Federal Board Partially Allows Arbitrary Representation Claim

Date: 202 60414 File : 561- 02- 51665 Citation: 2026 FPSLREB 40 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 [COMPANY] Respondent Indexed as [NAME] v. [COMPANY] In the matter of a complaint 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 Respond ent: [NAME], [COMPANY] \y 657 Decided on the basis of written submissions, filed February 20, March 28, and August 14, 2025 . (FPSLREB Translation )

REASONS FOR

DECISION (FPSLREB TRANSLATION)

I. Complaint before the Board [ 1 ] [NAME] (“the complainant”) made a complaint against the [COMPANY] (“the bargaining agent” or [NAME]) under s. 190(1)(g) of the Federal Public Sector Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act ”). She alleges that her bargaining agent contravened s. 187 by representing her arbitrarily, discriminatorily, and in bad faith. [ 2 ] When the relevant events took place, the complainant held a position classified in the [COMPANY] ([NAME]) with the Department of Foreign Affairs, [NAME] (“the employer”). She was subjected to the collective agreement between the [NAME] and the [NAME] that was to expire on June 30, 2026 (“the collective agreement”). [ 3 ] Specifically, the complainant is dissatisfied with how the bargaining agent handled her grievances and the support that she received for her disability insurance benefits claim. She also accuses it of refusing to file a grievance about harassment and discrimination based on her race and colour and of making insulting, disrespectful, and condescending remarks about her. [ 4 ] The bargaining agent made a motion in which it asked the Federal Public Sector Labour Relations and Employment Board (“the Board”) to summarily dismiss the complaint on the following grounds. It submits that the allegations about the handling of the complainant’s grievances are untimely. The Board does not have the jurisdiction to hear the allegation that it did not help her with her disability insurance benefits claim. Finally, for the allegations that it refused to file the harassment and discrimination grievance and that it reportedly made disrespectful remarks about her, she did not make an arguable case that s. 187 of the Act was violated. She submitted very detailed observations in response to its motion. [ 5 ] The Board informed the parties that it would decide the summary dismissal motion based on written submissions. In that context, it asked the parties if they wished to submit additional observations. The bargaining agent replied in the negative. The complainant provided brief additional observations in her August 14, 2025, email. [ 6 ] I analyzed the motion to summarily dismiss the complaint by applying the arguable-case test. According to that test, the Board accepts as true the facts alleged by the person who made a complaint, to determine whether the complaint makes an arguable case that the duty of fair representation under the Act was breached. [ 7 ] For the following reasons, I allow the bargaining agent’s motion, in part. A. The allegations about handling the grievances are untimely 1. Summary of the relevant alleged facts [ 8 ] On August 14, 2023, the complainant contacted the bargaining agent about the employer’s decision to implement a performance improvement plan due to alleged performance issues. The file was assigned to [NAME], a [NAME] labour relations advisor. [ 9 ] After reviewing the file, [NAME] informed the complainant that he would file a grievance to revoke the performance improvement plan and the performance review for the 2022‑2023 fiscal year. In that context, she sent him a draft grievance form. Among other things, she asked that the employer reimburse her leave days taken and expenses incurred due to the harassment, threats, and intimidation. She also asked to be reinstated into her previous position. [ 10 ] After their discussions, [NAME] refused to include harassment, threats, and intimidation allegations in the final version of the grievance. According to him, they were not relevant to its subject. He also refused to include the remedy to reimburse the sick leave taken and the incurred expenses, as according to him, there was no link to the performance improvement plan. [ 11 ] However, he agreed to keep the complainant’s proposed discrimination allegation. Related to it, he asked that the employer pay her compensation or any other amount considered appropriate. He also maintained the remedy requiring that she be reinstated into her previous position. On August 16, 2023, she signed the grievance form that included [NAME]’s proposed changes. [ 12 ] On December 21, 2023, the bargaining agent filed a second grievance, to