Employer Can Object to Grievance Untimeliness Despite Late Final-Level Decision

Date: 202 60324 File : 566-02-52557 Citation: 2026 FPSLREB 23 Federal [NAME] Act and Federal Public Sector Labour Relations Act Before a panel of the Federal [NAME] ( Department of Public Works and Government Services) Respondent Indexed as [NAME] v. Deputy Head (Department of Public Works and Government Services) In the matter of an individual grievance referred to adjudication Before: [NAME], a panel of the Federal [NAME] For [NAME]: [NAME], representative For the Respondent: [redacted] Decided on the basis of written submissions, filed July 25 and 29 and October 23, 2025, and January 26, 2026 .

REASONS FOR

DECISION I. Overview [ 1 ] The issue in this decision is whether an employer may object to the timeliness of this grievance despite providing its final-level decision five days after [NAME] referred his grievance to adjudication. [ 2 ] This case turns on the interpretation of s. 95 of the Federal Public Sector Labour Relations Regulations (SOR/2005-79; “the Regulations ”). That provision stipulates that an employer may object to the timeliness of a grievance only if it objects in the decision it makes at the level that the time limit was not met and all subsequent levels of the grievance process. The issue is whether a late decision at the final level is still a decision for the purposes of s. 95 of the Regulations . There are competing decisions of the Federal [NAME] and its predecessors (“the Board”) that come to different conclusions about this issue. [ 3 ] I have concluded that an employer may object to the timeliness of a grievance despite making its final-level decision late when 1) the employer has also objected to the timeliness of the grievance at earlier levels of the grievance process, and 2) the employer has filed an objection and made its final-level decision within 30 days of being notified about the reference to adjudication. I have reached this conclusion after considering the text, context, and purpose of s. 95 of the Regulations . [ 4 ] [NAME] admits that his grievance is late and has not asked for an extension of time to present it, I must allow the employer’s preliminary objection and deny his grievance. My detailed reasons follow.

II. The nature of the grievance and [NAME]’s terms of employment [ 5 ] On October 6, 2021, the [NAME] enacted the Policy on COVID-19 Vaccination for the Core Public Administration Including the Royal Canadian Mounted Police (“the Vaccine Policy ”). The Vaccine Policy required all employees in the core public administration to be fully vaccinated against COVID-19. [NAME] did not comply with that policy and was placed on leave without pay on November 15, 2021. He resigned effective December 31, 2021. [ 6 ] [NAME] is not represented by his bargaining agent in this grievance. However, while he was employed, he was in what used to be the Computer Systems bargaining unit represented by the Professional Institute of the Public Service of Canada. The relevant collective agreement (bearing an expiry date of December 21, 2021) set out the relevant timelines for grievances as follows: · grievors have 25 days (excluding Saturdays, Sundays, and designated holidays) to present a grievance after the date on which they are notified or become aware of the action giving rise to the grievance (clauses 33.12 and 33.17); · there are three steps to the grievance process (clause 33.09); and · the employer “shall normally reply” to a grievance at each step within 10 working days, except for the final step, at which the employer has 20 working days to respond (clause 33.14).

III. Chronology of the grievance [ 7 ] The chronology of this grievance is not in dispute. [ 8 ] On March 27, 2025, [NAME] presented a grievance, alleging that he was constructively dismissed when he resigned effective December 31, 2021. [ 9 ] The employer dismissed that grievance at the first level on April 2, 2025. The employer dismissed it in part because it was presented late. [ 10 ] [NAME] referred his grievance to the next level (which the parties, for some reason, call the third level) on April 15, 2025. The employer dismissed it on April 29, 2025, again in part because the grievance was presented late. [ 11 ] [NAME] referred his grievance to the final level on May 13, 2025. [ 12 ] [NAME] referred his grievance to adjudication on June 13, 2025 (which was more than 20 working days from the date that he referred it to the final level of the grievance process). He did not serve the employer with a copy of this reference to adjudication because he did not have to. [NAME] referred his grievance to adjudication under s. 209(1)(b) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; FPSLRA ). [ 13 ] The employer dismissed his grievance at the final level by a letter signed on June 17, 2025, and sent to [NAME] on June 18, 2025. The employer dismissed it again in part because the grievance was presented late. [ 14 ] The Board’s registry served the employer with a copy of this reference to adjudication on July 2, 2025. [ 15 ] [NAME] wrote to the Board’s registry on July 7, 2025, to amend his reference to adjudication, so that his grievance was being referred to adjudication under s. 209(1)(c)(i) of the FPSLRA instead of s. 209(1)(b). [ 16 ] On July 25, 2025, the employer objected to the grievance being referred to adjudication on two grounds: that it falls outside the jurisdiction of the Board, and that the grievance was untimely. This decision deals only with the second objection. [ 17 ] In short, the employer’s final-level decision was made after [NAME] had referred his grievance to adjudication but before the employer knew that he had done so.

