Claimant's Duty of Fair Representation Complaint Dismissed

Date: 202 60306 File : 561-02-49077 Citation: 2026 FPSLREB 21 Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act Before a panel of the Federal Public Sector Labour Relations and Employment Board [NAME] Complainant and [NAME] of Canada Respondent Indexed as [NAME] v. [NAME] of Canada In the matter of a complaint made under section 190 of the Federal Public Sector Labour Relations Act Before: [NAME], a panel of the Federal Public Sector Labour Relations and Employment Board For the Complainant: Herself For the Respondent : [redacted] ADVANCE \y 657 Decided on the basis of written submissions, filed February 23, March 7 and 25, and April 19, 2024, December 19, 2025, and January 16 and 19, 2026 .

REASONS FOR

DECISION [ 1 ] On February 15, 2024, [NAME] (“the complainant”) made a duty-of-fair-representation (DFR) complaint against the [NAME] of Canada ([NAME] or “the bargaining agent”). The essence of her complaint was that the bargaining agent had neglected its duty to her by failing to diligently and effectively carry through with two grievances that she filed about accommodation for a medical condition and family status discrimination, respectively. [ 2 ] For the facts and on the reasons set out in this decision, I have determined that the complaint can be decided pursuant to s. 22 of the Federal Public Sector Labour Relations and Employment Board Act , S.C. 2013, c. 40, s. 365, on the basis of the materials and submissions filed by the parties (see also [NAME] v. [COMPANY] of Foreign Service Officers , 2023 FPSLREB 3 at paras. 70 to 74). [ 3 ] I have also decided that a hearing that had been scheduled for February 18 to 20, 2026, can be cancelled (and so advised the parties). Having made that decision, I proceeded to consider the materials and submissions and reached the conclusion that the complaint should be dismissed.

I. The complaint [ 4 ] [NAME] is a steward working for the Canadian Coast Guard. [ 5 ] On February 15, 2024, [NAME] made an unfair-labour-practice complaint against the bargaining agent , alleging that it had failed its duty of good-faith representation to her. [ 6 ] I have set out as follows in full the details of her complaint: I currently have two grievances filed.