challenge the complainant’s performance evaluation process for the 2023‑2024 fiscal year on the grounds that it did not conform to the collective agreement. The remedies requested in it were identical to those set out in the first grievance. [ 13 ] The two grievances were heard at the final level of the internal grievance process on April 10, 2024. On October 16, 2024, the employer allowed them, in part. It agreed that the performance review processes for the 2022‑2023 and 2023‑2024 fiscal years did not conform to the collective agreement’s requirements. However, it dismissed the discrimination allegations. That decision was communicated directly to the complainant. [ 14 ] As remedies, the employer agreed to replace the performance review results and year‑end comments for the 2022‑2023 and 2023‑2024 fiscal years with the rating “[translation] unable to assess”. They were to be implemented upon the complainant’s return to work from her long-term sick leave that began on July 29, 2024. [ 15 ] The complainant and the bargaining agent continued with frequent and regular exchanges during her sick leave. She was still on sick leave when her complaint was made. [ 16 ] On October 23, 2024, about a week after the employer’s response, [NAME] informed the complainant that he would not refer the grievances to adjudication. According to him, there was not enough evidence that the employer discriminated against her. He informed her that she could request that her file be reviewed, which she did the next day. As part of the review request, she sent several documents to the [NAME]’s general manager, [NAME], for analysis. [ 17 ] On November 4, 2024, [NAME] informed the complainant that her review request was denied. He concluded that [NAME] did not act arbitrarily, discriminatorily, or in bad faith. He stated that if she did not agree with his decision, she could make a complaint with the Board under s. 190 of the Act . [ 18 ] On the same day, the complainant asked [NAME] to review his decision. According to her, he failed to consider the financial and wage losses that she suffered. Still on November 4, 2024, he informed her that although the employer acknowledged that the performance review processes in question was not conducted under the rules, she was not entitled to the reimbursement of her leave, as there was no link between taking her leave and the performance review processes. Moreover, the employer dismissed the discrimination allegation. Therefore, he refused to reconsider his decision. [ 19 ] From that moment, the complainant began to allege that [NAME] erred by failing to request the leave reimbursement in her grievances. [ 20 ] In the days after those email exchanges, the complainant and [NAME] had other ones about the leave-reimbursement issue. In his emails of November 6 and 7, 2024, he reiterated that she would not be reimbursed the leave in question, as the discrimination allegations were dismissed. [ 21 ] According to the submitted documents, I note that the complainant persistently continued to correspond with the bargaining agent, to denounce the situation and generally to challenge the quality of the representation that she received. [ 22 ] The complainant made this complaint on February 7, 2025.

2. Analysis and reasons [ 23 ] A complainant may make a complaint against their bargaining agent within 90 days on the grounds that it acted in contravention of s. 187 of the Act . The time begins to run the moment that the complainant knew or ought to have known of the action or circumstances that gave rise to the complaint. Section 190(2) reads as follows: Time for making complaint Délai de présentation (2) Subject to subsections (3) and (4), a complaint under subsection (1) must be made to the Board not later than 90 days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint. (2) Sous réserve des paragraphes (3) et (4), les plaintes prévues au paragraphe (1) doivent être présentées dans les quatre-vingt-dix jours qui suivent la date à laquelle le plaignant a eu — ou, selon la Commission, aurait dû avoir — connaissance des mesures ou des circonstances y ayant donné lieu. [ 24 ] It is a strict deadline. According to recent Board caselaw, it has the implicit power to relieve a party from its failure to make a complaint within the time limit due to exceptional or unusual circumstances that could have been neither anticipated nor controlled (see [NAME] v. National Police Federation , 2025 FPSLREB 104 at para. 23; and [NAME] v. [NAME] of Canada , 2023 FPSLREB 100 at para. 41). [ 25 ] With respect to these two grievances, the complainant accuses the [NAME] of 1) giving the employer an additional six months to respond to