Regulations Amending the Public Service Staffing Complaints Regulations: SOR/2022-243

Canada Gazette, Part II, Volume 156, Number 25

Registration
SOR/2022-243 November 22, 2022

FEDERAL PUBLIC SECTOR LABOUR RELATIONS AND EMPLOYMENT BOARD ACT
PUBLIC SERVICE EMPLOYMENT ACT

The Federal Public Sector Labour Relations and Employment Board makes the annexed Regulations Amending the Public Service Staffing Complaints Regulations under section 36 of theFederal Public Sector Labour Relations and Employment Board Act footnote a and section 109footnote b of the Public Service Employment Act footnote c.

Ottawa, November 21, 2022

Edith Bramwell
Chairperson of the Federal Public Sector Labour Relations and Employment Board

Regulations Amending the Public Service Staffing Complaints Regulations

Amendments

1 (1) Subsection 1(1) of the Public Service Staffing Complaints Regulations footnote 1 is amended by adding the following in alphabetical order:

contact information
means a telephone number, mailing and electronic address. (coordonnées)
respondent
means
  • (a) the deputy head, in the case of a complaint that relates to a lay-off, revocation, appointment or proposed appointment in respect of which the Commission has authorized the deputy head under section 15 of the Act to exercise or perform any of the Commission’s powers and functions; or
  • (b) the Commission, in any other case. (intimé)
signature
means a handwritten or electronic signature that consists of one or more letters, characters, numbers or other symbols in digital form and that is incorporated in, attached to or associated with an electronic document or electronic information. (signature)

(2) Subsection 1(3) of the Regulations is replaced by the following:

Accessibility Commissioner

(3) For the purposes of these Regulations, the Accessibility Commissioner is a participant in a proceeding in relation to a complaint if the Accessibility Commissioner has given notice under subsection 20.1(3) that they intend to make submissions regarding an issue raised by the complainant involving the contravention of a provision of regulations made under subsection 117(1) of the Accessible Canada Act.

2 Section 3 of the Regulations is replaced by the following:

When notice considered received

3 A notice that is sent to a party, an intervenor, the Canadian Human Rights Commission or the Accessibility Commissioner is considered to have been received

3 (1) Subsections 5(1) and (2) of the Regulations are replaced by the following:

Amendment of time

5 (1) The Board may extend or reduce the time to do any act or file any notice or other document in relation to a complaint.

(2) Subsection 5(3) of the French version of the Regulations is replaced by the following:

Décision

(3) La Commission des relations de travail et de l’emploi décide s’il y a lieu ou non, par souci d’équité, de proroger ou de réduire le délai et, le cas échéant, détermine la durée de celui-ci.

4 Section 8.1 of the Regulations is replaced by the following:

Informal and expeditious proceeding

8.1 Proceedings before the Board may be conducted as informally and expeditiously as the circumstances and the considerations of fairness permit.

Complaint considered withdrawn

8.2 The Board may, on its own initiative, send a notice of status review to each of the parties that requires them to make submissions stating the reasons why the complaint should not be considered to be withdrawn and, if there is no response within the period specified by the Board, may consider the complaint to be withdrawn.

5 Subsection 10(2) of the Regulations is replaced by the following:

Receipt of complaint

(2) A complaint is considered to have been received by the Board

6 (1) Paragraph 11(a) of the Regulations is replaced by the following:

(2) Paragraph 11(c) of the Regulations is replaced by the following:

7 Sections 12 and 13 of the Regulations are replaced by the following:

Procedure on receipt of complaint

12 On receiving a complaint, the Board must acknowledge its receipt and send a copy of it and all supporting documents to the respondent.

Names and addresses of parties

13 Within 10 days after receiving a copy of the complaint and all supporting documents, the respondent must provide the Board with the names and business addresses of the other parties, including their electronic mail addresses, if any.

8 (1) Paragraph 15(1)(b) of the Regulations is replaced by the following:

(2) Subsection 15(2) of the Regulations is replaced by the following:

Request to mediate

(2) The complainant or respondent may, before the date of the hearing and with the agreement of the other party, request the Board to refer the complaint to mediation.

