Rules and Practice Notes

Definitions

• In these Rules,
  1. "Act" means the Public Service of Ontario Act, 2006;
  2. "Board" means the Public Service Grievance Board;
  3. "Case" means any proceeding before the Board;
  4. "Day" means any day of the week Monday to Friday, excluding a statutory holiday and any other day the Board is closed;
  5. "Electronic hearing" means a hearing held by telephone conference, videoconference or some other similar form of electronic technology allowing persons to communicate with another;
  6. "Filing" means the effective delivery of documents to the Secretary of the Board:
  7. "Complaint" means a complaint filed by a complainant;
  8. "Complainant" means a person entitled to file a complaint with the Board under the Public Service of Ontario Act, 2006;
  9. "Hearing" is any part of a proceeding including preliminary matters and/or the submission of evidence and argument on the merits of the complaint;
  10. "Representative" means counsel or agent who is authorized to represent the complainant, the employer or any other party;
  11. "Secretary" means the Secretary of the Board and includes his or her representative.

Practice Notes and Information Bulletins

• The Board may issue practice notes and information bulletins from time to time, which should be referred to for information on Board practice.

Applications to the Board

3.

• (1) An application to the Board shall be delivered to the Board in Form 1 and must include a copy of the complaint that was filed with the deputy minister.
• (2) The Board shall give a copy of the application to the deputy minister concerned.
• (3) The Employer shall deliver to the Board in Form 2 its response to the application no later than 20 days prior to the first scheduled hearing date.

Form 1a –Complaint under Part V of the Act Political Activity and/or Part VI of the Act Disclosing and Investigating Wrongdoing

4.

• (1) An application to the Board shall be delivered to the Board in Form 1a.
• (2) The Board shall give a copy of the application to the deputy minister concerned.
• (3) The Employer shall deliver to the Board in Form 2a its response to the application no later than 20 days prior to the first scheduled hearing date.

Board Procedures

• (1) The Board shall fix a time and place for the hearing and give written notice to the complainant and to the deputy minister.
• (2) One member of the Board may hear and dispose of a complaint.

• (1) The complainant may present his or her complaint personally or may be represented by a representative.
• (2) A party to a proceeding may, at an oral or electronic hearing,
  
  1. call and examine witnesses and present evidence and submissions; and
  2. conduct cross-examinations of witnesses at the hearing reasonably required for a full and fair disclosure of all matters relevant to the issues in the proceeding.
• (3) A witness at an oral or electronic hearing is entitled to be advised by counsel or an agent as to his or her rights but such counsel or agent may take no other part in the hearing without leave of the tribunal.
• (4) Where an oral hearing is closed to the public, the witness’s representative is not entitled to be present except when that witness is giving evidence.

• The Board may direct the parties to participate in a pre-hearing conference to consider:
  1. the settlement of any or all of the issues;
  2. the simplification of the issues;
  3. facts or evidence that may be agreed upon;
  4. the dates by which any steps in the proceeding are to be taken or begun;
  5. the estimated duration of the hearing; and
  6. any other matter that may assist in the just and most expeditious disposition of the proceeding.

• The Board may, at any stage of the proceeding before all hearings are complete, make orders for:
  1. the exchange of documents;
  2. the oral or written examination of a party;
  3. the exchange of witness statements and reports of expert witnesses;
  4. the provision of particulars;
  5. any other form of disclosure.

• (1) A decision of the Public Service Grievance Board is final.
• (2) The Board shall send each party who participated in the proceeding, or the party’s representative, a copy of its final decision or order, including the reasons if any have been given,
  1. by regular letter mail;
  2. by electronic transmission;
  3. by telephone transmission of a facsimile.
• (3) If the copy is sent by regular letter mail, it shall be sent to the most recent addresses known to the Board and shall be deemed to be received by the party on the fifth day after the day it is mailed.
• (4) If the copy is sent by electronic transmission or by telephone transmission of a facsimile, it shall be deemed to be received on the day after it was sent, unless that day is a holiday, in which case the copy shall be deemed to be received on the next day that is not a holiday.
• (5) If a party that acts in good faith does not, through absence, accident, illness or other cause beyond the party’s control, receive the copy until a later date than the deemed day or receipt, subsection (3) or (4), as the case may be, does not apply.

• The Board shall compile a record of any proceeding in which a hearing has been held which shall include:
  1. any application, complaint, reference or other document, if any, by which the proceeding was commenced;
  2. the notice of any hearing;
  3. any interlocutory orders made by the tribunal;
  4. all documentary evidence filed with the tribunal, subject to any limitation expressly imposed by any other Act on the extent to or the purposes for which any such documents may be used in evidence in any proceeding;
  5. the transcript, if any, of the oral evidence given at the hearing; and
  6. the decision of the tribunal and the reasons therefore, where reasons have been given.

Dismissal Without a Hearing or Consultation

• Where the Board considers that a complaint does not make out a case for the orders or remedies requested, even if all the facts stated in the complaint are assumed to be true, the Board may dismiss the complaint without a hearing or consultation. In its decision the Board will set out its reasons.