her grievances, without her consent; 2) refusing to refer her grievances to adjudication; and 3) refusing to request in the grievances that the employer reimburse her leave, as she proposed. I will analyze each allegation in that order. [ 26 ] The grievances in question were heard at the final level of the grievance process on April 10, 2024. The employer responded on October 16, 2024. On that basis, the complainant concluded that the bargaining agent gave the employer a six-month extension to respond to her grievances, without her consent. [ 27 ] Even if I accepted that as true, more than 90 days elapsed between the date on which the complainant received the response to the grievances, October 16, 2024 (the date on which she reportedly concluded that the [NAME] had agreed to an extension of time), and the date on which she made her complaint, February 7, 2025. Therefore, this allegation is out of time. [ 28 ] The allegation about the bargaining agent’s refusal to refer the complainant’s grievances to adjudication is also out of time. In effect, on October 23, 2024, [NAME] informed her that her grievances would not be referred to adjudication, which was 107 days before she made her complaint. [ 29 ] The allegation about the bargaining agent’s refusal to include the remedy to reimburse sick-leave days in the grievances, as the complainant requested, is also out of time. I will explain. [ 30 ] The complainant does not dispute that she signed the grievance forms that [NAME] prepared. However, she believed that the remedies outlined in them still covered reimbursing her leave and other expenses, including the remedy of being reinstated into her previous position. She alleges that she was unaware that the remedies requesting compensation were strictly related to the discrimination allegations. Therefore, she did not understand why the employer refused to reimburse her the leave that she took, despite acknowledging that the performance evaluation processes were not conducted in accordance with the rules and, as a result, upheld the grievance in part. [ 31 ] However, in her response, the complainant acknowledges that on November 4, 2024, when [NAME] explained to her in writing why she would not be entitled to the leave reimbursement, she realized that the remedy requesting the leave reimbursement was not maintained in the grievance, as she had initially proposed. Elsewhere in her response, she states that from her email exchanges on November 6 and 7, 2024, with [NAME], she realized that the request to reimburse the leave was not part of the remedies outlined in the grievances. [ 32 ] According to the facts that the complainant alleged, on November 4, 2024, she learned that she would not be entitled to the leave reimbursement, as the employer did not uphold the discrimination allegations. On that date, she realized that the remedy that she had initially proposed in the first grievance draft that she sent to [NAME] was not maintained in the grievances’ final versions. The 90‑day period to make the complaint began then. However, more than 90 days passed between November 4, 2024, and February 7, 2025, the date on which it was made. Even were I to conclude that only on November 6, 2024, did the complainant definitively understand that the remedy in question was not part of her grievances, the allegation would still be out of time. [ 33 ] I reject the complainant’s argument that she made her complaint within the prescribed time, given that only on January 10, 2025, did she become aware that the bargaining agent represented her arbitrarily, discriminatorily, or in bad faith. [ 34 ] First, it must be noted that it is not up to the complainant to determine whether her bargaining agent acted discriminatorily, arbitrarily, or in bad faith, or as of when. Rather, it is up to the Board, in light of the evidence, to determine whether the bargaining agent’s conduct breached the duty of fair representation. In other words, this finding of fact belongs to the Board. [ 35 ] Moreover, the wording of s. 190(2) of the Act states that the 90‑day period runs, and I paraphrase, from the moment that a complainant became aware, or ought to have become aware, of the actions or circumstances that gave rise to the complaint, not from the moment that they determined that their bargaining agent acted discriminatorily, arbitrarily, or in bad faith. As I have already stated, the complainant became aware that the leave-reimbursement remedy was not part of the remedies outlined in the grievances more than 90 days before making her complaint. [ 36 ] The complainant did not adduce any exceptional or unusual circumstances that were unforeseen and beyond her control