FPSLREB Dismisses Late Complaint on Unfair Representation

Date: 202 60325 File : 561-32-53302 Citation: 2026 FPSLREB 25 [NAME] and Employment Board Act and [NAME] Act Before a panel of the [NAME] 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 [NAME] Act Before: [NAME], a panel of the [NAME] and Employment Board For the Complainant: Herself For the Respondent: [redacted] Decided on the basis of written submissions, filed November 17 and 28, 2025 .

REASONS FOR

DECISION I. Complaint before the Board [ 1 ] [NAME] (“the complainant”) made this complaint against the [NAME] of Canada (“the respondent”). She alleged that it violated s. 187 of the [NAME] Act (S.C. 2003, c. 22, s. 2; “the Act ”), which is about unfair representation by a bargaining agent. [ 2 ] She alleges that the respondent acted in a manner that was all of the following: · arbitrary, because it delayed action, failed to respect timelines, and left her to pursue her grievance largely on her own, despite repeated reminders; · discriminatory, because her requests for representation were sidelined despite clear evidence of discriminatory treatment by her employer and because other bargaining unit members had their grievances advanced, but she was told that the respondent might not represent her; and · in bad faith, because the respondent reassured her but failed to act effectively and abandoned her grievance, which meant that she had to file one on her own while the respondent withheld full representation. [ 3 ] As corrective action, she requests that the [NAME] and Employment Board (“the Board”) do the following: · find that the respondent breached its duty of fair representation; · order the respondent to take corrective action, including processing her grievance properly or compensating her for the prejudice caused by its inaction; and · grant any other remedy that the Board considers just and equitable. [ 4 ] The respondent made a preliminary motion to dismiss the complaint. It argues that the complaint is untimely and that the complainant did not make an arguable case. [ 5 ] Section 190(1)(g) of the Act requires that the Board examine and inquire into any complaint made to it that an employee organization committed an unfair labour practice. Under s. 22 of the [NAME] and Employment Board Act (S.C. 2013, c. 40, s. 365; “the FPSLREBA ”), the Board “… may decide any matter before it without holding an oral hearing.” [ 6 ] I reviewed the parties’ submissions, and I am satisfied that they provide me with enough information to decide the respondent’s motion without holding an oral hearing. [ 7 ] For the following reasons, I find that the complaint was made outside the 90-day time limit in the Act , so I dismiss it. There is no need for me to decide whether it discloses an arguable case.

II. Background [ 8 ] The complainant was a multi-program inspector classified at the EG-03 group and level. She was hired by the [NAME] (“the employer”) as an employee on a specified-term contract. The date that she was hired is not clear, but that information is not necessary to decide this issue. [ 9 ] The employer advised the complainant that her term employment would not be extended past the September 27, 2024, expiry date. [ 10 ] After the employer told her that, she contacted the respondent for assistance to grieve the decision not to extend her term employment. She raised concerns about discrimination because the employer extended the employment of a term employee who was hired after her. The respondent advised her that recourse is limited when an employee’s term employment is not extended. It also advised her to make a human rights complaint, to preserve her rights. [ 11 ] The respondent also advised the complainant that she could raise the issue of discrimination in her grievance but that if it determined later that there was inadequate proof of discrimination, then it would withdraw the grievance. [ 12 ] The respondent filed a grievance on the complainant’s behalf on September 27, 2024, contesting the employer’s decision to not extend her term employment. The grievance also referred to the “No discrimination” clause of the collective agreement between the employer and the respondent for the [COMPANY] (expiry date: December 31, 2025). [ 13 ] The first-level grievance hearing took place on October 23, 2024. The respondent met with the employer’s representatives and advanced concerns. [ 14 ] The employer denied the grievance at the first level of the grievance procedure on November 6, 2024. In its response, it indicated that the complainant’s term was not extended because of budget constraints and operational requirements. [ 15 ] The grievance was transmitted to the second level of the grievance procedure on November 7, 2024. [ 16 ] The second-level grievance hearing took place on December 6, 2024. The respondent met with the employer’s representatives and advanced the complainant’s concerns. [ 17 ] The employer denied the grievance on December 18, 2024, and the grievance was transmitted to the final level of the grievance procedure on December 23, 2024. [ 18 ] In early 2025, the respondent assessed the file and determined that the complainant’s grievance, filed against the non-extension of her term employment, had a low chance of success. [ 19 ] On February 19, 2025, the respondent advised the complainant that it would not pursue her grievance because of its assessment. [ 20 ] The respondent and the complainant continued to exchange information about the status of her grievance at the final level of the grievance procedure. It is not clear whether the employer responded to the grievance at the final level. Nothing turns on whether it issued a final-level grievance response. [ 21 ] The complainant referred her grievance to adjudication on April 30, 2025. She did not have the respondent’s support, and she represented herself at adjudication. [ 22 ] On September 26, 2025, the Board dismissed her grievance because it did not have jurisdiction to hear it (see [NAME] v. [NAME] , 2025 FPSLREB 126). [ 23 ] She made this complaint on October 6, 2025.

