vice-Chairperson, to exercise any of his powers or to perform any of his functions under paragraph 61(b) of
the Public Service Labour Relations Board Regulations ("the Regulations") to hear and decide any matter
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relating to extensions of time. Section 61 of the Regulations reads as follows:
61. Despite anything in this Part, the time prescribed by this Part or provided for in a
grievance procedure contained in a collective agreement for the doing of any act, the
presentation of a grievance at any level of the grievance process, the referral of a
grievance to adjudication or the providing or filing of any notice, reply or document may
be extended, either before or after the expiry of that time,
a. by agreement between the parties; or
b. in the interest of fairness, on the application of a party, by the Chairperson.
II. Summary of the evidence
3 On November 30, 2009, the applicant's representative wrote to the Board, arguing that the applicant had
been on sick leave since 2008 and that the respondent discriminated against her on the basis of her
disability. The applicant's representative explained that she complained first to the Canadian Human Rights
Commission (CHRC) about the discrimination. However, on August 26, 2009, the CHRC rejected her
complaint and advised her that she should instead file a grievance under her collective agreement.
4 In its letter, the applicant's representative informed the Board and the respondent that the applicant was
about to file her discrimination grievance and that it anticipated that the respondent would object to its
timeliness. The applicant's representative therefore filed, by way of the same letter, an application for
extension of time limits to file the grievance.
5 The applicant filed her grievance with the respondent on December 1, 2009.
6 On December 16, 2009, the respondent objected to the applicant's grievance on the basis that it was
untimely and argued that she had not provided the Board with clear, cogent and compelling reasons
explaining the delay.
7 The respondent added that the CHRC had informed the applicant on August 26, 2009 that her complaint
was rejected and that she should speak with a bargaining agent representative without delay about her
grievance.
8 The respondent contended that the applicant waited until December 1, 2009 to file her grievance, which
was three months after she received the CHRC's response and was after the 25 days provided in the
collective agreement for the filing of a grievance had expired. Moreover, the respondent argued that the fact
that the applicant was sick in 2008 was not an excuse for not filing her grievance on time since she had been
able to file a complaint with the CHRC at that time.
9 The parties agreed to proceed on the basis of written submissions.
III. Summary of the arguments
A. For the applicant
10 In addition to its letter of November 30, 2009, the applicant's representative, in its submissions of
November 28, 2011 and January 6, 2012, went to great lengths to explain the facts that led to the request for
an extension of time.
11 The applicant's representative explained that the applicant was employed as a case manager in Halifax
at the NU-CHN-3 group and level with the Department of National Defence. Since 2004, she has been
employed in Halifax. She has been off work since 2008 and does not know when she will return. She is
presently considered totally disabled and is receiving benefits from Sun Life. The applicant's representative
explained that, because of the applicant's medical situation, she has not been able to assist him with this
request for an extension of time.
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12 In 2005, the applicant was the subject of a harassment complaint filed against her by co-workers. It
was investigated and, a year later, deemed to be unfounded.
13 The applicant's representative explained that in May 2006, the applicant was diagnosed with cancer. A
year later, while recovering from cancer treatment, she became the sole caregiver for her two children after
her husband was posted to Kandahar, Afghanistan.
14 In 2009, the applicant again found herself the sole caregiver to her children when her husband
attended Staff College in Toronto.
15 The applicant's representative argued that, from the beginning of the applicant's employment in Halifax
in 2004, she was the victim of "... rumour, innuendo and direct attacks from her co-workers." The applicant's
representative also submitted that she tried to resolve the problem herself and that she did not get any
support from her employer.
16 In June 2, 2009, while the applicant was represented by outside counsel, she filed a complaint with the
CHRC, alleging discrimination.
17 On August 26, 2009, the CHRC informed the applicant that it rejected her complaint and that she
should contact her bargaining agent. The applicant's representative explained that, at that time, the applicant
was being treated by both a psychiatrist and a psychologist.
18 The applicant's representative contended that the applicant contacted him in November 2009. He
realized then that she was in no condition to assist him with her representation. On December 1, 2009, a
grievance alleging discrimination on the basis of her illness was presented to the respondent, which objected
to the grievance on the basis of timeliness.
19 The applicant's representative argued that the CHRC's decision, to not deal with the applicant's
complaint, combined with her personal circumstances of being very sick and in charge of two children -- one
diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) -- caused her to become depressed. Only
after further treatment did she contact her bargaining agent.
20 The applicant's representative referred me to the criteria used by the Board to determine whether an
extension of time should be granted. Essentially, the applicant's representative argued that the applicant has
a clear, cogent and compelling reason to explain the delay. When she received the CHRC's decision, she
was under the care of a psychiatrist and had no support at home. As soon as the treatment began to show
results, she contacted her bargaining agent. That was late November 2009; she filed her grievance and this
application on December 1, 2009.