IV. Analysis of the issue — whether the employer can no longer argue that the grievance was untimely A. The rule set out in the Regulations [ 18 ] [NAME] argues that the employer cannot object to the untimeliness of his grievance because it made its final-level decision beyond the 20-working-day period for it to do so. This issue is governed by the Regulations . Specifically, ss. 63 and 95 read as follows: Rejection for failure to meet a deadline Rejet pour non-respect d’un délai 63 A grievance may be rejected for the reason that the time limit prescribed in this Part for the presentation of the grievance at a lower level has not been met, only if the grievance was rejected at the lower level for that reason. 63 Le grief ne peut être rejeté pour non-respect du délai de présentation à un palier inférieur que s’il a été rejeté au palier inférieur pour cette raison. … […] Deadline for raising objections Délai pour soulever une objection 95 (1) A party may, no later than 30 days after being provided with a copy of the notice of the reference to adjudication, 95 (1) Toute partie peut, au plus tard trente jours après avoir reçu copie de l’avis de renvoi du grief à l’arbitrage : (a) raise an objection on the grounds that the time limit prescribed in this Part or provided for in a collective agreement for the presentation of a grievance at a level of the grievance process has not been met; or a) soulever une objection au motif que le délai prévu par la présente partie ou par une convention collective pour la présentation d’un grief à un palier de la procédure applicable au grief n’a pas été respecté; (b) raise an objection on the grounds that the time limit prescribed in this Part or provided for in a collective agreement for the reference to adjudication has not been met. b) soulever une objection au motif que le délai prévu par la présente partie ou par une convention collective pour le renvoi du grief à l’arbitrage n’a pas été respecté. Objection may not be raised Circonstance où une objection ne peut être soulevée (2) The objection referred to in paragraph (1)(a) may be raised only if the grievance was rejected at the level at which the time limit was not met and at all subsequent levels of the grievance process for that reason. (2) L’objection visée à l’alinéa (1)a) ne peut être soulevée que si le grief a été rejeté au palier pour lequel le délai n’a pas été respecté et à tout palier subséquent de la procédure applicable au grief en raison de ce non-respect. … […] [ 19 ] The issue in this case is whether the employer’s final-level decision meets the requirement of s. 95(2) of the Regulations even though it was made after [NAME] referred his grievance to adjudication. B. Previous Board decisions disagree about this issue [ 20 ] The Board has reached different conclusions about this issue. [ 21 ] In [NAME] v. [NAME] ([NAME]) , 2010 [NAME] 114, the Board concluded that the employer could maintain an objection to timeliness in similar circumstances. The Board wrote as follows in that case: … 16 The collective agreement sets out a guideline for the time frame for the employer’s decision or its reply to a grievance at each level. Unlike the time limit for filing a grievance, that time limit is not mandatory. The relevant clause states that the employer “… shall normally reply … at the final level … within … 30 days… ” It is clear that a [NAME] does not have to wait for the employer’s decision before sending his or her grievance to the next level — in this case, referral to adjudication. However, the  Regulations or the collective agreement do not prevent the employer from deciding a grievance after the “normal” time frame. The only restriction on the employer is that it must raise an objection to timeliness at each level of the grievance process and also within 30 days of receiving a copy of the referral to adjudication. 17 The employer was late in issuing its final—level decision. However, it raised timeliness in that decision, which was issued after the referral to adjudication (on June 18, 2010). The employer had until July 2, 2010 to provide copies of the decisions at each level and to raise any objections to timeliness. The employer sent the decisions at the first and second levels on June 17, 2010. It sent its final—level decision to the [NAME] on June 25, 2010. It raised its objection to timeliness on June 30, 2010. It is important to note that all this documentation was sent to the [NAME] before the 30-day time limit specified in the Regulations (July 2, 2010). 18 This is not a situation in which the employer either failed to issue a decision at a level of the grievance process or failed to meet the filing requirements of the Regulations , as in [NAME]. v. [NAME] ([NAME]) , 2007 [NAME]