that would justify the Board relieving her from her failure to make her complaint within the 90‑day period. In her response, she affirms that the complaint is exceptional because she received a death threat from another employee on December 19, 2022, and that she suffers from post‑traumatic stress, as diagnosed by her doctor. [ 37 ] It is difficult to understand how or in what way the alleged death threat, received more than two years before she made her complaint, would have prevented the complainant from making it within the prescribed time limit. Moreover, although she affirms that she suffers from post‑traumatic stress and that she was on sick leave from July 29, 2024, the documents that she and the bargaining agent submitted reveal that she continued her efforts with it vigorously until her complaint was made, and even after that. I conclude that her health condition, whatever it may be, did not prevent her from making the complaint within the 90‑day time period. B. The allegation that the bargaining agent did not help the complainant with her disability insurance claim is outside the Board’s jurisdiction 1. Summary of the relevant alleged facts [ 38 ] As I have already stated, the complainant went on long‑term sick leave on July 29, 2024. [ 39 ] On November 6, 2024, [NAME], Deputy Director, International Partnerships, [NAME], contacted the complainant about her employment status and the options available to her in response to her medical certificate extending her sick leave. [ 40 ] In her email, [NAME] informed the complainant that she had no more paid sick leave and that her employment status had to be updated to reflect that she was on unpaid leave, to resolve an overpayment situation. Related to that, [NAME] attached several documents to her email, for the complainant. She also strongly suggested that the complainant make a disability insurance claim with [NAME] as soon as possible, given that the approval process could take several weeks. [ 41 ] In the same email, [NAME] explained to the complainant the amount of the disability insurance benefits that she would be entitled to if [NAME] accepted her claim and informed her that there was a 13‑week waiting period (the qualifying period). She invited the complainant to contact her for more information about the disability insurance claim. It should be noted that as of that email’s date until December 18, 2024, the complainant continued to receive her full salary. As will be discussed later, it resulted in the overpayment. [ 42 ] On the same day, the complainant forwarded [NAME]’s November 6, 2024, email to [NAME] and [NAME]. A few hours later, [NAME] replied that she could claim disability insurance benefits, as she had exhausted her sick leave, and he confirmed that [NAME] could help her with that process. He reiterated that her sick leave would not be reimbursed, as the discrimination allegations in the grievances had been dismissed. [ 43 ] In the days and weeks that followed, given the complainant’s insistence, the bargaining agent continued to explain to her why her sick leave would not be reimbursed, even though the employer upheld in part her grievances challenging her performance evaluations and the performance improvement plan. She did not agree with the explanations. That led to her and it having several exchanges. The main focus of them was her refusal to accept that her leave would not be reimbursed, even though the employer allowed her grievances in part. [ 44 ] In an email dated January 7, 2025, [COMPANY] informed the complainant that she had been on unpaid leave due to illness as of August 8, 2024, and explained the options available to her. Around the same time, the employer also informed her that she was in an overpayment situation. According to her, she had to repay $26 300 as a result. [ 45 ] [COMPANY]’s correspondence led to the complainant and the bargaining agent having several exchanges and discussions. She did not accept being on unpaid leave and continued to ask when the employer would reimburse her leave, given that it allowed her grievances in part, despite the numerous explanations that the bargaining agent had already provided. In his January 8, 2025, email, [NAME] reiterated to her that she could still submit a retroactive claim for disability insurance benefits, which could provide her with a source of income until she returned to work. [ 46 ] Ultimately, the complainant agreed to submit the claim in question. On February 3, 2025, an employer representative informed her that the manager’s form for the disability insurance claim was submitted on January 31, 2025, and that [COMPANY] had 20 days to complete [NAME]’s compensation form.