21 As for acting diligently, the applicant's representative maintained that the fact that the applicant filed a
complaint with the CHRC demonstrated her intent to deal with the problem.
22 Moreover, when the applicant filed her complaint with the CHRC, she was receiving advice from
outside counsel. She should not be punished for the advice that she received. The applicant's representative
maintained that the only discussions the bargaining agent had with the applicant before she filed her
grievance were about either another matter before the College of Registered Nurses of Nova Scotia, or the
hiring of her outside counsel.
23 The applicant's representative referred me to Anderson v. Treasury Board (Revenue Canada), PSSRB
File No. 149-02-49 (19830708), Vincent v. Treasury Board (Solicitor General - Correctional Services),
PSSRB File No. 166-02-21022 (19910515), and Riche v. Treasury Board (Department of National Defence),
2009 PSLRB 157.
24 The applicant's representative argued that, in this case, based on the Board's jurisprudence, the delay
for filing the grievance is acceptable. Although the applicant's representative did not specify the length of the
delay, he suggested that it is either 3 months, assuming that the 25-day time limit calculation starts on the
day on which the CHRC rejected the complaint (August 26, 2009), or 6 months, if the calculation starts on
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the day on which the applicant filed her complaint with the CHRC (June 2, 2009).
25 Finally, the applicant's representative concluded that denying this application would only add to the
injustice that the applicant endured for five years in a poisoned work environment. While the chance of
success of the grievance is unknown, it argued that the applicant deserves the right to present her grievance.
The applicant's representative referred me to Jarry and Antonopoulos v. Treasury Board (Department of
Justice), 2009 PSLRB 11.
B. For the respondent
26 In its submissions filed with the Board on December 13, 2011, the respondent's representative argued
that the applicant failed to raise the issue of discrimination before she complained to the CHRC in June
2009.
27 The respondent's representative reviewed the criteria developed by the Board in Schenkman v.
Treasury Board (Public Works and Government Services Canada), 2004 PSSRB 1, and concluded that the
applicant did not demonstrate that she had a clear, cogent and compelling reason to explain the delay.
Specifically, the respondent's representative argued that the applicant contacted her bargaining agent about
the workplace issues in November 2008, February 2009 and June 2009. However, she filed her grievance
only on December 1, 2009.
28 Moreover, the respondent's representative argued that the CHRC informed the applicant on August 26,
2009 that her complaint was rejected, that as a public servant she had the right to file a grievance under the
Act and that she should contact her bargaining agent representative without delay. The respondent's
representative submitted that she nevertheless waited 98 days before filing her grievance.
29 As for the length of the delay, the respondent's representative contended that, as per clause 34.12 of
the collective agreement, the applicant had 25 days to file her grievance. The respondent's representative
maintained that the events leading to the filing of the grievance happened prior to July 2008, meaning that
the applicant's grievance is late by 18 months. Alternatively, he argued that, if the calculation for the time limit
starts on the day on which the complaint was filed with the CHRC, i.e., June 2, 2009, then the grievance is
seven months late, since it was filed on December 1, 2009. The respondent's representative also stated that,
even if the calculation for the time limit starts on the date on which the CHRC rejected the complaint, August
26, 2009, the grievance is still untimely. The respondent's representative concluded by stating that, in any
scenario, the length of the delay is unacceptable since the grievance was filed considerably after the time
limit expired. The respondent's representative referred me to Riche.
30 The respondent's representative argued that the applicant has not been diligent. Even when the CHRC
told her on August 26, 2009 that she should file a grievance and contact her bargaining agent, she waited
until December 2009 to act.
31 The respondent's representative concluded that the applicant should suffer the consequences of her
own inaction and that the respondent is not responsible for the errors or bad advice that she might have
received from her outside counsel. The respondent's representative referred me to Vidlak v. Treasury Board
(Canadian International Development Agency), 2006 PSLRB 96, Featherston v. Deputy Head (Canada
School of Public Service) and Deputy Head (Public Service Commission), 2010 PSLRB 72, and Dumas v.
Staff of the Non-Public Funds, Canadian Forces, 2007 PSLRB 74.
32 Moreover, the respondent's representative stated that, had the allegations referred to in the grievance
been raised with the respondent in 2008, the respondent would have had a chance to thoroughly investigate
them. The passage of time renders that investigation more difficult and prejudices the respondent's ability to
carry it out.
33 Finally, the respondent's representative argued that the chance of success of the grievance is limited
since the applicant could only have grieved events that occurred in the 25 days before December 1, 2009.
Given that the applicant has been away from work since 2008, that could prove difficult.
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34 Finally, the respondent's representative referred me to Lagac v. Treasury Board (Immigration and
Refugee Board), 2011 PSLRB 68.
IV. Reasons
35 From the outset, I should point out that the parties do not dispute that the grievance's filing was
untimely.