58 . Although the employer could have been more diligent in issuing its final—level decision, it did issue that decision. As a result, timeliness has been raised at each level of the grievance process. 19 The employer has met its obligations under section 95 of the Regulations .… … [Emphasis added] [ 22 ] The Board came to a different result in [NAME] v. Deputy Head ([NAME]) , 2016 PSLREB 21, in which it distinguished [NAME] and found as follows: … 34 Besides, even if it had been established that [NAME] consented to waiving a first-level response, the fact that the respondent did not file a final-level response within the 20-day period following the transmittal and its reception of the four grievances (2, 3, 4 and 5) also constitutes a “non-reply” rejection of the grievances, which again means that they were not rejected as untimely. It does not matter if the final-level responses, which were issued weeks and months later, asserted that the grievances were filed late. Subsection 95(2) of the Regulations is clear. The respondent’s responses at every level must have rejected the grievances for the reason of timeliness for it to raise the issue as an objection. Having failed to, it was barred from raising the objection (see [NAME] at para 24). 35   I recognize that this question about whether a timeliness objection can validly be raised when the final level response is issued late was addressed somewhat differently in [NAME] v. [NAME] ([NAME]) , 2010 [NAME] 114. Neither party referred to this decision in their submissions but I find anyway that it can be distinguished from the present case. In [NAME] , there was no dispute that the grievance was untimely. The employer invoked the untimeliness of the grievance in its final level response, but it was issued after [NAME] had referred the grievance for adjudication. The adjudicator held that despite being late in issuing the final level response, the employer had met its obligations under section 95 of the Regulations , holding that although the employer could have been more diligent in issuing its final level response, “it did issue the decision.” 36 While I am not necessarily bound by this finding, in my view, there is an important distinction to be drawn between the two cases. In [NAME] , the employer issued its final level response only seven days after the grievance was referred to adjudication, and more importantly, five days before it sent its timeliness objection to the [NAME]. 37 In the present case, the respondent issued its final level responses to grievances 2, 3 and 5, between five and six months after the response periods had expired and the grievances had been referred to adjudication, and at least four months after the respondent had sent its timeliness objection to the [NAME]. The final level response to grievance 4 was issued over one month after its due date. 38 This distinction from [NAME] is very important, especially with respect to grievances 2, 3 and 5. The employer should simply not be allowed to correct its omission so many months after the referral to adjudication and, more importantly, after the respondent had already presented to the [NAME] its objection to the grievances’ timeliness, an objection that would otherwise have had to be dismissed because the grievances had not been rejected for timeliness in a final level response. To enable the respondent to rectify this omission unilaterally several months after making its objection to the [NAME] would be highly prejudicial and unfair to [NAME]. … [ 23 ] In essence, [NAME] distinguishes [NAME] because of the length of time that the employer waited to issue a final-level response. In [NAME] , unlike in [NAME] , the employer delayed making its final-level decision for months. Also importantly, in [NAME] , the employer made its final-level decision before the 30-day period set out in s. 95(1) of the Regulations to repeat its objection expired, while in [NAME] , that 30-day period had expired. [ 24 ] Additionally, these paragraphs in [NAME] are, technically, obiter . The employer never issued a decision at the first level for grievances 2, 3, 4, and 5 in that case because it mistakenly thought that [NAME] had waived those levels, meaning that it failed to object to the timeliness of the grievances at each level of the grievance process (see paragraphs 28 and 31). [ 25 ] The Board addressed this question again in [NAME] v. [NAME] ([NAME]) , 2020 FPSLREB 4, stating this: … [ 41 ] The jurisprudence, as established by the Board’s predecessors, has addressed this issue in [NAME] , and [NAME] . [NAME] held that s. 95 of the Regulations stands for the proposition that the employer may raise an objection about the failure to present or transmit a grievance within a time limit (as agreed in a collective agreement or under the Regulations ) only if it was rejected for that reason at the first opportunity and at all subsequent levels of the applicable grievance procedure. [NAME] and [NAME] follow the reasoning in [NAME] . [ 42 ] The most recent decision interpreting the issue of an objection to jurisdiction arising out of a failure to transmit a grievance within the time limits imposed by either the Regulations or a collective agreement is [NAME] v. [NAME] ([NAME]) , 2019 FPSLREB 66, which upholds the earlier jurisprudence. [ 43 ] Based on the facts, the grievance was transmitted to the final level of the grievance procedure on or about November 2, 2012. While that was clearly not within the time limits established by the parties in the collective agreement, nonetheless, the employer should have replied to it within the appropriate time frame. In doing so, it should also have objected to the untimeliness of the transmittal from the second to the final level of the grievance procedure. Based on the wording of the collective agreement, the deadline for the employer’s response would have been December 17, 2012. [ 44 ] While the employer did eventually deliver a final-level grievance response in which it did raise the untimeliness of the transmittal of the grievance from the second to the third level, it did so only well after the time frame for a response at the final level had expired and [NAME] had referred the grievance to the [NAME] for adjudication. In fact, the employer’s final-level response was dated July 11, 2013, which was not only well past the time frame within which it should have delivered its response but also after the grievance had been referred to the [NAME] for adjudication and after the following had taken place: · the employer had objected, on February 18, 2013, to the Board’s jurisdiction to hear the grievance on the basis of the untimeliness of [NAME] referring it to the [NAME] ; · the bargaining agent, on behalf of [NAME], responded to that objection on February 23, 2013; and · the employer replied to the bargaining agent’s response on March 8, 2013. … [ 26 ] The Board did not address [NAME] in that case. [ 27 ] The Board addressed this question again in [NAME] v. [NAME] ([NAME]) , 2020 FPSLREB 87. It used a different reasoning from the cases I have just discussed, concluding that a late final-level decision is a nullity and stating: … [38] As indicated in that section, the employer had to make a decision on the grievances at the final level of the grievance process within 20 days of them being filed at that level. Yet, in the context of the grievance process, a failure to make a decision within the applicable deadline is interpreted as a decision to dismiss the grievance (see [NAME] v. [NAME] ([NAME]) , 2007 [NAME] 58 at paras. 22 and 23 , and [NAME] v. [NAME] ([NAME]) , 2020 FPSLREB 4 at para. 46 ). A dismissal in the form of a “non reply”, as described in  [NAME] , means that the employer dismissed the grievances without grounds . In other words, the employer did not dismiss the grievances at the final level on the grounds that they were untimely at the first level . [ 39 ] In summary, as for the two grievances, the employer did not dismiss them at the first level of the grievance process because they were untimely at that level. In addition, s. 63 of the Regulations prohibited it from dismissing them for that reason at the second and final levels. Finally, its failure to decide the grievances within the applicable deadlines at the final level represented a dismissal of them without grounds. [ 40 ] I note that it does not matter if the employer’s “decisions” at the final level of the grievance process, approximately one month after both grievances were referred to adjudication, i.e., December 20, 2019, for the grievance in file 566-02-41224, and January 14, 2020, for the grievance in file 566-02-41303, claimed to dismiss them because they were filed late at the first level. Those decisions are null and void since, in addition to not meeting the requirements of s. 63 of the Regulations , the employer’s failure to make decisions at that level by the required deadlines represented a dismissal of the grievances without grounds. The employer should have been aware of the lack of legal effect of its alleged “decisions” as this is not the first time that the [NAME] has experienced similar difficulties (see [NAME] ). Therefore, through a unilateral act that did not comply with either the letter or the spirit of the Regulations , the employer could not cause [NAME] to lose the right to have his grievances adjudicated. … [ 28 ] As with [NAME] , the Board’s remarks about a late final-level decision are obiter because the employer did not object to the untimeliness of the grievances at the first level, and the Board dismissed all future objections to timeliness on the basis of s. 63 of the Regulations . [ 29 ] The Board addressed this question again in [NAME] v. [NAME] ([NAME]) , 2025 FPSLREB 94. The Board in that case referred to [NAME] in the list of cases relied on by the employer but did not discuss it. On the issue raised in this case, it stated as follows: … [ 46 ] However, the situation is different with respect to the employer rejecting the grievances at the second level based on timeliness. It also differs with respect to what happened at the final level; that is, at the NJC level. In fact, for the reasons that follow, I conclude that the employer failed its obligation to report the timeliness issue at those two levels. [ 47 ] Certainly, the employer rejected the grievances at the second level on the basis that they had been filed late. However, according to the time limits set by the grievance process that applies to this case, the employer should normally have replied to the grievances in September 2019, but it did so only a year later, on September 3, 2020. But its one-year late reply amounts to it having rejected the grievances without providing reasons; that is, without raising the time limit issue. In that sense, the reply dated September 3, 2020, is null and void (on that point, see [NAME] , at para. 40; and [NAME] , at para. 46). In addition, even if the context differed, in Canada v. [NAME] , 2007 FCA 152, the Federal Court of Appeal stated the following at paragraph 8: [8] This formal demand went unanswered and, following numerous interlocutory proceedings, which need not be elaborated on, Mr. Justice Beaudry of the Federal Court ruled that the formal demand dated August 20, 1999, was to be treated as a third-level grievance and that the failure to respond to it was equivalent to its dismissal by the [NAME] . … [ 48 ] Even if I were unaware that the employer did not respect the grievance process at the second level by replying one year late and therefore did not raise the time limit issue, I would still have rejected its objection based on what happened at the third level. [ 49 ] First, subsection 15.1.13 of the NJC’s grievance process states that a timeliness objection “… must be received within 30 working days from the date that the grievance was received by the General Secretary at the final level.” However, the employer did not explicitly raise its objection with the NJC, and it should have. It was content to transmit, without explanation, the documentation relevant to the grievances, including the first-level replies and the grievances’ transmittal forms at the second and third levels. [ 50 ] Then, the NJC too wanted to raise a timeliness objection. Doing so was certainly not its role. It asked the bargaining agent to provide its position on the objection, which it decided not to do, on the basis that the employer had not raised an objection with the NJC. And on April 17, 2020, an NJC officer replied to the bargaining agent that the employer did not raise the timeliness objection at the final level. On April 20, 2020, in response to the bargaining agent, she wrote that the bargaining agent was right and that it was up to the employer to raise an objection. Then, on May 5, 2020, the bargaining agent informed the NJC officer that it would reply to the timeliness objection if the employer raised it before the hearing. [ 51 ] Yet, on March 5, 2021, the NJC rejected the grievances on the basis that they were filed late. I agree with the bargaining agent that there was a “[translation] serious breach of procedural fairness”. There is no doubt in my mind that in all fairness, the NJC should have given the bargaining agent the opportunity to make submissions on the time limit issue before the NJC made a decision on the issue. Moreover, the bargaining agent stated its interest in filing such arguments were the timeliness objection raised. If the NJC believed that it had done so, it should have explicitly informed the bargaining agent and offered to provide its position. … [ 53 ] I conclude that the employer did not meet the obligations that the Regulations impose on it and that it could not raise an objection at ad judication that the grievances are untimely. The very late second-level reply amounted to being baseless, which implies that the timeliness issue was not raised. In addition, on the facts, the employer did not raise the issue as it should have at the final level, which is that of the NJC. … [ 30 ] At my invitation, the parties made submissions about these four cases. [ 31 ] [NAME] relied on [NAME] and did not discuss the other cases. [NAME] argued that the 20-working-day time limit is more than enough time for the employer to respond to a grievance, the employer did not ask for an extension of time to respond to the grievance from [NAME] or the Board, the employer has not explained why its final-level decision was late, and it had already denied the grievance on the basis of timeliness at earlier levels, so it was aware of the requirement to do so at the final level as well. [NAME] also argues that the Board should not show flexibility to the employer since the employer is the one who seeks to have the grievance dismissed on procedural grounds, namely, its untimeliness. [ 32 ] The employer argued that the present case is factually similar to [NAME] and distinguishable from [NAME] , and [NAME] in that the final-level decision was made shortly after the grievance was referred to adjudication and before the employer knew that it had been referred to adjudication. The employer argued that [NAME]’s submission has the effect of reading words into ss. 63 and 95(2) of the Regulations — namely, reading in a requirement that the grievance be rejected “in a timely manner”. The employer also relies on the wording of the collective agreement, which states that it “shall normally reply to a grievance” [emphasis added] within the relevant period and that the use of the word “normally” implies a flexible approach to these timelines. Finally, the employer submits that the [NAME] , and [NAME] cases were wrongly decided because they misinterpreted an earlier Board decision (namely, [NAME] v. [NAME] ([NAME]),  2007 [NAME] 58). C. Analytic path to resolve this issue 1. This case should be determined using the tools of statutory interpretation [ 33 ] As I said earlier, the Board has come to different conclusions about the timeliness issue raised in this grievance. [ 34 ] I agree with the employer that the facts in this case are more similar to [NAME] than to the other Board cases. Those facts are that the employer made its final-level decision shortly after [NAME] referred his grievance to adjudication and before the 30-day period to file an objection expired. In fact, it made its final-level grievance decision before it knew that [NAME] had referred the grievance to adjudication. [ 35 ] I also note that the Board in [NAME] found that the timing of the employer’s final-level decision was an important factor distinguishing that case from [NAME] . As I quoted earlier, at paragraph 36 of [NAME] , the Board referred to the timing of the final-level decision (which was months late and made after the employer tried to object to the timeliness of the grievance before the Board) as an “important distinction” between that case and [NAME] . [ 36 ] I also explained earlier why the Board’s rulings on this issue in [NAME] and [NAME] are technically obiter because the Board dismissed the employer’s objection on other grounds. [ 37 ] Despite this, I am not prepared to simply wave away those cases simply because parts of them are obiter, or factually distinguishable. These Board decisions contradict each other; in essence, I must choose between them. [ 38 ] As a broader point, the doctrine of stare decisis does not absolutely require the Board to follow its own precedents. It may depart from earlier decisions, so long as it explains or justifies that departure (see Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 at paras. 112 and 129 to 131); however, “… a Board member should deviate from previous decisions only if he or she believes that they are ill-founded. Certainty, uniformity, stability, and predictability are essential elements in fostering a positive labour relations climate” (from [NAME] v. Canada Revenue Agency , 2025 FPSLREB 13 at para. 74). [ 39 ] However, in this case, I cannot simply rely on stare decisis because of the discord between these previous Board decisions. I must choose between them. [ 40 ] To resolve this issue, I have returned to first principles — namely, statutory interpretation. [ 41 ] This case requires me to interpret s. 95(2) of the Regulations . Regulations must be interpreted in accordance with the normal rules of statutory interpretation (see [NAME] v. [NAME] , 2013 SCC 66 at para. 36). Statutory interpretation involves the consideration of the text, context, and purpose of the provision in question (see, for example, [NAME] v. Canada (National Revenue) , 2025 SCC 13 at paras. 43 to 46). These three elements are not considered in isolation; rather, they feed into each other. For example, an important contextual tool consists of provisions set out elsewhere in the statutory instrument being interpreted. Additionally, the purpose of that instrument is typically found within its text. The purpose of a regulation can be found within that regulation and in the enabling legislation granting the authority to make the regulation in question (see [NAME] , at para. 36). Finally, statutory interpretation may require attention to an “important legal context” that informs that statute (from Ontario (Attorney General) v. Ontario (Information and Privacy Commissioner) , 2024 SCC 4 at para. 24).