2. Analysis and reasons [ 47 ] Essentially, the complainant blames the bargaining agent for not helping her obtain disability insurance benefits. She acknowledges that it informed her of her right to make a disability insurance claim, that she could file it retroactively, and that the bargaining agent explained her obligations with respect to the contributions related to the benefits that the employer offered. She also acknowledges that the bargaining agent explained [COMPANY]’s letter to her. [ 48 ] However, she submits that the bargaining agent did not intend to help and guide her, and was not interested in doing it, through the steps to obtain the disability insurance benefits . According to her, it did not provide her with any representation with respect to the steps to take to secure disability insurance and did not follow up when she asked it to. [ 49 ] Specifically, she alleges that after she forwarded [NAME]’s November 6, 2024, email to the bargaining agent, it refused to follow up with the employer, to determine the exact date on which she went on unpaid leave. She found out only on January 7, 2025. According to her, she could not make the disability insurance claim without that crucial information. Therefore, she argues that the bargaining agent is responsible for the delay making her disability insurance claim and, ultimately, for her financial difficulties. [ 50 ] I note that this allegation is inconsistent with [NAME]’s emails who, on November 6, 2024, strongly encouraged the complainant to make a disability insurance claim as soon as possible, and with [NAME]’s email who, on the same day, also suggested that she make the claim. [NAME] also set out that the complainant could contact her for any information related to the steps to make a disability insurance claim. The complainant does not dispute it. [ 51 ] In his January 8, 2025, correspondence, [NAME] also encouraged the complainant to begin the process of claiming disability insurance benefits. Rather than make the disability insurance claim, as [NAME] suggested in her November 6, 2024, email, the complainant continued to request the leave reimbursement. [ 52 ] I agree with the bargaining agent that the Board does not have the jurisdiction to hear the allegation that it breached s. 187 of the Act in the context of a disability insurance claim. Neither the collective agreement nor the Act governs issues related to the disability insurance plan . The complainant made no argument to the contrary. [ 53 ] Section 187 of the Act reads as follows: Unfair representation by bargaining agent Représentation inéquitable par l’agent négociateur 187 No employee organization that is certified as the bargaining agent for a bargaining unit, and none of its officers and representatives, shall act in a manner that is arbitrary or discriminatory or that is in bad faith in the representation of any employee in the bargaining unit. 187 Il est interdit à l’organisation syndicale, ainsi qu’à ses dirigeants et représentants, d’agir de manière arbitraire ou discriminatoire ou de mauvaise foi en matière de représentation de tout fonctionnaire qui fait partie de l’unité dont elle est l’agent négociateur. [ 54 ] The Board’s settled caselaw states that the duty of fair representation under s. 187 of the Act is limited strictly to matters arising under a collective agreement or the Act (see [NAME] v. [NAME] of Canada, 2025 FPSLREB 144 at para. 22; and [NAME] v. [NAME] - [NAME] ([NAME] ‑ SACC ‑ CSN) , 2023 FPSLREB 71 at paras. 20 to 23). On that point, I find the following passage from [NAME] v. [NAME] , 2013 PSLRB 48, particularly relevant: … [52] Given the mandate of the Act and where the duty of fair representation section is situated, my view is that Parliament did not intend to give the Board unlimited jurisdiction to review all the actions of employee organizations and bargaining agents. It only makes sense that the Board’s jurisdiction to hear and determine duty of fair representation complaints must in some way arise out of the parameters of the Act or the relevant collective agreement. … [ 55 ] Since issues related to the disability insurance plan do not arise from the collective agreement or the Act , the duty of fair representation set out in the Act does not apply. For that reason, I cannot consider the complainant’s allegation that the bargaining agent breached s. 187 of the Act by refusing to help and guide her in and through the steps to obtain disability insurance benefits. C. The complainant’s alleged facts, accepted as proven, make an arguable case that the [NAME] acted arbitrarily when it refused to file a grievance [ 56 ] In the context of this allegation, the complainant alleges that the bargaining agent breached its duty of fair representation for two reasons. First, it refused to file a harassment and discrimination grievance based on her race and colour. Second, it did not recommend that she initiate the recommended recourse related to the situation that she experienced in her assignment to Burkina Faso. [ 57 ] The facts that the complainant alleged, accepted as true, make an arguable cause that the [NAME] acted arbitrarily when it refused to file the harassment and discrimination grievance in question. The allegation that it did not recommend that she initiate the other recourse is out of time.