1. Medical accommodation, 2. Family Status against [NAME] was heard at the second level on June 21, 2022. Which I was granted a form of accommodation based on my medical needs [NAME] however denied me any of my leave balances I was made to use hence that one going to third level. Family status went as well as that was denied altogether. I did everything my union has asked of me. Labor relations office [NAME] contacted me in October 2022 to say he was going to be representing my cases. I had reached out the end of November and had no response. January 2023 I emailed and he responded saying there was a termination grievance that took priority over mine. End of March tried reaching again to no response. June 2023 I spoke with [NAME] on the phone and he asked if i had been fired, how many hours of work am I currently working etc… He said in order for him to help me I had to be fired, which made no sense to me as my union is suppose to help me. I followed up with an email a couple of weeks later stating how dissatisfied I was with our previous conversation via phone and if he could not help me to please provide me with someone who could. The next day he called me not at all impressed and said he doesn’t like being threatened with Duty to Fair Representation and he is going to be in talks with HR to secure a Final Level Hearing date. Fast forward a couple of weeks later we are now in July 2023 and he reached out asking me to file another first level grievance based on Family status and he could not answer or supply any answers as to why I was doing it all over again - his only response was this grievance is asking for the permanent position. Still not making since I spoke to a few union reps and they could not answer and finally I reached out and had a teams call with [NAME] and [NAME]. I followed up via email to [NAME] asking for another meeting as he had to cut our previous one short as he had an appointment he had to get too and I still had questions which was unanswered. Early September we had the meeting and late September I followed up asking for another meeting and had asked questions as well, with no response from [NAME]. The end of October I asked for an update on my file from [NAME] and he never did respond. I never heard anything until mid January from [NAME] and it was only because there has been new developments in my current position and he was asked by my local president to call me. We where in talks back and forth and he even sent me an email asking me be prepared to answer the following questions at the Final Level Hearing about my Family status and then emailed asking for signed transmittals which I sent. The emailed asking if I had proof that management signed transmittal and if I did could I send it to him. I have my signed document that went to my union rep [NAME] who forwarded and email to me sending it to management asking for them to sign and send back to him. I spoke with [NAME] and he confirmed everything was signed and sent to [NAME]. [NAME] is asking for all of it again? I am highly frustrated at this point and did send an email to [NAME] and [NAME] followed up with me to say that [NAME] never did receive the signed transmittal and that is why I was asked to file another first level grievance on Family Status. I was never made aware or knew that this was the reason and it never got conveyed to me until Feb 02,2024. [NAME] have been highly negligent in my case. [ Sic throughout] [ 7 ] By way of remedy, the complainant sought an order that the bargaining agent do the following: “… proceed with my grievance [and] [ t]he employer allows the grievance to proceed through the grievance procedure.” A. The bargaining agent’s first reply [ 8 ] The bargaining agent replied to the complaint on March 7, 2024. It set out a history of its handling of the medical-condition and family status grievances as follows: · The Complainant filed two grievances on the topics of [NAME] status accommodation, both dated September 28, 2021. · The medical accommodation grievance (number 38887) and [ sic ] is booked for a final level presentation on March 18, 2024, where [NAME] will provide representation. · The original grievance regarding family status was not transmitted to [ sic ] final level, therefore the [NAME] asked [NAME] to file a new family status grievance as the issue is ongoing. The new family status grievance (number 38995) was filed in 2023 and it is presently at the second level with [NAME]. · On February 15, 2024, the Complainant submitted this complaint alleging that the Union has failed in its duty of fair representation. · As corrective action, the Complainant stated on Form 16: “ The union to proceed with my grievance. The employer allows the grievance to proceed through the grievance procedure.” · Accordingly, it is clear that this Complaint is premature because the grievances remain live. There was no refusal to represent the member. [ 9 ] The bargaining agent then set out the law respecting a union’s DFR and what must be demonstrated to establish a breach of that duty. It submitted that the facts did not support a DFR complaint. In so submitting the onus of presenting some evidence in support of the DFR allegation shifted to the complainant (see [NAME] at para. 74). B. The complainant’s response [ 10 ] The complainant provided a 23-page response on March 25, 2024. [ 11 ] She acknowledged that in normal course, a DFR complaint might be premature before the final processing of a grievance. She said that her complaint was different because it was directed at what she said was the Department of Fisheries and Oceans’ (“the employer”) failure to acknowledge the second family status grievance. [ 12 ] In essence, this is what appears to have happened. A family status grievance (numbered 38995) was filed on September 28, 2021. Through some adventure, it was not transmitted to the third level. A second family status grievance (numbered 24124), identical to the first, was filed. The complainant suggested that the filing of the second grievance appeared to be “… an attempt of the union to correct its failure to transmit the first grievance to the third level pursuant to …” the collective agreement. [ 13 ] The complainant went on to say that her understanding was that the employer “has not acknowledged the second grievance.” That in turn led to her concern as follows about the lack of acknowledgment: … … is likely due to the fact that the grievance was made beyond the timelines allowed by the Collective Agreement.

Accordingly, although the union has sought to engage the grievance procedure there does not appear to be any likelihood that the grievance will or can be determined on its merits based upon procedural grounds.… … [ 14 ] In effect, as I read her submission, the second grievance would likely be dismissed on procedural grounds ( i.e., timeliness) and not on the merits. That being the case, her complaint was not in fact premature. [ 15 ] She then attached correspondence between her and the bargaining agent to demonstrate that she had “… received mixed messaging at best, and incorrect information at worst, from the Union on the handling of the two Family Status grievances.” C. The bargaining agent’s second reply [ 16 ] The bargaining agent filed a second reply, on April 19, 2024. [ 17 ] The bargaining agent acknowledged that there had been a problem with the handling of the family status grievance, as noted as follows in an email dated February 2, 2024: … - Our office received your DTA - Family status grievance file on Sept. 28th, 2021 , which was heard at step 2 and responded to on Jul 13th, 2022. However, the file was not transmitted to step 3, and you were requested to file another grievance. That grievance was filed in 2023 and was heard at step 1 and transmitted to step 2 where it now resides with your RVP, who will be contacting you shortly, if he has not already, to schedule a hearing. - Once your second grievance is heard at step 2, if not resolve [ sic ] it should be transmitted to our office for step 3, where it will be handled appropriately. … [ 18 ] In short, the family status grievance remained live. The fact that its representation “… may not have been perfect, representatives at all levels acted in good faith, not arbitrarily, and without discriminating against the Complainant.” [ 19 ] It concluded by submitting that the DFR complaint was premature because the family status grievance remained a live issue that had yet to be resolved.