2. The plain meaning of the text of s. 95(2) is unhelpful [ 42 ] To begin, the plain meaning of the text of s. 95(2) is not very helpful in resolving this issue. It states that an objection to timeliness “… may be raised only if the grievance was rejected at the level at which the time limit was not met and at all subsequent levels of the grievance process for that reason.” It does not say, one way or the other, whether a grievance decision at that level must also have been timely.

3. A late grievance decision is not a nullity [ 43 ] The Board’s decisions in [NAME] , and [NAME] treated the text of s. 95(2) as dispositive because they concluded that a late grievance decision is a nullity. I disagree. [ 44 ] The Board in [NAME] and [NAME] did not say why it concluded that a late decision is a nullity. In both cases, the Board referred to [NAME] in support of that finding. However, [NAME] involved a very different situation. In [NAME] , the employer’s representative rejected the grievance at the first level “because it is beyond my authority.” The Board concluded that this was not a rejection on the basis of timeliness, as required in s. 95(2) of the Regulations , and that it could not ignore or “discount” (as it said at paragraph 22) the first-level decision. [NAME] does not, itself, state that the absence of a decision is a nullity. [ 45 ] In [NAME] , the Board relied on Canada v. [NAME] , 2007 FCA 152 (which the Board also cited in [NAME] ), and found that that case stands for the proposition that a late decision is a nullity. [NAME] does not stand for that proposition. [ 46 ] [NAME] had a tortured procedural history that is necessary to summarize to understand its result. In [NAME] v. Canada (C.A.) , 1994 CanLII 3475 (FCA), the Federal Court of Appeal concluded that members of the Royal Canadian Mounted Police (RCMP) as well as members of the [NAME] ([NAME]) who came from the RCMP were entitled to the bilingualism bonus but that the [NAME] had the power to terminate that bonus and did so for non-unionized employees, on March 5, 1985. A group of [NAME] employees made a demand to be paid the bilingualism bonus on August 20, 1999, and then filed a civil action in Federal Court on May 10, 2000, seeking the payment of that bonus. The Federal Court stayed that action in [NAME] v. Canada , 2004 FC 1221, stating that it considered the 1999 demand to be a grievance. [ADDRESS] stated that “I infer from the fact that the Director [of [NAME]] did not reply to the notification of August 20, 1999, that he made a negative decision by which he denied the parity requested”, and stated that the plaintiffs should have applied for judicial review of that negative decision instead of filing an action. The Federal Court of Appeal upheld that decision in Canada v. [NAME] , 2005 FCA 228, but without addressing that issue (the appeal was about whether there should be a new action for damages or a new grievance — and the Court of Appeal said that there should be a new grievance). [ 47 ] The applicants (as they became) went ahead with their application for judicial review, as instructed. The Attorney General took the position that the 1999 demand (which was deemed to be a grievance) was filed late. In in [NAME] v. Canada , 2006 FC 699, the Federal Court agreed that the deemed grievance was late for any bonus incurred more than 25 days before the demand and found that the applicants with timely claims were entitled to the bilingualism bonus. The Attorney General appealed the issue of the entitlement to the bilingualism bonus, and the Federal Court of Appeal dismissed the appeal in Canada v. [NAME] , 2007 FCA 152 . [ 48 ] The Board in [NAME] cited paragraph 8 of that 2007 Federal Court of Appeal decision, which reads as follows: [ 8 ] This formal demand went unanswered and, following numerous interlocutory proceedings , which need not be elaborated on, Mr. Justice Beaudry of the Federal Court ruled that the formal demand dated August 20, 1999, was to be treated as a third-level grievance and that the failure to respond to it was equivalent to its dismissal by the [NAME]. This decision was confirmed by the Court of Appeal ( Persons Wishing to Adopt the Pseudonyms of Employee No.1 v. Canada , [2005] F.C.J. No. 1039; 2005 FCA 228). [ 49 ] The issue in [NAME] was not a late response — it was the complete absence of a response. The Federal Court and Federal Court of Appeal concluded that the Crown could not immunize itself from judicial review by sitting on a grievance indefinitely and refusing to issue a decision. A non-response is a deemed denial without reasons; the Courts never suggested that a late response is a deemed denial without reasons. The Courts also never suggested that a non-response, or a late response, was a nullity. [ 50 ] In fact, the Federal Court’s 2006 decision lends credence to the employer’s argument, not [NAME]’s. The Federal Court dismissed the application as it pertained to any claim that was more than 25 days older than the date of the grievance. The Federal Court did this not by concluding that the grievance was out of time but by concluding that it was a continuing grievance, meaning that it was timely only for claims made within the 25-day period before it was presented. Notably, the Federal Court did not conclude that the employer could no longer rely on the untimeliness of the grievance due to its failure to render a decision. [ 51 ] [NAME] was not decided on the basis of s. 95 of the Regulations , so it is not binding in this case. However, with the greatest of respect, I disagree with the Board’s treatment of that case in [NAME] as if it stood for the proposition that a late decision is a nullity. All it stands for is the proposition that a non-decision is a deemed denial.