1. Summary of the relevant alleged facts [ 58 ] Just for context, and to facilitate understanding the factual background set out as follows, on June 26, 2024, the complainant asked the bargaining agent to participate in an informal discussion with the selection committee members about a staffing process for a position classified at the PM-06 group and level for which she had been eliminated. [ 59 ] The same day, [NAME] informed the complainant that the bargaining agent does not provide representation when a member seeks to be appointed to a position classified outside the [COMPANY]. So, he invited her to contact a representative of the [NAME] of Canada ([NAME]) local. [NAME] represents the PM group. She did so. [ 60 ] On November 6, 2024, during one of the meetings with the [NAME] representatives, the complainant told them about her relationship of conflict with two managers and the harassment that she reportedly experienced and continued to experience from them. She explained to them that the situation was causing her much stress and anxiety and that it was affecting her health. [ 61 ] After obtaining additional information about the allegations, the [NAME] representatives recommended that she file a harassment and discrimination grievance, rather than make harassment complaints, as was initially considered. [ 62 ] In that context, [NAME] filed the grievance on January 6, 2025. However, on January 14, 2025, [NAME] withdrew it after determining that the complainant was not part of its bargaining unit. In effect, she still held a position in the [COMPANY] and was represented by the [NAME]. The [NAME] representative informed [NAME] of the situation. [ 63 ] A few minutes after the [NAME] representative informed her that the harassment and discrimination grievance had been withdrawn, the complainant asked the [NAME] to file the grievance. [NAME] replied that the grievance could not be transferred from [NAME] to the [NAME]. He told her that he had to assess its merits before he could file it. In that context, he asked her to send him a copy of her file, so that he could analyze it. He also pointed out that if the facts alleged in the grievance were related to the decision to eliminate her from the staffing process, the [NAME] would not be able to file a grievance because staffing processes are subject to the Public Service Employment Act (S.C. 2003, c. 22, ss. 12 and 13). [ 64 ] On the same day, January 14, 2025, the complainant responded to [NAME], stating that she wished to file a harassment and discrimination grievance based on her race and colour. She attached a document to the email, setting out the facts cited to support the grievance. She stated that she could provide examples to demonstrate that she was a victim of harassment and discrimination. It was sent to [NAME] at 4:36 p.m. [ 65 ] The next day, at 9:16 p.m., [NAME] informed the complainant that after a review of the allegations that she presented in the document attached to her email, the [NAME] would not file a grievance. The reasons he provided to support his decision are summarized as follows: · The purpose of a grievance is to challenge employer decisions, not to attack employees personally. If the complainant wanted to challenge a particular person’s actions, she had to make a complaint. Given that she had already made several complaints to challenge the unfavourable treatment that she claimed to be a victim of due to her race or colour, she would have had to wait for the administrative investigations to conclude, to see if they would address her concerns. · The majority of the allegations made in the document were against staffing processes that could not be the subject of a grievance under article 43 (no discrimination) of the collective agreement. · With respect to the “[translation] other more general and undetailed allegations”, the alleged facts occurred outside the 25‑day period and so were out of time for filing a grievance. · As for the allegations unrelated to staffing processes, there was no evidence that management’s decisions were motivated notably by her race or colour. [ 66 ] The complainant alleges that the document that she sent to [NAME] to support her grievance was drafted quickly because she wanted to meet the 25‑day deadline to file the grievance. That is why she offered to provide more details, to clarify the allegations. However, [NAME] was not interested in meeting with her to understand her situation or ask questions about her allegations. [ 67 ] According to the complainant, [NAME] made no effort to verify the facts with her before deciding not to file the grievance. [ 68 ] According to the complainant, the allegations in the document that she sent to [NAME] were against several people in the department who had harassed her and discriminated against her. However, [NAME] preferred to believe what seemed right to him rather than collaborate and dialogue with her. He did not ask her who had harassed her and how and when. According to her, employees in the organization continued to harass and discriminate against her, not only with respect to the staffing process. The grievance that she wanted to file was against several people who had harassed and discriminated against her, not just one person. Furthermore, contrary to what [NAME] claims, the complaints that she made in the past were not about discrimination based on race or colour. Therefore, the administrative investigations would not have addressed her concerns about those grounds of discrimination. [ 69 ] The complainant alleges that [NAME] decided not to file the grievance without taking the time to speak with her and clarify the facts that she included in the document. [ 70 ] On January 16, 2025, the day after [NAME] informed the complainant that the [NAME] would not file a harassment and discrimination grievance, she emailed him, questioning his reasoning and correcting certain facts that according to her were incorrect. That email led to further exchanges about the facts and reasons of her request to file a grievance. Each maintained their position. [ 71 ] The complainant also alleges that the [NAME] breached s. 187 of the Act by not recommending that she take the appropriate recourse for her situation when she was assigned for about two years to Burkina Faso, which ended in June 2024 . In particular, [NAME] did not suggest that she file a harassment grievance. She claims that he knew that her work environment during her assignment “[translation] was toxic and an ordeal” and that she made a harassment complaint against her manager.

