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No. 3–Section 246.1 Reprisal Complaints

Rules of Procedure

This document describes the procedures that must be followed by a complainant (employee) who wishes to file a complaint with the Canada Industrial Relations Board (the CIRB or the Board) under section 246.1 of Part III (Standard Hours, Wages, Vacations and Holidays) of the Canada Labour Code (the Code).

It also describes the procedures to be followed by a respondent (employer) following receipt of the Board’s notice of the section 246.1 complaint. The procedures to be followed by a potential intervenor (e.g., the union) will also be described.

To ensure the timely processing of the complaint, it is important that these rules be reviewed carefully.

Should you have any questions concerning the Board’s procedure, you can contact a Board officer at 1-800-575-9696.

General

Pursuant to section 246.1(1) of the Code, an employee may file a complaint in writing to the Board if they believe that their employer has taken a reprisal or retaliated against them for exercising their rights under Part III of the Code.

If the Board determines that a complaint is justified, the Board may, by order, require the employer to:

  • cease engaging in or to rescind the reprisal;
  • permit the employee to return to the duties of their employment;
  • reinstate the employee;
  • pay compensation for any loss of remuneration by the employee;
  • pay compensation for any financial or other penalty imposed on the employee; and
  • do any other thing that the Board considers equitable for the employer to do to remedy or counteract any consequence of the reprisal.

For further information about section 246.1 reprisal complaints, please consult the Board’s Information Circular No. 14–Section 246.1 Reprisal Complaints.

For copies of the Code and the Canada Industrial Relations Board Regulations, 2012 (the Regulations), rules of procedure, forms and information circulars, please visit the Board’s Official website.

Public Process

The information provided and any documents submitted to the Board are collected solely for the purpose of administering the Code and will be used to deal with and adjudicate the complaint. Parties that engage the Board’s services should be aware that this is a public process. Documents filed with the Board will be placed on the public record, with the exception of documents that the Board declares to be confidential pursuant to section 22 of the Regulations. The Board provides public access to case files and posts key decisions on its website. The final decision may identify parties and witnesses by name and may include information about them that is relevant and necessary to the determination of the dispute. For sensitive information, a request can be made to the Board for a Confidentiality Order. See Information Circular No. 12 for the Board’s Policy on Openness and Privacy.

Filing a Reprisal Complaint with the CIRB

A complaint filed pursuant to section 246.1 of the Code shall be made to the Board not later than 90 days after the day the employee knew or, in the Board’s opinion, ought to have known of the action or circumstances giving rise to the complaint.

Although section 16(m.1) of the Code allows the Board to extend the 90-day time limit, the Board will only do so in exceptional circumstances. If the employee would like the Board to consider extending the 90-day time limit, they must explain the exceptional circumstances that they feel the Board should consider in deciding whether or not to exercise its discretion. Supporting documentation should be provided if available.

An employee must submit the following information and documents with the Board when filing the complaint:

  1. A completed Reprisal Complaint Form;
  2. A copy of any relevant supporting document.

If any of this information or documentation is not available, a written explanation must be provided by the employee when filing the complaint.

It is strongly recommended that an employee use the Section 246.1 Reprisal Complaint Form. It asks for the necessary information that the Board needs in order to consider and determine the complaint. Not completing this form may cause delays in the complaint process.

The Board has an e-filing Web Portal (Portal) service, which allows an employee to file their PDF documents in the Board’s centralized document filing system. If the employee chooses to file their document electronically using the Portal, they should not forward a hard copy of the same document to the Board. The electronic version will be considered the original copy.

The complaint may also be filed by courier, mail, registered mail, or in person at one of the Board’s locations in Vancouver, Toronto, Montréal, Dartmouth or Ottawa. In accordance with the Board’s Regulations, the complaint will be considered filed as of the date the Board receives the complaint or, when registered mail is used, the date the complaint was mailed to the Board.

Notice of the Complaint by the Board

After the complaint is received, the CIRB will send the employee and employer an acknowledgment letter acknowledging receipt of the complaint and will include a copy of the complaint and all relevant documents. The letter will also inform the employee and the employer of the name and contact information of the Industrial Relations Officer (IRO) appointed to the complaint. The IRO is responsible for managing the file and assisting the parties in reaching a settlement. For more information on the role of the IRO, please consult the Board’s Information Circular No. 1–The Role of the Board’s Industrial Relations Officers.

If the employee is represented by a union, the CIRB will notify the union in writing of the complaint and provide a copy of the complaint to the union. Shortly after sending the Board’s acknowledgment letter, the IRO will contact the employee and employer to explain the Board’s processes, answer any questions they might have and discuss any issues that could arise during the conduct of the file.

Employer’s Obligations

Pursuant to sections 9 and 12 of the Regulations, the employer (respondent) will have 15 days from receipt of the acknowledgment letter to file a response.

Employee’s Obligations

Pursuant to sections 9 and 12 of the Regulations, upon receipt of the employer’s response, the employee (complainant) will have 10 days to file a reply.

Request for Oral Hearing

In accordance with section 10(g) of the Regulations, any request for an oral hearing must include the reasons for the request. Please note that, in any event, the Board is empowered under section 16.1 of the Code to decide any matter before it without holding an oral hearing. In such a case, the Board would determine the complaint based on the written submissions of the parties (employee, employer). It is therefore in the parties’ best interests to file complete, accurate and detailed submissions and include all relevant information and documents in support of their respective positions.

