On October 23, 2020, the Treasury Board of Canada and the Public Service Alliance of Canada (bargaining agent) signed a Phoenix pay system damages agreement (“2020 MOA on Damages”). Clause 43 of the 2020 MOA on Damages provides that either party may request that a grievance for damages for severe impacts and other demonstrable cases (referenced in this guide as grievances) proceed by way of formal adjudication or the accelerated adjudication process. Further detail on the 2020 MOA on Damages may be found here.

The following outlines the accelerated adjudication process developed by the Federal Public Sector Labour Relations and Employment Board (the “Board”) in collaboration with the parties to the 2020 MOA on Damages”. The accelerated adjudication process is available for grievances covered by the 2020 MOA on Damages and for grievances processed pursuant to similar agreements for separate agencies.

The process described in this document applies only to those grievances identified as proceeding by way of the accelerated adjudication process.

The Oversight Committee(s) established by the signatories of the 2020 MOA on Damages and separate agencies who have signed on to the 2020 MOA on Damages (the “parties”) is responsible for the governance of the parties’ participation in the accelerated adjudication process.

The process set out in this document will only be amended by the Board. Any such amendments would be made following consultation of the parties.

Purpose

This document:

• Explains the procedure for the accelerated adjudication process, including when the accelerated adjudication process may be used; and
• Describes the Board’s role under the accelerated adjudication process.

Effective Date

The process covered by this guide is in effect from June 24, 2024 and until such a time as it is revoked by the Chairperson of the Board.

Authorities Stemming from the 2020 MOA on Damages

The 2020 MOA on Damages provides that:

• Grievances for damages resulting from Phoenix pay issues a) filed prior to the date of the 2020 MOA on Damages coming into force and which have not been resolved and b) grievances filed after the date of the 2020 MOA on Damages coming into force and which have not been resolved, are to be processed pursuant to the terms of the 2020 MOA on Damages (Clauses 30 and 31).
• A decision with respect to a claim under the 2020 MOA on Damages constitutes a final level grievance decision (Clause 26).

Mediation

Clause 43 of the 2020 MOA on Damages provides that grievances can be resolved through mutual agreement or mediation at any time in the process, prior to the decision. Cases may be subject to mediation to resolve all or some of the matters without a hearing where there is agreement by the parties. Any applicable time limits to the chosen recourse mechanism are suspended during the mediation process.

A mutual request for mediation services should be sent to mdrs-smrd@fpslreb-crtespf.gc.ca.

Accelerated Adjudication Process

Pursuant to the 2020 MOA on Damages, grievances following the accelerated adjudication process will be adjudicated as follows:

Grievances under sub-clauses 24 (a) to (c) and (f) (please refer to the 2020 MOA on Damages for the full description of those sub-clauses)

Grievances under sub-clauses 24 (a) to (c), and (f) of the 2020 MOA on Damages shall be decided on the basis of an agreed statement of facts, including agreed documents, and written submissions. This includes grievances pertaining to:

• (a) Non-speculative investment losses related to Phoenix;
• (b) Non-speculative lost RRSP deferred taxation on missed net pay including severance or pension payments;
• (c) Severance or pension payments: interest on outstanding loans, mortgages, credit cards, or other debt instruments;
• (f) Interest on delayed severance payments, delayed pension entitlements, missing pay.

The Board retains the discretion to order that a grievance under sub-clauses 24 (a) to (c), and (f) be subject to an oral hearing. It may make such an order of its own accord or in response to a request by one or both parties.