2. Analysis and reasons [ 72 ] Section 187 of the Act sets out the bargaining agent’s duty of fair representation for every employee who is part of its bargaining unit. I have already reproduced that provision’s wording in these reasons. Essentially, it prohibits a bargaining agent and its officers and representatives from acting in an arbitrary, a discriminatory, or a bad-faith manner when representing a bargaining unit member. [ 73 ] The duty of fair representation was created to offset a bargaining agent’s exclusive power to represent employees in their interactions with their employer (see Canadian Merchant Service Guild v. Gagnon , [1984] 1 S.C.R. 509 at 526; and [NAME] v. Canada (Attorney General) , 2014 SCC 13). This is a fundamental labour relations principle. [ 74 ] The Board’s settled caselaw is that bargaining agents have substantial latitude when deciding whether to represent a bargaining unit member or determining how to do it (see [NAME] , at 527; [NAME] v. [NAME] , 2021 FPSLREB 127 at para. 10; and [NAME] v. [NAME] , 2010 PSLRB 128 at para. 38). The duty of fair representation does not require the bargaining agent to file a grievance or follow a specific strategy, even if the member requests it (see [NAME] v. [NAME] of Canada , 2024 FPSLREB 28 at para. 32). However, that latitude is not absolute and cannot be exercised arbitrarily, discriminatorily, or in bad faith. [ 75 ] First, for the representation not to be deemed arbitrary, the bargaining agent must conduct a thorough review of the grievance and the relevant facts. [ 76 ] To do that, it must gather and analyze sufficient information necessary to reach a sound decision (see [NAME] v. [COMPANY] , 2023 FPSLREB 3 at paras. 66 to 69). Its decision must not be based on irrelevant factors or principles, and its conduct must not display an indifferent, hasty, careless, superficial, thoughtless, or inattentive attitude (see [NAME] , at 527). [ 77 ] The obligation not to act in bad faith toward a member requires specifically that the bargaining agent refrain from showing personal hostility toward the member or behaviour that is vexatious, dishonest, malicious, or spiteful toward them (see [NAME] v. [COMPANY] , 2022 FPSLREB 30 at para. 97). As for discrimination, its prohibited ground must play no role in the bargaining agent’s decision to file a grievance or, more broadly, in representing a member within the limits of s. 187 of the Act . [ 78 ] It is incumbent upon a complainant to demonstrate that on a balance of probabilities, their bargaining agent acted arbitrarily, discriminatorily, or in bad faith (see [NAME] , at para. 10; and [NAME] v. [NAME] of Canada , 2022 FPSLREB 62 at para. 29). [ 79 ] Assuming the complainant’s alleged facts as true, I am not able to conclude that she made an arguable case that the bargaining agent acted in bad faith by refusing to file a harassment and discrimination grievance in January 2025. Specifically, the analysis of the alleged facts did not reveal that it acted with personal hostility toward her or that its behaviour toward her was vexatious, dishonest, malicious, or spiteful. [ 80 ] The complainant’s alleged facts also do not demonstrate that the bargaining agent acted in a discriminatory manner toward her. In other words, based on the alleged facts, I cannot conclude that a prohibited ground of discrimination played a role in its decision not to file the grievance in question. The mere belief that she was a victim of discrimination, with no fact to confirm it, is not enough (see [NAME] v. [COMPANY] ., 2005 CHRT 32 at para. 41). [ 81 ] However, the complainant’s alleged facts make out an arguable case that the [NAME]’s decision not to file the grievance in question was made arbitrarily. I will explain. [ 82 ] Specifically, the complainant’s alleged facts reveal that the bargaining agent did not take the time to communicate with her, to understand and clarify the allegations, despite her offers to detail the examples of harassment and discrimination that she experienced. [NAME] made the decision not to file the grievance based on her written allegations without questioning them, better understanding their scope, or validating the underlying facts. Her alleged facts reveal that the bargaining agent did not thoroughly examine the allegations, as it should have done, before making