II. The scheduling of a mediation and, subsequently, of a hearing [ 20 ] On April 11, 2025, the Federal Public Sector Labour Relations and Employment Board’s (“the Board”) [COMPANY] scheduled a mediation for July 17, 2025. [ 21 ] However, in an exchange of emails dated July 16, 2025, it became apparent that the mediation scheduled for the next day was cancelled. [ 22 ] Accordingly, on August 13, 2025, the complaint was scheduled for a hearing by videoconference from February 18 to 20, 2026. [ 23 ] I pause to note that nothing in the file materials indicates that the medical-condition and family status grievances had been settled in July 2025. That information came to light only after the parties responded to questions that I posed to them in January 2026. I will mention my concern about this late notice at the end of these reasons.

III. Questions posed to the parties [ 24 ] I was assigned the file for the purposes of conducting the hearing. On or about December 10, 2025, I caused the following correspondence to be sent to the parties: … The [NAME] assigned to hear this matter on Feb 18-20, 2026 has reviewed the original complaint; the Union’s response; the complainant’s reply; and the Union’s further response (the last being April 19, 2024). He also notes that the scheduled mediation was cancelled on July 16, 2025, with the complaint then being scheduled for the February hearing. The [NAME] seeks an answer from the parties as to the following questions:

1. What is the current status of the family status grievance (both original and second) and the medical condition grievance? 2. Are there any new facts in addition to those set out in the complainant’s complaint or her reply March 25, 2024, or the Union’s two responses to the complaint (March 7 and April 19, 2024)? 3. Is there any reason why the [NAME] could not decide the matter on the basis of the written material already in the file? The [NAME] seeks a response from both the complainant and the respondent by Friday, December 19, 2025. … [ 25 ] On December 19, 2025, the complainant responded as follows: … 1. What is the current status of the family status grievance (both original and second) and the medical condition grievance? Both the family status grievances (original and second) and the medical condition grievance have concluded. The union complaint itself has not yet been substantively addressed.

2. Are there any new facts in addition to those set out in the complainant’s complaint or her reply of March 25, 2024, or the Union’s responses of March 7 and April 19, 2024? There are no new facts beyond what is already on the record. For clarity, the following procedural steps occurred: · On March 25, 2024, I submitted my reply along with supporting documentation. · On March 26, 2024, I received confirmation that my submission was received. · On March 26, 2024, [NAME] requested an extension of time for the respondent to provide its reply, extending the deadline to April 19, 2024. · On March 27, 2024, I advised that I did not object to the requested extension. · On April 19, 2024, the respondent submitted its reply. · On April 24, 2024, I received confirmation from the [NAME] acknowledging receipt of the respondent’s reply and advising that, as both parties had expressed openness to mediation, the matter had been referred to the Board’s Mediation and Dispute Resolution Service. No further submissions or factual developments have occurred since that time.

3. Is there any reason why the [NAME] could not decide the matter on the basis of the written material already in the file? I am not aware of any additional information being requested from me since the referral to mediation. Other than the cancelled mediation that was scheduled for July 2024, I have not been contacted for further clarification or submissions. I remain available should the Board require any additional information. … [ 26 ] On the same day, counsel for the bargaining agent replied to the questions posed to it as follows: … Regarding the third question, the Union’s position is that the [NAME] cannot decide the matter based on the submissions alone. There is relevant evidence that the Board needs to hear to decide the matter. As to questions 1 and 2, the current status of the grievances and new facts from the time of the parties’ submissions, we will require additional time to fully respond. Given that we are in the midst of the holiday season, we are requesting an extension to January 7, 2025 [ sic ] . … [ 27 ] The request for an extension of time to January 7, 2026, was granted. [ 28 ] When I turned to consider the matter, I determined that the complainant’s answer to the first question that I had posed was unclear. She did not explain what she meant when she said that the family status and medical-condition grievances had concluded. I was also uncertain as to what she meant by “[t]he union complaint”, or that it — whatever it was — had not yet been “substantively addressed.” [ 29 ] Because of that uncertainty, I addressed a second question to the parties on January 12, 2026, as follows: … 1. What were the conclusions of the family status grievances (original and second) and medication condition grievance? Were they granted or denied? And if the family status grievance was denied, was it denied because the first one had not been referred to the third level? 2. What is “the union complaint” that has not yet been addressed? Is it the current DFR complaint? … [ 30 ] The bargaining agent’s answer to the first question was that the medical-condition and family accommodation grievances had been settled and withdrawn on or about July 4, 2025 (with final confirmation of the terms of settlement having been reached on March 6, 2025). The complainant confirmed these settlements. She also clarified that “[t]he union complaint” that she had referred to was a reference to this DFR complaint and added the following about it: … … concerns the union’s handling of my family status grievances, including the failure to advance the original grievance, the direction to file a second grievance, and the resulting negative financial, emotional, and employment impacts on me. I believe that had the union represented me to the best of its ability, I would not have been struck off strength, would not have lost employment opportunities, and would not have suffered the financial and emotional harm I experienced due to the lack of an effective family status grievance being recognized by the employer. … [ 31 ] I turn now to this DFR complaint and the bargaining agent’s motion that it be dismissed. In so doing I am following the approach laid down in [NAME] and [NAME] v. [NAME] (Department of Western Economic Diversification) , 2023 FPSLREB 4 at paras. 58 to 66.

