Legal doctrines barred the four grievances, arbitrator finds
The Ontario Superior Court of Justice has ruled that an arbitrator reasonably refused to hear four grievances arising from health and safety concerns amid a COVID-19 outbreak at the Ontario Correctional Institute, given the similarity among issues and parties.
The case of Ontario Public Service Employees Union v. Ontario (Solicitor General), 2025 ONSC 1801 arose when the applicant union asked an inspector to issue an order under Ontario’s Occupational Health and Safety Act, 1990 (OHSA) against the employer.
The case revolved around four matters. In the first matter, the union alleged that the employer failed to provide its employees with personal protective equipment (PPE) when inmates showed “influenza-like” symptoms and thus failed to take every precaution necessary to protect them.
In the second matter, the union argued that the employer failed to give it the appropriate and necessary information about a workplace hazard under s. 25(2)(a) of the OHSA, including daily updates on the number of positive COVID-19 tests in the workplace.
The third matter was rooted in a work refusal by the correctional officers after the employer allegedly failed to provide masks as PPE for the officers tasked with transferring inmates in early April 2020.
The fourth matter involved the union’s claim that the employer failed to comply with its obligation under s. 52(2) of the OHSA to notify the Joint Health and Safety Committee about the details of a situation where an employee has contracted an occupational illness.
The inspector made the following findings:
The union filed four grievances alleging violations of the OHSA and the collective agreement in these matters. In each grievance, the union argued that a work requirement was unsafe in light of the COVID-19 pandemic. The employer moved to dismiss the grievances based on issue estoppel, abuse of process, and/or collateral attack.
In May 2024, an arbitrator at the Grievance Settlement Board (GSB) refused to hear the four grievances on the ground that the doctrines of issue estoppel and collateral attack barred them.
The union requested judicial review of the GSB’s allegedly unreasonable decision. The Superior Court of Justice of Ontario dismissed the application seeking judicial review.
Regarding issue estoppel, the court ruled that the arbitrator correctly identified and applied the two-part test for the doctrine when he considered the three preconditions for issue estoppel, decided that these preconditions were present, then weighed whether to exercise his discretion to refuse to apply issue estoppel.
The court held that the arbitrator balanced the need for finality against any potential unfairness in exercising his discretion to refuse to apply issue estoppel and reasonably refused to hear the grievances due to similarity in the issues and parties.
The court added that the arbitrator reasonably saw “little unfairness” in requiring the union to follow through with the chosen process rather than allowing it to go for a different one, given that it already opted for the inspector route to address the health and safety concerns.
The court noted that the arbitrator considered the principles underlying the doctrine, including the general presumption of finality and the advancement of the interests of justice through avoiding duplicative proceedings.
The union argued that the Ontario Labour Relations Board would likely have deferred to the grievance process and that the GSB’s decision might deter unions and their members from accessing OHSA protections. The court found both these arguments speculative.
Lastly, regarding collateral attack, the court determined that the arbitrator reasonably interpreted and applied the doctrine. The court explained that the union ignored the statutory appeal mechanism when it challenged the inspector’s decision.