4. Other purposive and contextual clues to the meaning of s. 95(2) of the Regulations [ 52 ] In light of my conclusions set out earlier in this decision, I have turned to other contextual and purposive clues to interpret s. 95 of the Regulations . a. The doctrine of waiver [ 53 ] As I said earlier, statutory interpretation may require attention to important legal context that informs that statute. In this case, that legal context is the doctrine of waiver. [ 54 ] The doctrine of waiver occurs when a party to a proceeding takes steps that amount to foregoing reliance on some known defect in a claim. A waiver occurs when a party has full knowledge of their rights and has shown an unequivocal and conscious intention to abandon one of those rights; see Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co. , [1994] 2 S.C.R. 490. Labour arbitrators commonly apply the doctrine of waiver to time limits in a collective agreement and have commonly been asked to decide whether an employer has waived its right to object to the timeliness of a grievance; see [NAME] , 5th ed., at chapter 2:63, for a discussion of these cases, and [NAME] v. [NAME], Local 904 (2021), 325 L.A.C. (4th) 262 at paras. 53 to 56 for a recent arbitral discussion of this principle. [ 55 ] Section 95 of the Regulations is a codification of the doctrine of waiver as it applies to the timeliness of grievances. Namely, it sets out when an employer has waived its right to object to the timeliness of a grievance or some step taken in the grievance process; see [NAME] at para. 15 and [NAME] v. [NAME] ([NAME]) , 2024 FPSLREB 151 at para. 40. [ 56 ] Before the enactment of the Regulations , the Board ruled that an employer’s failure to object to the timeliness of a grievance at an earlier level of the grievance process did not amount to a waiver of its right to object to timeliness later, unless the failure to object prevented [NAME] from applying to the Board for an extension of time. The Board explained its old approach in [NAME] v. [NAME] , PSSRB File No. 168-02-23 (19730312) at para. 43, as follows:

43. We are not prepared to go as far as the Chief Adjudicator did and to apply by analogy the Ontario Supreme Court Rule 187 (quoted in paragraph 5 above). We believe that to do so would seriously weaken the value of a multi-step grievance procedure. As the Chief Adjudicator said in [NAME] ( supra ), “Neither party should be fatally prejudiced by errors or omissions at the first level; to hold otherwise could defeat the ends of justice in the collective bargaining system”. The ends of justice would be served by holding that an omission at any level of the grievance procedure to raise an objection as to timeliness should not bar the objection being raised at a later stage unless the aggrieved employee is deprived, because of the omission, of the opportunity to seek other relief against the time limits. An aggrieved employee is not necessarily deprived of such an opportunity merely because a fresh step has been taken by a grievance officer after knowledge of the irregularity. Indeed, it may well be desirable, in dealing with grievances, for objections as to timeliness not to be raised at the first level. If an employee has what appears to him to be a ground for complaint and that complaint can be adequately answered on the merits by a grievance officer, it is unlikely that the employee would consider the answer on the merits acceptable if it were coupled with the statement that the grievance is out of time and that he has forfeited his right to pursue it in any event. It would sound to him that the so-called answer on the merits is no more than an explanation ex gratia rather than a proper response to his complaint. The effectiveness of the grievance procedure may be weakened if grievance officers were rigidly held to be bound to raise timeliness objections at the first level on pain of the employer forfeiting any right to raise such an objection at a higher level. The primary purpose of a grievance procedure is to provide an opportunity for eliminating causes for discontent — not to pave the way for a judicial inquiry into their validity. Nothing should be done that will make this purpose more difficult to achieve. [ 57 ] Section 95 of the Regulations changes that rule. It provides explicitly that an employer must object to the untimeliness of a grievance, or some step referring the grievance to a higher level, at the level at which the time limit was not met and all subsequent levels in the grievance process. In essence, s. 95 of the Regulations provides that issuing a decision in the grievance process that does not address timeliness amounts to a waiver of any untimeliness — i.e., the employer has made a decision in full knowledge of its right to reject a grievance on the basis of untimeliness and has shown an unequivocal and conscious intention to abandon that right in the way in which it dealt with the grievance. [ 58 ] The Board decided [NAME] explicitly on policy grounds, namely a policy that grievances should be dealt with as informally as possible, focussing on the merits instead of procedural issues. Section 95 of the Regulations reflects a different policy choice, namely that grievors should not be caught by surprise when their grievances are dismissed for untimeliness after proceeding through the layers of the grievance process without objection. [ 59 ] However, a late grievance response does not necessarily show that an employer has waived its right to object to the timeliness of a grievance, and a late grievance response does not necessarily mean that a [NAME] is caught by surprise that the employer is raising an objection on timeliness either. [ 60 ] The non-applicability of the doctrine of waiver is particularly evident in this case because the employer made its final-level grievance decision before it knew that [NAME] had referred his grievance to adjudication. b. Treating an untimely decision as a nullity is inconsistent with s. 90(2) of the Regulations [ 61 ] The proposition set out by the Board in [NAME] , and [NAME] leads to consequences that would that render s. 90(2) of the Regulations redundant. [ 62 ] Subsection 90(1) of the Regulations states that a [NAME] may refer a grievance to adjudication no later than 40 days after they receive a decision at the final level of the grievance process. Subsection 90(2) goes on to say that if no decision was received, a [NAME] may refer their grievance to adjudication no later than 40 days after the expiry of the period for the employer to render its decision at the final level. If a non-decision is deemed a denial without reasons, then s. 90(2) of the Regulations would never apply. [ 63 ] The Board addressed this issue in [NAME] v. [NAME] ([NAME]) , 2023 FPSLREB 50, in which the employer made that very argument. In that case, the employer’s final-level grievance decision was due on September 4, 2018, but it did not issue a decision until December 1, 2022. [NAME] referred her grievance to adjudication within 40 days of the employer’s decision. The employer argued that the reference to adjudication was nevertheless late because its non-decision was a deemed denial on September 4, 2018, meaning that the reference to adjudication was due 40 days after that deadline. The Board rejected that argument, concluding that an employer’s failure to respond to a grievance at the final level is not a deemed rejection of the grievance for the purposes of s. 90(1) of the Regulations . c. The 30-day hard-stop in ss. 95(1) and (2) of the Regulations [ 64 ] The employer’s approach in this case does not give it a licence to delay making final-level grievance decisions indefinitely. As the Board pointed out in [NAME] , the combined effect of ss. 95(1) and (2) of the Regulations means that the employer must file an objection based on timeliness within 30 days of being provided with a copy of the notice of the reference to adjudication and must render a final-level grievance decision before the 30-day period expires; otherwise, the employer has not complied with s. 95(2) of the Regulations , requiring that it show, at the time of its objection, that it rejected the grievance at the level at which the time limit was not met and at all subsequent levels of the grievance process. This alleviates some of [NAME]’s concerns about the negative consequences of, in effect, giving the employer a grace period in which to render a decision at the final level; such a grace period would be limited to 30 days from the date that the employer is notified about the reference to adjudication. d. Consistency with s. 241(1) of the FPSLRA and the broader principle that it reflects [ 65 ] Subsection 241(1) of the FPSLRA provides that “[n]o proceeding under this Act is invalid by reason only of a defect in form or a technical irregularity.” This provision reflects a broader principle in labour relations that procedural requirements should not be stringently enforced when the other party suffers no prejudice; see Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324 , 2003 SCC 42 at para. 69; and [NAME] v. Canada (Attorney General) , 2011 FC 868 at para. 18. [ 66 ] While cases relying on that principle tend to refer to prejudice to an employer, the principle can work both ways. [ 67 ] Section 95 of the Regulations is clear that failing to object to the timeliness of a grievance in a grievance decision is not simply a defect in form or a technical irregularity. However, as I have already stated, it is silent about the consequences of a late grievance decision. I am prepared to accept that providing a grievance decision late may be a technical defect instead of a substantive one when the other requirements of s. 95 are met, and that s. 241(1) of the FPSLRA sets out a broader policy of forgiving technical defects. e. Submissions by [NAME] [ 68 ] I carefully considered the submissions made by [NAME], which I summarized earlier. [ 69 ] [NAME] argued that the 20-working-day time limit is enough time for an employer to respond to a grievance, and I agree. The employer has also not explained why it missed that deadline. However, those arguments do not help me address the proper interpretation of s. 95 of the Regulations . [ 70 ] [NAME] also argued that the employer could have applied for an extension of time to provide its final-level grievance decision. I agree. Section 61 of the Regulations gives the Board the power to extend the time “for the doing of any act ” [emphasis added] in a grievance process. Paragraph 61(b) also says that an application for an extension of time may be brought “on the application of a party”, not just on the application of a [NAME]. However, this does not provide a contextual clue for the interpretation of s. 95 of the Regulations because this provision could just as easily be meant to apply when an employer misses the 30-day deadline to file an objection on the basis of timeliness, giving the employer the opportunity to apply for an extension of time to make such an objection. [ 71 ] [NAME] also argued that the Board should not show flexibility to the employer, given that it is the employer that is inflexibly insisting that he has not filed his grievance on time. However, I do not believe that this is useful in interpreting s. 95 of the Regulations . [NAME] applied for an extension of time to file his grievance, the Board could assess whether the employer’s alleged inflexibility is a factor influencing whether it should grant [NAME] such an extension of time under s. 61 of the Regulations “in the interest of fairness”, but that does not make it a relevant factor in interpreting s. 95 of the Regulations . Similarly, [NAME] also states that he suffered great harm that can be remedied only by this grievance. That would also be a factor in deciding whether to grant him an extension of time to file his grievance, but it is not relevant to the interpretation of s. 95 of the Regulations . [ 72 ] [NAME] explained why his grievance was late. [NAME] was part of a group of employees and former employees in the federal public administration, as well as others, that filed a statement of claim in Federal Court seeking damages flowing from the Vaccine Policy . The Federal Court dismissed that claim brought by employees who could grieve on the basis that those plaintiffs had to grieve instead of file a civil claim; see [NAME] v. Canada , 2023 FC 252. The Federal Court of Appeal upheld that decision as it pertained to employees such as [NAME] in [NAME] v. Canada , 2024 FCA 106. The Supreme Court of Canada dismissed an application for leave to appeal on January 30, 2025. [NAME] says, in essence, that he was entitled to pursue this litigation strategy to its conclusion before filing a grievance. I will not comment on the strength of that argument. However, even if it were true, [NAME] still filed his grievance more than 25 working days after the Supreme Court of Canada’s decision denying leave to appeal. [ 73 ] Finally, [NAME] complains that the effect of dismissing his grievance would be that no challenge to the Vaccine Policy based on s. 7 of the Canadian Charter of Rights and Freedoms (enacted as Schedule B to the Canada Act 1982 , 1982, c. 11 (U.K.); “the Charter ”) will have been heard, because his court case was dismissed and because the Board dismissed a grievance in [NAME] v. Deputy Head (Department of Employment and Social Development) , 2024 FPSLREB 47, upheld in [NAME] v. Canada (Attorney General) , 2025 FCA 233. That is simply untrue. Both the Board in [NAME] and the Federal Court of Appeal in [NAME] considered s. 7 of the Charter and concluded that the Vaccine Policy did not violate that section; see [NAME] , at para. 362; and [NAME] , at para.