Grievances under sub-clauses 24 (d), (e), (g) to (k)

Grievances under sub-clauses 24 (d), (e), (g) to (k) of the 2020 MOA on Damages may be decided by way of an oral hearing, as determined by the Board in the exercise of its discretion. Grievances under these sub-clauses pertain to:

• (d) Current employees: documented use of sick and other paid or unpaid leave caused by illness;
• (e) Former employees: paid leave (except sick leave) or unpaid leave caused by illness;
• (g) Emergency replacement pay or priority pay retroactive to February 2016 (section 17 of Terms and Conditions of Employment);
• (h) Discriminatory practices under Canadian Human Rights Act;
• (i) Lost occupational capacity, lost security clearances, bankruptcy, significant credit rating impact;
• (j) Resignations as a consequence of loss of income leading to financial hardship;
• (k) Mental anguish or trauma which interfered to a profound degree with ability to lead a normal life.

Grievances under sub-clause 24 (l)

Grievances under sub-clause 24 (l) of the 2020 MOA on Damages, may be decided on the basis of a) an agreed statement of facts, including agreed documents, and written submissions; or b) by oral hearing, as determined by the Board in the exercise of its discretion. The Board may make this determination of its own accord or in response to a request by one or both parties. Grievances under this sub-clause pertain to:

• (l) Other damages in nature of the above for comparable personal hardship or impact.

Description of the Accelerated Adjudication Process

The provisions of the accelerated adjudication process are as follows:

• 1. The bargaining agent is responsible for:
  • a. Submitting to the Board the Notice of Reference to Adjudication of an Individual Grievance form, through the E-Filing portal, and indicating:
    • i. Referral of a Phoenix severe impact claim grievance;
    • ii. Choice of adjudication process: formal or accelerated;
    • iii. Interest in mediation; and
    • iv. Which sub-clause(s) of clause 24 of the 2020 MOA on Damages the grievance contests.
• 2. Parties to a grievance subject to the 2020 MOA on Damages already referred to the Board at the time of the coming into force of this process must inform the Board whether the parties agree the grievance will proceed to accelerated adjudication and which sub-clause(s) of clause 24 of the 2020 MOA on Damages the grievance contests.
• 3. The Chairperson of the Board will assign the matter to a Panel of the Board that may consist of one or three Board Members, as the circumstances warrant. Reference to a “Board Member” herein is deemed to include a Panel of the Board.
• 4. The assigned Board Member can convene a case management or settlement conference at any time in the accelerated adjudication process prior to decision.

Proceeding by way of evidence and submissions in writing

• 5. For matters proceeding by written submissions, dates for the filing of evidence (an agreed statement of facts and agreed documents) and submissions will be established by the Board.
• 6. After the date established by the Board for the filing of all submissions (or any revised date, as requested by the parties and ordered by the Board), the time limits for the issuance of a decision will commence.

Proceeding by way of an oral accelerated hearing

• 7. Oral hearings will be conducted by videoconference or in person. Parties to a grievance proceeding by way of oral hearing may submit a request with respect to the mode of that hearing.
• 8. Unless the Board otherwise determines, in-person hearings will be held in Ottawa.
• 9. As a general rule, an oral hearing following the accelerated process will be scheduled for one day but the Board Member may extend its duration if circumstances warrant.
• 10. The parties shall file an Agreed Statement of Facts and relevant documents with the Board at least 3 clear business days before the date of the hearing. After this time, additional documentation may only be submitted with the approval of the Board.
• 11. As a party to the grievance, a grievor has the right to attend an oral hearing of his or her grievance. If the hearing is in-person, a grievor outside of the National Capital Region will be able to attend by audioconference or videoconference, depending on the available technological resources.
• 12. After the oral hearing ends, and after the date established by the Board for filing any additional written submissions (if applicable), the time limits for the issuance of a decision will commence.

Principles applicable to both written and oral accelerated hearing

• 13. After the Board has received final submissions in writing or orally, the Board will issue a decision in writing within 40 working days, unless the parties consent to a longer period or if the Board determines that circumstances warrant a longer period.
• 14. The Board’s decision is final and binding on all parties. Decisions rendered through the accelerated adjudication process are only to be relied on by the parties in other severe impact claim grievances which follow the accelerated adjudication process.