ARCHIVED — Regulations Amending the Public Service Staffing Tribunal Regulations

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Vol. 145, No. 12 — June 8, 2011

Registration

SOR/2011-116 May 25, 2011

PUBLIC SERVICE EMPLOYMENT ACT

The Public Service Staffing Tribunal, pursuant to section 109 of the Public Service Employment Act (see footnote a), hereby makes the annexed Regulations Amending the Public Service Staffing Tribunal Regulations.

Ottawa, May 18, 2011

GUY GIGUÈRE
Chairperson of the
Public Service Staffing Tribunal

REGULATIONS AMENDING THE PUBLIC SERVICE STAFFING TRIBUNAL REGULATIONS

AMENDMENTS

1. The definition “standardized test” in subsection 1(1) of the Public Service Staffing Tribunal Regulations (see footnote 1) is repealed.

2. Sections 5 and 6 of the Regulations are replaced by the following:

Amendment of time

5. (1) A party may request the Tribunal to extend or reduce the time within which a complaint may be made or within which notices and other documents must be given in relation to a complaint.

Submissions

(2) Before determining whether to extend or reduce the time, the Tribunal must provide the other parties an opportunity to make submissions respecting the request.

Determination

(3) The Tribunal must determine whether it is in the interest of fairness to extend or reduce the time and, if it is, the length of the extension or reduction.

3. The marginal note to section 8 of the Regulations is replaced by “Consolidation of proceedings”.

4. Section 10 of the Regulations is replaced by the following:

Time for making complaint

10. (1) A complaint must be received by the Tribunal no later than 15 days after

  1. (a) the day on which the complainant receives notice of the lay-off, revocation, appointment or proposed appointment to which the complaint relates; or
  2. (b) the date specified in the notice, if it is a public notice.

Receipt of complaint

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

  1. (a) if the complaint is sent by electronic means such as electronic mail or fax transmission, the day on which it is sent;
  2. (b) if the complaint is sent by courier or delivered by hand, the day on which it is received; or
    (c) if the complaint is sent by mail, the day that is
    1. (i) the date of the postmark or the date of the postage meter impression authorized by the Canada Post Corporation, or
    2. (ii) if both the postmark and the postage meter impression appear on the envelope, the later of them.

5. (1) The portion of section 11 of the French version of the Regulations before paragraph (a) is replaced by the following:

Forme et contenu de la plainte

11. La plainte est déposée par écrit auprès du directeur exécutif; elle comporte les éléments suivants :

(2) Paragraphs 11(a) and (b) of the Regulations are replaced by the following:

  1. (a) the name, telephone number and fax number of the complainant, and a mailing address or electronic mail address that can be disclosed to all parties;

(3) Paragraph 11(e) of the Regulations is replaced by the following:

  1. (e) a copy of the notice of lay-off, revocation, appointment or proposed appointment to which the complaint relates;

(4) Paragraph 11(h) of the Regulations is replaced by the following:

  1. (h) a full factual description of the events, circumstances or actions giving rise to the complaint, to the extent known by the complainant;

6. Sections 12 to 14 of the Regulations are replaced by the following:

Procedure on receipt of complaint

12. On receiving the complaint, the Executive Director must acknowledge its receipt and send a copy of it and all supporting documents to the deputy head or the Commission.

Names and addresses of parties

13. Within 10 days after receiving a copy of the complaint and all supporting documents, the deputy head or the Commission must provide the Executive Director with the names and business addresses of the other parties, including their electronic mail addresses, if any.

Copies to be provided

14. On receiving the names and addresses of the other parties, the Executive Director must send a copy of the complaint and all supporting documents to each of the other parties.

7. (1) Paragraphs 15(1)(a) and (b) of the French version of the Regulations are replaced by the following:

  1. a) le plaignant l’informe de son intention de ne pas y participer dans les vingt-cinq jours suivant la date de l’accusé de réception de la plainte par le directeur exécutif;
  2. b) l’administrateur général ou la Commission, selon le cas, l’informe de son intention de ne pas y participer dans les vingt-cinq jours suivant la réception d’une copie de la plainte.

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

Request to mediate

(2) The complainant, the deputy head or the Commission may, with the agreement of the other party, request mediation of the complaint by informing the Executive Director of that request before the date of the hearing.