III. Reasons [ 24 ] I conclude that the complaint is untimely. It is not continuing. The time limit to make this complaint should not be extended because the parties’ submissions do not demonstrate that it should be. A. The complaint is untimely [ 25 ] The complainant argues that she made her complaint in time. She submits that the most serious acts of unreasonable representation occurred between December 2024 and September 2025. They include the following: · the respondent’s failure to advance the grievance at the final level of the grievance procedure; · its failure to provide any outcome or follow-up within the required timelines; · on April 25, 2025, incorrectly advising her that “nothing much can be done” because she was a term employee whose term was not extended; · on May 10, 2025, advising her that her grievance was 83rd in the backlog of grievances to be heard at the final level; and · the Board denied her grievance on September 26, 2025, because of a lack of bargaining agent representation. [ 26 ] She argues that she made her complaint immediately after the respondent refused to represent her in her judicial-review application of the Board’s decision to deny her grievance. She contends that the harm crystallized at that time. She maintains that the Board has repeatedly held that the limitation period starts when the adverse effects are known and not merely when the first event occurred, and she cites Canadian Merchant Service Guild v. Gagnon , [1984] 1 S.C.R. 509, to support her position. [ 27 ] The respondent argues that the complaint is untimely and ought to be dismissed. [ 28 ] It argues that s. 190(2) of the Act states that complaints must be made no later than 90 days after the date that the complainant knew or ought to have known of the action or circumstances that gave rise to the complaint. [ 29 ] According to the respondent, the complainant knew that it would not represent her on February 19, 2025. It contends that the deadline to make a complaint was May 20, 2025, and that she did not meet the deadline. [ 30 ] Other than the respondent’s assertion, I do not have any information to demonstrate that it advised the complainant that it would not represent her on February 19, 2025. I will use the April 30, 2025, date because both parties agree that the complainant referred her grievance to adjudication without the respondent’s support on that date. [ 31 ] I conclude that the complainant knew or ought to have known that the respondent would not represent her when she referred her grievance to adjudication on April 30, 2025, without its support. [ 32 ] The 90-day time limit to make her complaint ended on July 29, 2025. She made it on October 6, 2025, which was outside the time limit outlined in the Act . B. The complaint is not continuing [ 33 ] The complainant submits that there was a continuing pattern of misconduct by the respondent, which extended the limitation period. She argues that its actions were not isolated but formed a continuing pattern of arbitrary, discriminatory, and bad-faith conduct that extended into 2025. She suggests that that continuous course of conduct delayed the deadline for her to make a complaint, and she claims that there are Board decisions applying s. 190(2) of the Act and the continuing-breach doctrine. However, she did not cite specific decisions. [ 34 ] The respondent argues that the complaint is not continuing. [ 35 ] A continuing complaint involves a recurring breach and not recurring damages (see [NAME] v. [NAME] (Canada Border Services Agency) , 2012 PSLRB 39 at para. 24; [NAME] v. [NAME] (Canada Border Services Agency) , 2021 FPSLREB 93 at para. 35; and [NAME] v. [NAME] (Canada Border Services Agency) , 2025 FPSLREB 125 at para. 16). [ 36 ] In her submissions, the complainant argues that the most serious acts of unreasonable representation took place between December 2024 and September 2025 and included