Sameh Boshra did something radical this week. Boshra, who was fired from his job as an analyst at Statistics Canada in 2009, flipped on a digital recorder at a hearing of the Public Service Labour Relations Board and refused to turn it off. That brought the hearing, which had been scheduled to last three days, to an abrupt halt.
Unlike the courts, the quasi-judicial PSLRB does not record its proceedings. Nor does it allow anyone else to do so. So when Boshra pressed the record button, something had to give. And it did.
“If that’s a recording device, I’m going to have to ask you to turn it off,” board member Beth Bilton sternly informed Boshra.
When Boshra declined to do so, Bilton told him the hearing — convened to deal with Boshra’s complaint that his union, the Canadian Association of Professional Employees, unreasonably refused to represent him at his dismissal grievance — could not continue.
“If you wish to refuse to have this hearing simply because it’s being recorded, then that speaks to the intent of the board,” Boshra shot back.
Boshra notified the PSLRB in advance that he would be challenging the constitutionality of the board’s no-recording policy. As Boshra’s recorder ran in defiance of her order, Bilton agreed to hear his arguments, saying she would provide a written decision later.
After Boshra finished his constitutional case, Bilton again insisted that he turn off his recorder. “I’m not going to depart from the board’s policy at this point,” she said. Asked if he was willing to proceed without recording the proceedings, Boshra replied: “Absolutely not.” That ended the hearing after less than an hour.
Boshra said his action was no mere stunt. “The only reason I want to record it is to actually get a fair hearing,” he said in an interview. “I’ve been through this wringer before. I know that what goes in isn’t necessarily reflective of what comes out. And I wanted to address that issue.”
Last July, the PSLRB rejected Boshra’s argument that Statistics Canada acted in bad faith when it dismissed him after two years in what it claimed was a probationary position. Among other things, the board found the agency “had a bona fide dissatisfaction with his suitability.”
But Boshra said critical evidence that supported his case was “remarkably absent” from the board’s decision. “No reasonable person listening to a recording of that hearing would believe that conclusion,” he told Bilton.
The problem is, due to board policy, no such recording exists. And that, Boshra said, is a breach of procedural fairness and natural justice that violates the Charter of Rights and Freedoms.
The absence of a proper record also makes it harder to successfully challenge PSLRB decisions in Federal Court, as Boshra is trying to do with his dismissal.
Earlier this month, as the hearing into Boshra’s complaint against his union approached, he asked the board to record it and provide him with a copy. It declined, saying “it is not the board’s policy to record its proceedings.”
It followed that up with what Boshra described as an “intimidating” directive: “There will be no recording of the hearing; not by the board nor by Mr. Boshra or any other party.”
Boshra has asked for a copy of the board policy, but has yet to receive one. Indeed, it’s unclear whether a written policy even exists. Bilson told Boshra the prohibition on taping was both a policy and a practice, explaining that it was “a process of iteration and discussion within the board.”
In the absence of a recording, the board member who presides at a hearing takes notes, which are not made available to the parties or the public, the board’s website says. “Parties wishing a record of proceedings are advised to take notes,” it adds.
In 2009 and 2010, the board ran a 12-month pilot project in which four board members recorded testimony and discussions at some hearings. But after the pilot ended, it was back to business as usual.
Given that the PSLRB professes to want to foster transparency, accountability and fairness in its proceedings, Boshra can’t fathom the board’s position. “If you’re claiming these hearings are open and transparent, what’s the issue with recording?”
The real purpose, he suggested, can only be to insulate the senior bureaucrats who testify at board hearings from public scrutiny.
If the PSLRB rejects his constitutional argument, Boshra plans to challenge the decision in Federal Court. But he won’t be able to afford a lawyer.
“I’m tapped out. That’s how they win, ultimately,” he said. “Every public servant is in the same situation.”