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

Order to exchange information

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

9. Section 17 of the Regulations is replaced by the following:

ORDER TO PROVIDE INFORMATION

Request for order to provide information

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

Form and content of request

(2) The request for an order to provide information must be in writing and must include

  1. (a) the name, address, telephone number, fax number and electronic mail address of the party making the request;
  2. (b) the Tribunal’s file number for the complaint to which the request relates;
  3. (c) a list specifying the documents or information requested;
  4. (d) a detailed explanation as to why each requested item is relevant to the complaint; and
    (e) the date of the request.

Suspension of time

(3) Any time that is specified in these Regulations in relation to a complaint, notice or document is suspended until the Tribunal renders a decision respecting the request for an order to provide information.

Order to provide information

(4) The Tribunal must order that the complainant, the deputy head or the Commission be provided with the information if the Tribunal determines that the information may be relevant and that its provision will not

  1. (a) threaten national security;
  2. (b) threaten any person’s safety; or
  3. (c) affect the validity or continued use of a standardized test, or any part of such a test, or distort the results of a standardized test by giving an unfair advantage to any individual.

Conditions

(5) The Tribunal may make the order to provide information subject to any conditions that it determines are necessary, including any conditions that are necessary to prevent any of the risks referred to in paragraphs (4)(a) to (c).

Duration of conditions

(6) The conditions apply before and after the hearing or after any other resolution or disposition of the complaint.

RESTRICTION ON USE OF INFORMATION

10. Section 18 of the English version of the Regulations is replaced by the following:

Use of information obtained

18. Any information obtained under sections 16 and 17 may be used only for purposes of the complaint.

11. (1) Paragraphs 19(2)(a) and (b) of the Regulations are replaced by the following:

  1. (a) the applicant’s name, address, telephone number and fax number, and a mailing address or electronic mail address that is to be used for sending documents to the applicant;

(2) Paragraph 19(4)(b) of the French version of the Regulations is replaced by the following:

  1. b) le fait que le requérant défend une position déjà soutenue devant le Tribunal;

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

Notice of issue

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

(2) Paragraph 20(1)(b) of the Regulations is replaced by the following:

  1. (b) the complainant’s name, telephone number and fax number, and a mailing address or electronic mail address that can be disclosed to all parties;

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

Intention de présenter des observations

(3) Dans les quinze jours suivant la réception de l’avis, la Commission canadienne des droits de la personne avise le directeur exécutif de son intention de présenter ou non des observations concernant la question visée à l’alinéa (1)d).

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

Forme et contenu de l’objection

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

(2) Paragraphs 21(2)(d) to (f) of the Regulations are replaced by the following:

  1. (d) the facts and any documents on which the objecting party relies in making the objection; and
  2. (e) the date of the objection.

14. (1) Subsection 22(1) of the French version of the Regulations is replaced by the following:

Délai

22. (1) Le plaignant présente ses allégations aux autres parties, au directeur exécutif et, le cas échéant, aux intervenants et à la Commission canadienne des droits de la personne, si celle-ci a le statut de participant, dans les dix jours suivant l’expiration de la période prévue pour la communication de renseignements.

(2) Paragraph 22(2)(a) of the Regulations is replaced by the following:

  1. (a) the complainant’s name, telephone number and fax number, and a mailing address or electronic mail address that can be disclosed to all parties;

(3) Subsection 22(2) of the Regulations is amended by adding “and” at the end of paragraph (d) and by repealing paragraph (e).

(4) Subsection 22(3) of the Regulations is replaced by the following:

Failure to provide allegations

(3) If the complainant fails to provide allegations, the Tribunal may dismiss the complaint.

15. (1) Subsection 23(1) of the Regulations is replaced by the following:

New or amended allegation

23. (1) The Tribunal must, on request, permit the complainant to amend an allegation or provide a new allegation if

  1. (a) the amendment or new allegation results from information obtained that could not reasonably have been obtained before the complainant submitted his or her original allegations; or
  2. (b) it is otherwise in the interest of fairness to do so.