Notice of Hearing or Mediation/Arbitration (Med/Arb)

• Where a hearing or mediation/arbitration will be held in a case, written notice will be given to all parties setting out the time, date and place of hearing or consultation.

• In those complaints where third party rights are affected such, as in competition complaints, the onus shall be on the employer to identify the affected parties and provide:
  1. the third party with notice that the complaint has been filed at the Board and the date, place and time of the first day of hearing;
  2. the Board with the name and address of any third party affected by a complaint for the purpose of the Board providing the third party with notice of any proceedings subsequent to the initial hearing.

• Where the Secretary considers it impractical to give written notice of hearings or any other proceedings, the Secretary may give verbal or any form of electronic notice of the proceedings.

• Where any person properly served with a notice of hearing fails to attend the scheduled hearing, the Board may proceed to dispose of the complaint in that person’s absence and without further notice.

Written and Electronic Hearings

• The Board may conduct a hearing in any case before it in an electronic or written format, as the Board considers advisable. Unless the only purpose of the hearing is to deal with procedural matters, the Board will not conduct an electronic hearing or written hearing if a party satisfies the Board that holding an electronic or written hearing is likely to cause the party significant prejudice.

• Where the parties agree, the hearing may be held, in whole or in part, in written or electronic format, or any combination thereof.

Adjournment or Consolidation of Cases

• Adjournments requested by a party will normally only be granted upon agreement of all parties. Such adjournments must be communicated to the Board in writing and copied to all parties.

• Where it appears that adjournments by agreement of the parties have excessively delayed the commencement of the hearing process, the Board may on its own volition adjourn the case sine die. If a case has been adjourned sine die under this rule and one or more of the party's request that the complaint be scheduled for hearing, the dates set by the Board will be pre-emptive and adjournments will only be granted with consent of the Board on such terms as the Board considers appropriate.

• The Board may adjourn or stay any case on such terms as it considers advisable.

• When the Board adjourns a complaint sine die on agreement of the parties, the matter will be dismissed after the expiry of one year from the date on which the adjournment is granted, without further notice to the parties, unless one or more of the parties request that the complaint be scheduled for hearing within that period.

• The Board may consolidate or hear cases at the same time or immediately one after the other when it appears to the Board that:
  1. the complaints have a question of law or fact in common;
  2. the relief claimed in the complaints arises out of the same transaction or occurrence or series of transactions or occurrences, or;
  3. for any other reason an order ought to be made under this rule.

Reconsideration

• 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.

Constitutional Challenges

• A party intending to challenge the constitutional validity of any law, regulation or rule must give prompt notice to the Board and the Attorney General for Ontario and Canada in advance of the hearing.

Other Matters

• Where matters are not covered by these rules, the practice will be decided in a manner consistent with the rules or in any way the Board considers advisable.

Effective Date

• These Rules are effective as of February 1, 2013.

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 P0037/92 Rampersad and WCB, P006/87 Pelissero and GO Transit and P0045/93 Wells/Larson and the LCBO) or the Board is without jurisdiction to grant a remedy (see P0144/95 Laird et al, P0050/95 Blakney et al, P0024/99 Armstrong et al and P0025/99 Easto et al), 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.

When the Board requests and sets a date for receipt of further particulars, information or submissions regarding the complaint, the Board may:

1. dismiss the complaint without hearing, if the particulars, information or submissions regarding the complaint are not received by the Board on the date set;
2. decide that there is a need for a hearing to deal with any issue regarding its jurisdiction;
3. request further submissions from the parties before deciding whether or not to hold a hearing;
4. dismiss the complaint without a hearing when the Board has determined it is without jurisdiction to hear or grant a remedy based upon its review of the particulars, information or submissions regarding the complaint.

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 mediation after receiving a complaint under Regulation 378/07 dealing with dismissal for cause, discipline, working conditions and terms of employment or after receiving a complaint under Part V of the Act (Political Activity) and/or Part VI of the Act (Disclosing and Investigating Wrongdoing), the Board in order to facilitate that mediation may request the employer to deliver to the Board its response to the complaint in Form 2 no later than 20 days prior to the first scheduled mediation date.

In order to reduce its own travel expenses and hearing costs, the Public Service Grievance Board as a general rule will schedule mediations/hearings at its offices at 180 Dundas Street West, Toronto, Ontario, unless scheduling at this location results in unreasonable expense and inconvenience for either party.

Presenting Documents and requests for confidentiality at PSGB Hearings

When documents are filed with the PSGB, 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 should be relevant to the issues the PSGB 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 PSGB. 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 Secretary [Registrar], at 180 Dundas Street West, Suite 600, Toronto, Ontario, M5G 1Z8, Fax: 416-326-1396 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 disclosure of information to the Board, by writing to the Secretary [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/onpgb/.  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 PSGB 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 PSGB should address a request in writing to the Secretary [Registrar], 180 Dundas Street West, Suite 600, Toronto, Ontario, M5G 1Z8, Fax: 416-326-1396 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 PSGB is not one of the tribunals to whom the Tribunal Adjudicative Records Act, 2019, which came into force on July 1, 2019, applies.

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