9 (1) Subsection 16(1) of the Regulations is replaced by the following:

Exchange of information

16 (1) To facilitate the resolution of the complaint, the complainant and respondent must, as soon as feasible after the complaint has been filed, exchange all relevant information regarding the complaint.

(2) Subsection 16(3) of the Regulations is replaced by the following:

Order to exchange information

(3) If the complainant or respondent does not complete the exchange of all relevant information as required by subsections (1) and (2), the Board may order the parties to complete the exchange within the time specified by the Board.

10 (1) Subsection 17(1) of the Regulations is replaced by the following:

Request for order to provide information

17 (1) If a party refuses to provide information, the complainant or respondent may, after the time provided for the exchange of information, request the Board to order that the information be provided.

(2) Paragraph 17(2)(a) of the Regulations is replaced by the following:

(3) The portion of subsection 17(4) of the Regulations before paragraph (a) is replaced by the following:

Order to provide information

(4) The Board must order that the complainant or respondent be provided with the information if the Board determines that the information may be relevant and that its provision will not

(4) Subsection 17(6) of the French version of the Regulations is replaced by the following:

Durée des conditions

(6) Les conditions de l’ordonnance s’appliquent avant et après l’audience sur la plainte ou après tout autre règlement de celle-ci.

11 (1) Paragraph 19(2)(a) of the Regulations is replaced by the following:

(2) Paragraph 19(2)(c) of the Regulations is replaced by the following:

(3) Subsection 19(3) of the Regulations is replaced by the following:

Submissions

(3) The Board must give the parties and, if they are participants, the Canadian Human Rights Commission and the Accessibility Commissioner, the opportunity to make submissions in respect of the application.

12 (1) The portion of subsection 20(1) of the Regulations before paragraph (a) is replaced by the following:

Notice of issue

20 (1) If the complainant raises an issue involving the interpretation or application of the Canadian Human Rights Act in a complaint made under subsection 65(1) or 77(1) of the Act, the complainant must notify in writing the Canadian Human Rights Commission under subsection 65(5) or section 78 of the Act. The notice must include

(2) Paragraphs 20(1)(b) and (c) of the Regulations are replaced by the following:

(3) Subsection 20(3) of the French version of the Regulations is replaced by the following:

Intention de présenter des observations

(3) Dans les quinze jours suivant la réception de l’avis, la Commission canadienne des droits de la personne donne avis à la Commission des relations de travail et de l’emploi de son intention de présenter ou non des observations concernant la question visée à l’alinéa (1)d).

(4) Subsection 20(4) of the English version of the Regulations is replaced by the following:

Board to provide copies

(4) The Board must give a copy of the notice from the Canadian Human Rights Commission to each of the parties and each of the intervenors, if any.

13 The Regulations are amended by adding the following after section 20:

Notice to the Accessibility Commissioner

Notice of issue

20.1 (1) If the complainant raises an issue involving the contravention of a provision of regulations made under subsection 117(1) of the Accessible Canada Act in a complaint made under subsection 65(1) or 77(1) of the Act, the complainant must notify in writing the Accessibility Commissioner under subsection 65(9) or section 78.1 of the Act. The notice must include

Copy of the notice — complainant

(2) The complainant must give a copy of the notice to each of the other parties, to the Board and to each of the intervenors, if any. Those copies do not need to include copies of the complaint.

Intention to make submissions

(3) The Accessibility Commissioner must, no later than 15 days after receiving the notice, notify the Board whether or not the Commissioner intends to make submissions regarding the issue referred to in paragraph (1)(d).

Copy of the notice — Board

(4) The Board must give a copy of the Commissioner’s notice to each of the parties and each of the intervenors, if any.