(2) Paragraph 23(2)(a) of the Regulations is replaced by the following:

(a) the name, telephone number and fax number of the complainant, and a mailing address or electronic mail address that can be disclosed to all parties;

(3) Paragraph 23(2)(d) of the French version of the Regulations is replaced by the following:

  1. d) un énoncé détaillé des raisons pour lesquelles le plaignant n’a pas, au départ, inclus l’allégation ou pour lesquelles il a besoin de modifier ses allégations initiales, selon le cas;

(4) Subsection 23(2) of the Regulations is amended by adding “and” at the end of paragraph (e) and by repealing paragraph (f).

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

Deadline for reply

24. (1) The deputy head or the Commission, as respondent, must provide its reply to each of the other parties, to the Executive Director, to each of the intervenors, if any, and to the Canadian Human Rights Commission, if it is a participant, no later than 15 days after receiving the complainant’s allegations or amended allegations.

(2) The portion of subsection 24(2) of the French version of the Regulations before paragraph (a) is replaced by the following:

Forme et contenu de la réponse

(2) La réponse est présentée par écrit et comporte les éléments suivants :

(3) Subsection 24(2) of the Regulations is amended by adding “and” at the end of paragraph (d) and by repealing paragraph (e).

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

Other parties may reply

25. (1) If another party wishes to participate in the hearing, he or she must provide his or her reply to the complainant, to the deputy head or the Commission, to the Executive Director, to the other parties, to each of the intervenors, if any, and to the Canadian Human Rights Commission, if it is a participant, no later than 10 days after receiving the reply of the deputy head or the Commission.

(2) The portion of subsection 25(2) of the French version of the Regulations before paragraph (a) is replaced by the following:

Forme et contenu de la réponse

(2) La réponse est présentée par écrit et comporte les éléments suivants :

(3) Subsection 25(2) of the Regulations is amended by adding “and” at the end of paragraph (d) and by repealing paragraph (e).

18. (1) Paragraph 26(2)(a) of the Regulations is replaced by the following:

  1. (a) the complainant’s name, telephone number and fax number, and a mailing address or electronic mail address that can be disclosed to all parties;

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

Avis aux autres parties et aux intervenants

(3) Dès qu’il est informé du retrait de la plainte, le directeur exécutif en avise les autres parties et, le cas échéant, avise les intervenants et la Commission canadienne des droits de la personne, si celle-ci a le statut de participant, du retrait de la plainte et de la fermeture du dossier.

19. The marginal note to section 29 of the French version of the Regulations is replaced by “Défaut de comparution”.

COMING INTO FORCE

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

REGULATORY IMPACT
ANALYSIS STATEMENT

(This statement is not part of the Regulations.)

Description

The Public Service Employment Act (PSEA) constitutes Part 3 of the Public Service Modernization Act (S.C. 2003, c. 22) and empowers the Public Service Staffing Tribunal (the “Tribunal”) to make regulations of general application providing for the practice and procedure before the Tribunal, including

  • the manner in which and the time within which a complaint may be made;
  • the procedure for the hearing of complaints;
  • the time within which, and the persons to whom, notices and other documents must be given in relation to complaints and when the notices are deemed to have been sent, given or received;
  • the manner of giving notice of an issue to the Canadian Human Rights Commission; and
  • the disclosure of information obtained in the course of an appointment or a complaint proceeding under the PSEA.

Following extensive consultation with its stakeholders in 2005, the Tribunal established the Public Service Staffing Tribunal Regulations (the “Regulations”), which came into force on December 23, 2005.

The Regulations contain rules of practice and procedure regarding the following subjects: interpretation, application, general provisions, making a complaint, alternate dispute resolution processes, intervenors, notice to the Canadian Human Rights Commission, time period for raising timeliness objection, allegations, reply from the Deputy Head or the Commission, other parties’ replies, withdrawal of complaint and the hearing.