IV. Analysis and decision [ 32 ] As I observed in [NAME] v. [NAME] of Canada , 2025 FPSLREB 164, a bargaining agent must exercise its duty of representation in good faith, objectively and honestly. It must thoroughly analyze a grievance. In doing so, it is entitled to balance the grievor’s interests with those of its own and of its membership. It cannot act in an arbitrary, a discriminatory, a capricious, or a wrongful manner. It must act without serious negligence or hostility toward the grievor. [ 33 ] Having said that, it is also not for the Board to armchair quarterback tactical decisions that the bargaining agent may make when balancing those interests and demands. The DFR does not require the bargaining agent to be correct in its handling of the grievance, as long as it has represented the grievor carefully and without animus or discrimination. [ 34 ] When a complainant makes a DFR complaint, they have the burden of making out facts that support it. Mere dissatisfaction with the bargaining agent’s representation or its advice or decision as to how to handle a matter is not enough to support an allegation of unfair representation (see [NAME] v. [NAME] of Canada , 2018 FPSLREB 20 at para. 38). The complainant’s opinion — or speculations — as to the merits of a bargaining agent’s decisions is not enough to ground allegations of a breach of the duty of good faith (see [NAME] v. [NAME] of Canada , 2024 FPSLREB 100 at para. 30). [ 35 ] I also noted as follows in [NAME] the points to remember when considering a bargaining agent’s conduct and decisions: … [15] … one may also take notice of the fact that it often takes years to process and resolve a grievance in the federal public civil service. That should not be surprising, given its size and complexity. [16] Public service bargaining agents have to handle an enormous number of grievances involving complex legal and factual issues, all of which take time and resources.… … [ 36 ] The resulting delays processing grievances may be a source of disappointment or resentment for a grievor. But they are not — on their own — evidence of arbitrary, discriminatory, or bad-faith conduct. [ 37 ] With these observations in mind, it is clear that the complainant failed to meet her onus. Her perception that her grievance could or should have moved along more quickly or in a different way is not by itself evidence of bad faith or discriminatory or negligence by the bargaining agent. [ 38 ] Her complaint is further undermined by the fact that the family status and medical-condition grievances were in fact settled, with her consent, in July 2025. Three years between filing a grievance and its final resolution is not an inordinately long period in the history of an accommodation grievance of any kind. Her dissatisfaction with the bargaining agent’s conduct along the way does not negate the fact that she was prepared to consent to the final terms of the settlement that was reached in July 2025. [ 39 ] There is no evidence or allegation of bargaining agent conduct that was sufficient to negate her free will or to force her unwillingly into an imprudent or unconscionable settlement. There is nothing, in other words, to set the bargaining agent’s handling and settlement of her grievances as being so far outside the normal range as to raise a concern, from a DFR perspective. [ 40 ] I should say that I was disappointed by both parties’ failures to advise the Board in July 2025 that the family status and medical-condition grievances had been settled. How those grievances were handled was the basis of this DFR complaint. The fact that they were settled was material information that would clearly have been relevant to the Board’s assessment of the DFR complaint. It was not to be divulged only well after hearing dates were set and only in response to the Board’s questions. To so delay was a waste of the Board’s and parties’ time and resources. [ 41 ] For all of the above reasons, the Board makes the following order: (The Order appears on the next page)

V. Order [ 42 ] The complaint in Board file no. 561-02-49077 is dismissed. March 6, 2026. [NAME], a panel of the Federal Public Sector Labour Relations and Employment Board