14 (1) Subsection 21(1) of the Regulations is replaced by the following:

Time period

21 (1) If any of the following persons wishes to object on the ground that the complaint was not made within the period required under section 10, they must do so before the end of the period for exchanging information:

(2) The portion of subsection 21(2) of the French version of the Regulations before paragraph (a) is replaced by the following:

Forme et contenu de l’objection

(2) L’objection est soulevée par écrit et comporte les éléments suivants :

(3) Paragraphs 21(2)(a) and (b) of the Regulations are replaced by the following:

(4) Paragraphs 21(2)(c) and (d) of the French version of the Regulations are replaced by the following:

15 (1) Subsection 22(1) of the Regulations is replaced by the following:

Time period

22 (1) Within 10 days after the end of the period for exchanging information, the complainant must provide their allegations to

(2) Paragraphs 22(2)(a) and (b) of the Regulations are replaced by the following:

(3) Paragraph 22(2)(c) of the French version of the Regulations is replaced by the following:

16 Paragraphs 23(2)(a) and (b) of the Regulations are replaced by the following:

17 The heading before section 24 is replaced by the following:

Reply from the Respondent

18 (1) Subsection 24(1) of the Regulations is replaced by the following:

Deadline for reply

24 (1) Within 15 days after receiving the complainant’s allegations or amended allegations, the respondent must provide their reply to

(2) Paragraphs 24(2)(a) and (b) of the Regulations are replaced by the following:

(3) Paragraph 24(2)(c) of the French version of the Regulations is replaced by the following:

(4) Section 24 of the Regulations is amended by adding the following after subsection (2):

Failure to reply

(3) If the respondent does not file their reply within the time period specified in these Regulations, without any reasonable explanation, the Board may dispose of the matter without giving that party the notice referred to in section 28.

19 (1) Subsection 25(1) of the Regulations is replaced by the following:

Other parties may reply

25 (1) Within 10 days after receiving the respondent’s reply, any other party who wishes to participate in the hearing must provide their reply to

(2) Paragraphs 25(2)(a) and (b) of the Regulations are replaced by the following:

(3) Paragraph 25(2)(c) of the French version of the Regulations is replaced by the following:

20 (1) Paragraphs 26(2)(a) and (b) of the Regulations are replaced by the following:

(2) Paragraph 26(2)(c) of the French version of the Regulations is replaced by the following:

(3) Subsection 26(3) of the Regulations is replaced by the following:

Notice to other parties and intervenors

(3) On receiving the notice of withdrawal, the Board must give notice that the complaint has been withdrawn and the file closed to

21 Subsection 28(1) of the Regulations is replaced by the following:

Notice of hearing

28 (1) The Board must give notice of the date, time and place of the hearing to

22 Section 29 of the Regulations is replaced by the following:

Failure to appear

29 If a party, an intervenor or, if they are a participant, the Canadian Human Rights Commission or the Accessibility Commissioner does not appear at the hearing of a complaint or at any continuance of the hearing and the Board is satisfied that notice of the hearing was given to that party, intervenor or participant, the Board may proceed with the hearing and dispose of the complaint without further notice.

23 The English version of the Regulations is amended by replacing “his or her” with “their” in the following provisions:

Coming into Force

24 These Regulations come into force on the day on which they are registered.

REGULATORY IMPACT ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Issues

Portions of the Regulations relating to the matters arising before the Federal Public Sector Labour Relations and Employment Board (the Board) needed to be amended due to the coming into force of An Act to amend the Canada Labour code, the Parliamentary Employment and Staff Relations Act, the Public Service Labour Relations Act and the Income Tax Act (S.C. 2017, c. 12; Bill C-4), An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9; Bill C-7) and the Accessible Canada Act (S.C. 2019, c. 10; Bill C-81).

Background

The Board is an independent quasi-judicial statutory tribunal established by the Federal Public Sector Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365 [FPSLREBA]), which came into force on November 1, 2014. Under this Act, the Public Service Labour Relations Board (PSLRB) and the Public Service Staffing Tribunal (PSST) were merged to create the Board.

When the Board was created, certain modifications were made to the regulations that were previously in place in relation to the matters dealt with by the PSLRB and the PSST under several Acts, namely the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2 [FPSLRA]), the Public Service Employment Act (S.C. 2003, c. 22, ss. 12, 13 [PSEA]) and the Parliamentary Employment and Staff Relations Act (R.S.C., 1985, c. 33 [2nd Supp.]). However, over the course of the past seven years, it has become evident that some changes and updates to the Public Service Staffing Complaints Regulations (SOR/2006-6 [the Regulations]) are necessary for reasons related to modernization and housekeeping.

