Applying for an Extension of Time to Present a Grievance or Refer a Grievance to Adjudication

The Public Service Labour Relations Act (PSLRA) (section 225) states that a grievance may not be referred to adjudication or heard by an adjudicator until it has been properly presented at all the required levels of the grievance process that applies.

Section 61 of the Public Service Labour Relations Board Regulations (the Regulations) provides that the time limits for presenting a grievance at any level of the grievance process may be extended, either before or after the expiry of the times set out in Part 2 of the PSLRA or in a grievance procedure contained in a collective agreement. This may be done by agreement between the parties or by the Chairperson, in the interest of fairness, on the application of a party. This also applies to time limits for referring a grievance to adjudication and for providing or filing a notice, reply or document.

In cases where there appears to be an issue about whether a grievance has been properly presented at all the required levels under a grievance process, the Chairperson may decline to refer the grievance to an adjudicator until that issue is addressed (see subsection 223(2) and section 225 of the PSLRA).

Moreover, if the responding party files an objection stating that either the presentation of the grievance at a required level of the grievance process or its reference to adjudication was not timely, that objection should be addressed before the grievance is heard on its merits. Should the applying party believe that an objection to timeliness might be raised, an extension of time could be sought.

Under the Regulations (paragraph 61(b)), the Chairperson may, in the interest of fairness, extend the time to present a grievance at a level of the grievance process or to refer a grievance to adjudication. According to jurisprudence, five criteria must be assessed in order to determine when it is fair to exercise the Chairperson’s discretion and extend a time limit:

• clear, cogent and compelling reasons for the delay;
• the length of the delay;
• the due diligence of the applicant;
• balancing the injustice to the applicant, in denying an extension, against the prejudice to the respondent in granting an extension; and,
• the chance of success of the grievance.

For more information…

Please consult the following decisions for information on how the five criteria were assessed:

• Richard v. Canada Revenue Agency, 2005 PSLRB 180
• Vidlak v. Treasury Board (Canadian International Development Agency), 2006 PSLRB 96
• Martel and Carroll v. Treasury Board (Correctional Service of Canada), 2007 PSLRB 35
• Thompson v. Treasury Board (Canada Border Services Agency), 2007 PSLRB 59