the contested decision. Thus, according to her, [NAME]’s decision not to file the grievance was based on incorrect facts and a misunderstanding of her situation. I agree. [ 83 ] The alleged facts suggest that the bargaining agent neither gathered nor analyzed enough information necessary to make a sound decision on whether to file a grievance. [ 84 ] For those reasons, I conclude that the complainant made an arguable case that the bargaining agent’s decision not to file a harassment and discrimination grievance based on her race and colour was arbitrary. Therefore, evidence is required to determine the allegation’s validity on a balance of probabilities. [ 85 ] The allegation that the bargaining agent breached s. 187 of the Act by not recommending appropriate remedies related to her situation during her Burkina Faso assignment, notably by not suggesting that she file a harassment grievance, is out of time. [ 86 ] Indeed, the complainant knew or, in my opinion, ought to have known that the bargaining agent did not recommend initiating the recourse in question related to her Burkina Faso situation by June 2024 at the latest, when her assignment there ended. That is when the 90‑day period provided in s. 190(2) of the Act began. D. The alleged facts do not reveal that the bargaining agent’s remarks demonstrated animosity or hostility 1. Summary of the relevant alleged facts [ 87 ] The complainant alleges that [NAME] attacked her with condescending and sometimes disrespectful and insulting comments when he represented her. [ 88 ] Essentially, the complainant blames the bargaining agent for mismanaging her files. She did not agree with its decisions or the opinions and explanations that it gave her. Some of her complaints are related to events that are already out of time, as explained earlier in this decision. [ 89 ] The complainant also alleges that [NAME]’s emails in this context were generally condescending and sometimes disrespectful and insulting. To support this allegation, she cites in particular his December 18, 2024, email, in which he questioned her analytical ability and suggested that she demonstrated an irrational mindset with respect to her situation. He made that comment in response to her suggestion that her situation was similar to that experienced by the grievor in [NAME] v. [NAME] (Department of Foreign Affairs, [NAME]) , 2018 FPSLREB 13.

2. Analysis and reasons [ 90 ] The email exchanges to which the complainant refers set out that she did not always agree with the bargaining agent’s approach. She often questioned the advice and opinions that its representatives gave her on the issues that she raised, some of which, as I have already stated, are out of time. Certainly, some of the expressed remarks were sometimes direct and firm. [ 91 ] However, being direct and firm is not synonymous with hostility, malice, or animosity. It is important that the parties be able to express their positions clearly and honestly. During heated exchanges, tensions may rise. That in itself is not a sign of bad faith. [ 92 ] The content of the exchanges that the complainant identified does not allow me to conclude that she made an arguable case that the bargaining agent acted in bad faith, in breach of s. 187 of the Act . Their exchanges were sometimes direct and firm, but they did not display hostility, animosity, or malice and were not vexatious. [ 93 ] Finally, [NAME]’s words in his December 18, 2024, email about the complainant’s analytical ability were somewhat awkward. That said, this isolated comment, when interpreted in its context, does not make an arguable case that the bargaining agent acted in bad faith toward her. [ 94 ] For all of the above reasons, the Board makes the following order: (The Order appears on the next page)

II. Order [ 95 ] The bargaining agent’s motion to summarily dismiss the complaint, on the grounds that the allegations are out of time and do not make an arguable case of a breach of s. 187 of the Act , is allowed in part. [ 96 ] The complaint will be returned to the Board’s registry to be scheduled for a hearing, to determine whether the [NAME]’s decision not to file the harassment and discrimination grievance, based on race and colour, was made arbitrarily. April 14, 2026. [NAME], a panel of the Federal Public Sector Labour Relations and Employment Board