Furthermore, the Accessibility Canada Act came into force on June 21, 2019; therefore, changes are required to the Regulations to support its implementation.

Legislative authority

Regulatory amendment is the most efficient manner to address these legislative changes. The amendments will ensure greater certainty and transparency in understanding the operational processes of the Board.

Section 36 of the FPSLREBA and section 109 of the PSEA provide the Board the authority to make regulations.

Description of key amendments

The following consequential and housekeeping amendments to the Regulations are required to align the Regulations with the many legislative changes brought about by bills C-4, C-7, and C-81, as well as address editorial and procedural issues to render Board proceedings more efficient.

Status review

The Regulations were amended to include a new status review provision for “dormant cases” to enable the Board to better manage its caseload.

Definition

The definitions of “signature” and “contact information” have also been added to reflect the requirements of electronic filing.

The definition of “respondent” has been added to better distinguish between cases where the Public Service Commission is considered a respondent and those where it is an “other party,” as well as to simplify any references throughout the Regulations to deputy heads as responding parties.

Informal and expeditious proceeding

This guidance as to how the Board conducts its proceedings is extended to all staffing proceedings before it.

Extension of timelines

The Regulations are amended to give the Board more latitude to extend timelines.

Reply to allegations

A provision is added to address a respondent’s failure to reply to the allegations.

Accessible Canada Act

Consequential amendments to the Regulations are required to reflect the coming into force of the Accessible Canada Act, by adding provisions for providing notice to the Accessibility Commissioner.

Gender-neutral wording

Gender-neutral wording is adopted for the English version of the Regulations.

Housekeeping issues

Amendments are made to the English and French terminology to better align the English and French versions of the Regulations.

Rationale: Benefits and costs

The changes in the Regulations Amending the Public Service Staffing Complaints Regulations relate solely to the Board’s practices and procedures.

It is expected that the amendments will address concerns raised by stakeholders and assist parties and the Board in managing cases more efficiently.

The Regulations themselves have no impact on federal revenues or resource allocations. Employers, bargaining agents and employees will need to familiarize themselves with the changes in the Regulations but there is no negative impact in the amendments themselves.

One-for-one rule

The one-for-one rule does not apply to the Regulations, as they do not increase the administrative burden on business under the PSEA.

Consultation

Consultation with the Board’s stakeholders was initiated in March 2018 with a letter to major stakeholders to inform them of the need to make changes to the Regulations to reflect the changes brought about by the various bills, as well as housekeeping changes. A draft copy of the Regulations containing the proposed changes was sent to the stakeholders — employers and bargaining agents. They were given until June 2018 to provide their feedback.

The draft amendments to the Regulations relating to Bill C-81 were not submitted to the stakeholders, because that Accessibility Canada Act’s adoption was made after the end of the consultation period. The proposed changes to the Regulations are related to the notice to the Accessibility Commissioner, and they are very similar to the provisions related to the notice to be given to the Canadian Human Rights Commission, which already form part of the Regulations. Given the similarity between the notice to the Accessibility Commissioner and the existing notice to the Canadian Human Rights Commission, the Board considers that no consultation about these amendments is necessary.

Implementation, compliance and enforcement, and service standards

The Board will interpret and apply the Regulations in accordance with principles of statutory interpretation and the principles established in the PSEA, including

Coming into force

The Regulations Amending the Public Service Staffing Complaints Regulations come into force on the day that they are registered.

Contact

Jennifer Hamilton
Executive Director
Federal Public Sector Labour Relations and Employment Board Secretariat
Administrative Tribunals Support Service of Canada
C.D. Howe Building
240 Sparks Street
West Tower, 6th Floor
P.O. Box 1525, Station B
Ottawa, Ontario
K1P 5V2
Telephone: 613‑816‑4312
Email: Jennifer.Hamilton@tribunal.gc.ca