Following consultation with its stakeholders after operating under the original provisions and in response to issues raised by the Standing Joint Committee for the Scrutiny of Regulations, the Tribunal amended the Regulations in order to ensure greater clarity of their content, correct inconsistencies between the English and French versions and allow increased flexibility in some areas. A description of some of the key changes follows:

  • Sections 5 and 6 have been replaced with an all-inclusive section that provides specifically that parties will be given the opportunity to provide submissions regarding requests to extend or reduce time lines. In practice, parties were given the opportunity to provide their submissions but the Regulations did not contain a specific provision to that effect.
  • To provide sufficient time to persons living in remote areas to send complaints to the Tribunal, paragraph 10(2)(c) was amended so that if the complaint is sent by mail, it is considered to have been received by the Tribunal on “the day that is the date of the postmark or the date of the postage meter impression authorized by the Canada Post Corporation or if both the postmark and the postage meter impression appear on the envelope, the later of them.”
  • A number of provisions were amended to specify that the contact information, such as telephone number, fax number mailing address or electronic mail address, provided by the complainant to the Tribunal must be information that can be disclosed to the parties.
  • Paragraph 11(e) was amended to ensure that a complainant submits “a copy of the notice of lay-off, revocation, appointment or proposed appointment to which the complaint relates” with his/her complaint so that the Tribunal may determine whether time limits have been respected and whether the Tribunal has jurisdiction to deal with a particular complaint.
  • Paragraph 11(h) was amended to ensure that “a full factual description of the events, circumstances or actions giving rise to the complaint to the extent known by the complainant” is provided in order to allow for the possibility that a complainant may have very little information about a particular process at the time that the complaint is made.
  • Sections 12, 13, and 14 were amended to ensure that a complainant is aware that a copy of his/her complaint along with any “supporting documentation” will be sent to the other parties involved in the complaint.
  • Section 13 was amended to provide the respondent 10 days, instead of 5, in which to provide the names of the other parties to the Tribunal.
  • The following subsection was added to section 17 to confirm established practice: “Any time that is specified in these Regulations in relation to a complaint, notice or document is suspended until the Tribunal renders a decision respecting the request for an order to provide information.”
  • Subsection 22(3) was amended to make its intent clearer: “If the complainant fails to provide allegations, the Tribunal may dismiss the complaint.”
  • Subsection 23(1) was amended to include a provision whereby a complainant may amend an allegation or provide a new one if the Tribunal finds it is “otherwise in the interest of fairness to do so.”

Alternatives

The Regulations represent the most appropriate instrument to which the Tribunal’s stakeholders may refer for information regarding the Tribunal’s complaint process. Section 109 of the Public Service Employment Act authorizes the Tribunal to make regulations in order to ensure a legally enforceable mechanism upon which the parties can rely to ensure predictability and fairness in the proceedings before the Tribunal. The original Regulations were reviewed so that certain concerns about the complaint process could be addressed.

Benefits and costs

These Regulations relate solely to the Tribunal’s practices and procedures. No additional costs to the Government or to those covered by the Regulations are expected and no additional resources are necessary to ensure compliance and enforcement. It is expected that the amendments address the concerns of the stakeholders to the extent possible and that they assist the parties and the Tribunal in managing the complaint process more efficiently.

Consultation

Based on the first full year of the Tribunal’s operations, various amendments to the Regulations were proposed by an internal working group in order to ensure that its provisions are readily understood and that complaints to the Tribunal are dealt with fairly and efficiently. A copy of the Regulations containing the proposed changes was sent to the Tribunal’s stakeholders — deputy heads, central agencies and bargaining agents — for comment in September 2007. Several organizations provided the Tribunal with feedback on the proposed amendments; their suggestions were considered and, in some cases, incorporated in the working draft. The draft amendments were submitted to the Department of Justice for review in late 2008. As well, the amendments address issues that were later brought to the Tribunal’s attention by the Standing Joint Committee for the Scrutiny of Regulations.

Compliance and enforcement

When rendering decisions related to a complaint before the Tribunal, the Tribunal will interpret and apply the Regulations in accordance with the principles established in the Public Service Employment Act for the conduct of appointment processes, such as fairness, access and transparency.

Coming-into-force

These Regulations come into force on the day of their registration.

Contact

Josée Dubois
Executive Director and General Counsel
Public Service Staffing Tribunal
240 Sparks Street, 6th Floor West
Ottawa, Ontario
K1A 0A5
Telephone: 613-949-5511

Footnote a
S.C. 2003, c. 22, ss. 12 and 13

Footnote 1
SOR/2006-6