8. Interpreting s. 95 of the Regulations in the way proposed by the employer would not result in immunizing federal government decisions from Charter scrutiny.

5. Conclusion on the interpretation of s. 95 of the Regulations [ 74 ] I have concluded that s. 95 of the Regulations did not prevent the employer from raising its objection to the timeliness of [NAME]’s grievance. In light of the context and purpose of s. 95 of the Regulations , I prefer the Board’s decision in [NAME] over the other Board decisions that I referred to earlier. This means that the employer’s failure to make its final-level decision within the prescribed period did not render its late decision a nullity and that the late final-level decision could still validly object to the timeliness of a grievance, so long as the other requirements of s. 95 of the Regulations are met — namely, 1) that the employer has also objected to the timeliness of the grievance at earlier levels of the grievance process, and 2) that the employer has filed an objection and made its final-level decision within 30 days of being notified about the reference to adjudication. The employer met both of these requirements in this case. [ 75 ] I want to be very clear that this result turns on the specific set of facts in this case; namely, the employer rejected the grievance because of timeliness at the lower levels of the grievance process, those lower-level decisions were timely, the employer filed its objection within the 30-day period prescribed in s. 95(1) of the Regulations , the employer made its final-level decision within that 30-day period, and the employer made its final-level decision before it knew that [NAME] had referred his grievance to adjudication. I leave it for another case to decide which of those elements are necessary conditions to reach the same conclusion.

V. Result of the grievance [ 76 ] There is no dispute that [NAME] presented his grievance late. [NAME] has not applied for an extension of time to file his grievance. Since I concluded that s. 95 of the Regulations permits the employer to object to the timeliness of this grievance, I must deny the grievance as untimely. [ 77 ] For all of the above reasons, the Board makes the following order: (The Order appears on the next page)

VI. Order [ 78 ] The employer’s preliminary objection is allowed. [ 79 ] The grievance is denied. March 24, 2026. [NAME], a panel of the Federal [NAME]