Time Limits

The CIRB may refuse to consider any responses or replies received after the prescribed time limit.

Extension of the Time Limits

To ensure the timely processing of matters before the Board, and in furtherance of the objectives of the Code, the Board’s practice is not to grant extensions of the time limits for filing a response or a reply, except in exceptional circumstances. If you must request an extension of time limits, you must first contact the other parties and obtain their agreement, before making a request to the Board.

Exchange of Documents

Pursuant to section 23 of the Regulations, parties must deliver to the other party/parties a copy of any response, reply or other document filed with the Board and advise the Board in writing of the time and manner of this delivery, which is called service. The manner of service includes delivery by fax, by courier, or in person. You may also deliver the document by mail or registered mail, but these may lead to delays in processing the complaint.

Request to Intervene Filed by Union

Upon notification of the complaint by the CIRB, if the union wishes to participate in the proceedings, it must file a request to intervene with the Board within 15 days of receipt of the Board’s letter. Pursuant to section 23 of the Board’s Regulations, the union will provide a copy of the request to intervene to the employer and employee. The employer and the employee will have 10 days from receipt of the request to intervene to file a response. Upon receipt of a response, the union will then have 5 days to file a reply. The request to intervene, response(s) and reply will then be referred to the Board for consideration.

If the union’s request to intervene is granted, it will become a party to the complaint and will be asked to file written submissions on the merits of the case. The other parties will then have an opportunity to respond. When a request to intervene is filed, it may result in a delay in the processing of the complaint.

Request for Production or Disclosure of Documents

Pursuant to section 21(1) of the Regulations, if a party seeks to have another party disclose documents that are relevant to the complaint before the Board, the request must first be made in writing to the other party, before applying to the Board for an order requiring disclosure.

Mediation Meeting

The IRO will communicate with the parties in order to arrange a mediation meeting to assist the parties in attempting to resolve the dispute. This mediation meeting is voluntary and the information acquired by the officer in the mediation process shall remain confidential and shall not be divulged to the Board.

Pre-Hearing Conference

Pursuant to section 16(a.1) of the Code, the Board has the power to schedule and hold pre-hearing conferences with the parties to discuss both preliminary and substantive issues relating to the complaint. The pre-hearing conferences are normally conducted via teleconference, although videoconferences and in-person meetings are also used in some cases.

The pre-hearing conference is considered an integral part of the hearing process. Parties are expected to attend the pre-hearing conference prepared to discuss and address both preliminary and substantive aspects of the matter before the Board. Any Board decisions or rulings made at the pre-hearing conference are binding on all parties.

If the Board decides to schedule a pre-hearing conference, the parties will be advised of the date, time, location and other information (e.g., teleconference dial-in procedures) for the pre-hearing conference as soon as possible.

Pursuant to section 47(2) of the Regulations, if a party does not attend a pre-hearing conference after having been given notice, the Board may proceed and decide the matter in the party’s absence.

Oral Hearing

If the Board finds it necessary to schedule an oral hearing, the parties will be advised of the time and place of the hearing as soon as possible. Although a hearing may be scheduled, this does not preclude a settlement of the complaint by the parties at any time.

Adjournment or Postponement Requests

The logistical difficulties caused by the Board’s heavy caseload and its geographically widespread and bilingual community render it very difficult to reschedule dates in an orderly and timely fashion. The Board is therefore very reluctant to accede to requests for postponement of its proceedings.

If a party requires a rescheduling of a hearing, that party must first consult with the other party/parties as described in the Board’s Information Circular No. 4–Board Hearings, which is available on the Board’s Official website.

Suspension of the Complaint

Section 246.2(1) of the Code provides that the Board may suspend consideration of a complaint if it is satisfied that the employee must first take certain measures (e.g., provide additional information, make an attempt to resolve the issue through mediation). If the Board determines it appropriate to suspend the complaint, it will inform the employee in writing and specify the measures that must be taken and the deadline for doing so.

Rejection of the Complaint

Section 246.3(1) of the Code provides that the Board may reject a reprisal complaint under certain circumstances. These circumstances include complaints that are not within the Board’s jurisdiction; complaints that the Board deems to be frivolous, vexatious or not made in good faith; complaints that have already been settled or dealt with through other recourse; and complaints that should be resolved through other means, including a collective agreement’s grievance and arbitration provisions. The Board may also reject a complaint that was suspended if the employee has not taken the required measures within a specified period. The Board will notify the employee in writing, with reasons, if it decides to reject the complaint on one of these grounds.

External Adjudicators

In the adjudication of section 246.1(1) complaints, the Chairperson of the Board may appoint a member of the CIRB or an external adjudicator to hear and determine the complaint. Members of the CIRB and external adjudicators have all the powers, duties and functions conferred on the CIRB by the Code regarding any matter to which they have been appointed, and their orders and decisions are considered to be the Board’s orders and decisions.

Decision of the Board

The Board will notify the employee and the employer in writing of its decision, with reasons. A copy of the Board’s decision will also be provided to a party that has been granted intervenor status. All key decisions of the CIRB are published on its Official website.

July 2019