the following: · the respondent’s failure to advance the grievance at the final level of the grievance procedure; · its failure to provide any outcome or follow-up within the required timelines; · on April 25, 2025, incorrectly advising her that “nothing much can be done” because she was a term employee whose term was not extended; · on May 10, 2025, advising her that her grievance was 83rd in the backlog of grievances to be heard at the final level; and · the Board denied her grievance on September 26, 2025, because of a lack of bargaining agent representation. [ 37 ] I note that she did not mention referring her grievance to adjudication without the respondent’s support on April 30, 2025. I conclude that the May 10, 2025, update about the status of her grievance, and the Board’s decision denying it on September 26, 2025, were not recurring breaches of the respondent’s duty to represent her. [ 38 ] I conclude that the complaint is not continuing, since I was not provided any information demonstrating repetitive breaches of the respondent’s duty of fair representation. C. The deadline to make a complaint will not be extended [ 39 ] Finally, she argues that if her complaint was made late, then the Board should use its discretion and accept it. She contends that s. 61 of the FPSLREBA grants the Board broad discretion to accept late filings, in the interest of justice. I note that the FPSLREBA has 42 sections. I believe that the complainant referred to s. 61 of the [NAME] (SOR/2005-79; “the Regulations ”). [ 40 ] She suggests that this case warrants the Board exercising its discretion because of the following: · she is self-represented, has a documented psychological injury, and has had bilateral hand surgeries; · the respondent repeatedly misled her about timeliness and the next steps for her grievance; · she relied on the respondent’s assurances; · the prejudice is severe: job loss, loss of adjudication, financial hardship, and psychological harm; and · the respondent’s conduct prevented her from knowing that her grievance had been effectively abandoned until the Board denied it. [ 41 ] The respondent argues that the complainant did not identify any exceptional or unusual circumstances that would warrant the Board granting an extension of time to make her complaint and cites [NAME] v. [NAME] of Canada , 2023 FPSLREB 100 (“ [NAME], 2023 FPSLREB 100 ”) at para. 44; and [NAME] v. [NAME] of Canada , 2025 FCA 59. [ 42 ] Section 61 of the Regulations is about the extension of time to file a grievance, present a grievance at any level of the grievance process, refer it to adjudication or to provide or file any notice, reply or document, and it states that the Board may extend a time limit in the interest of fairness. It does not address making complaints under s. 190 of the Act . Section 57 of the Regulations addresses the complaints procedure. It does not provide the Board authority to extend the time limit to make a complaint. [ 43 ] The case law states that the time limit to make a complaint can be extended in very exceptional and limited situations, when the Board is convinced that the complainant could have neither anticipated nor controlled the cause of the delay because of an extraordinary event that was out of the control of the party that missed the time limit . [NAME], 2023 FPSLREB 100 , at paras. 38 to 41, uses terms like “accident”, “ force majeure ”, and “Act of God”. [ 44 ] The parties’ submissions do not demonstrate any exceptional or unusual circumstances that would justify the Board exercise its limited authority to extend the 90-day time limit to make this complaint. [ 45 ] For all of the above reasons, the Board makes the following order: (The Order appears on the next page)

IV. Order [ 46 ] The respondent’s motion to dismiss is granted. [ 47 ] The complaint is dismissed. March 25, 2026. [NAME], a panel of the [NAME] and Employment Board