36 It has been well established by the Board's jurisprudence that the following criteria ought to be
considered when deciding whether an extension of time should be granted:
* clear, cogent and compelling reasons for the delay;
* the length of the delay;
* the due diligence of the applicant;
* balancing the injustice to the applicant against the prejudice to the respondent; and
* the chances of success of the grievance.
37 Those criteria were first applied in Schenkman. They were applied recently in Grouchy v. Deputy Head
(Department of Fisheries and Oceans), 2009 PSLRB 92, and in Prvost v. Office of the Superintendent of
Financial Institutions, 2011 PSLRB 119. In Lagac, while considering those criteria, the Vice-Chairperson at
paragraph 46 stated, "Each criterion is not necessarily equally important. The facts adduced must be
examined to decide each criterion's weight. Some criteria might not apply, or only one or two might weigh in
the balance." I agree.
38 Clause 34.12 of the collective agreement reads as follows:
34.12 A grievor may present a grievance to the first step of the procedure in the manner
prescribed in clause 34.06, not later than the twenty-fifth (25th) day after the date on
which the grievor is notified or on which the grievor first becomes aware of the action or
circumstances giving rise to the grievance ...
[Emphasis added]
39 In July 2008, the applicant went on sick leave. She is still on sick leave, and there is no foreseeable
date for her return to work.
40 On June 2, 2009, the applicant filed a complaint with the CHRC against the respondent, alleging
discrimination based on her medical condition.
41 On August 26, 2009, the CHRC informed the applicant that it did not accept her complaint at that time.
After receiving that letter, the applicant waited until December 1, 2009 to file her grievance.
42 I must first decide whether the explanation provided by the applicant's representative to explain the late
filing, namely, that she was seriously ill, that she was without support and that she relied on the advice of her
outside counsel, constitutes a clear, cogent and compelling reason for the delay.
43 After a careful review of the submissions and jurisprudence, I have decided that, in this case, the
applicant demonstrated a clear, cogent and compelling reason to explain the delay and that, based on the
unique and exceptional circumstances of this case, I should exercise my discretion and grant the extension
of time.
44 Although I completely agree with the comments made by the Vice-Chairperson in Salain v. Canada
Revenue Agency, 2010 PSLRB 117, at para 44, that "[t]ime limits are meant to be respected by the parties
and should be extended in exceptional only [sic] circumstances. Those circumstances always depend on the
facts of each case." I find the circumstances of this case to be exceptional. The applicant's reasons
constitute a clear, cogent and compelling reason for the delay.
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45 In this case, it is not in dispute that, in the months before the grievance should have been filed, the
applicant was still receiving cancer treatment and had to provide sole care for her two children, one of whom
had been diagnosed with ADHD, all while her husband was in Staff College. In addition, the applicant had to
face other challenges before the College of Registered Nurses of Nova Scotia. Those were difficult
circumstances, not of her own making and over which she did not have control. In my view, those events
explain why she was not in a position to respect the time limit for filing a grievance. Although I note that her
situation did not prevent her from filing a complaint before the CHRC, I still believe that her situation is
exceptional and that, in her case, she was going through such a difficult time in her life that she was not in a
position to sift through the recourses available to her and to respect their requirements.
46 As for the respondent's argument that the applicant waited five months after the CHRC informed her
that they would not entertain her complaint and that she should consult her union without delay, I note from
the undisputed statement from the applicant's representative that she was then suffering from depression
and was under medical care by two professionals. Again, I believe that it would be unfair to insist that the
applicant should have filed a grievance when she was under both psychiatric and psychological care. Under
the circumstances, it is also hard to conclude that she was not diligent.
47 Addressing the length of the delay, the respondent's representative argued that the grievance is late by
either 18 months or, alternatively, 5 months which is still excessive. In my view, although the delay
substantially exceeded the time limit, the circumstances of this case are such that less weight should be
given to this criterion.
48 As for the prejudice that the extension of time could cause to the respondent, this factor is hard to
evaluate. While the respondent raised this issue in argument, it provided no factual context to its position that
it would be prejudiced in its defence of the grievance. It did not, for example, allege that key witnesses were
now unavailable or that key documents had been destroyed. Instead, it argued that its defence would be
made more difficult, which is the case in any case involving the passage of time.
49 The criterion of the chance of success of the grievance is difficult to measure, especially in the absence
of evidence as to its merits. Therefore, I will not rely on this criterion to determine the merit of the application.
50 Finally, although I conclude that the applicant has a clear, cogent and compelling reason to explain the
late filing of her grievance, I want to point out that the circumstances of this case are unique and
distinguishable from the other cases submitted by the parties. Again, in light of the fact that the applicant has
been off work since 2008 with no planned return date and that she is presently unable to provide assistance
in this matter for medical reasons, I urge the parties to work together to find a mutually acceptable
settlement.
51 For all of the above reasons, I make the following order:
V.Order
52 The application for an extension of time to file the grievance is allowed.
May 10, 2012.
Linda Gobeil,
Vice-Chairperson
cp/e/qljxh
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