GSB# 2021-3327

UNION# 2021-0649-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Stanley)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources and Forestry)

Employer

BEFORE

Adam Beatty

Arbitrator

FOR THE UNION

Alex Zamfir Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Jonathan Rabinovitch Treasury Board Secretariat Legal Services Branch Counsel

HEARING

October 31, 2023

Decision

1The Grievor is employed by the Ministry of Natural Resources and Forestry (the “Ministry” or the “Employer”) in the classification of Pilot 4 Twin Otter (DHC6 Pilot). In or around November 22, 2021, the grievor was placed on an unpaid leave of absence, and was not assigned other duties, because he refused to disclose his Covid 19 vaccination status. The decision to place the grievor on an unpaid leave was the result of Transport Canada’s Mandatory Vaccination Policy - Interim Order Respecting Requirements for Civil Aviation No. 43 (“IO 43”). He grieves that decision. The grievance form was completed by the Grievor on December 6, 2021 but was not received by the Employer until January 19, 2022.

2The Employer has raised three preliminary objections to this grievance. First, the Employer argues that the grievance is untimely. Second, the Employer argues that the Union is seeking to expand the scope of the grievance and that as such it should not be permitted to proceed. Third, the Employer argues that the grievance does not disclose a prima facie violation of the Collective Agreement and therefore should be dismissed. This decision addresses these preliminary motions.

3As will become clear below, what IO 43 required and did not require is very much at issue in this grievance. That being said, for the purposes of this general summary, it is sufficient to note that the Employer understood IO 43 to require employees to disclose their vaccination status and to prohibit those who refused to do so (as well as those who confirmed they were not vaccinated) from accessing certain aerodromes, including those the grievor flew into and out of as part of his duties as a pilot. Based on its understanding of IO 43, the Employer implemented a rule requiring employees who would be physically present on any aerodrome to be vaccinated. As a result of the Ministry’s rule, the grievor effectively could not fly for the Ministry. The grievor was permitted to return to work on June 27, 2022.

A. Timeliness

(i) Position of the Ministry

4The Employer relies on Article 22.2 of the Collective Agreement. Article 22.2 reads as follows:

If the complaint or difference is not resolved at the local level an employee may file a grievance, in writing, through the Union, with their manager within thirty (30) days after the circumstances giving rise to the complaint have occurred or ought reasonably to have come to the attention of the employee, who will in turn forward the grievance to the designated management representative.

5The Employer also relied on Article 22.14.1 of the Collective Agreement. Article 22.14.1 states as follows:

Where a grievance is not processed within the time allowed or has not been processed by the employee or the Union within the time prescribed it shall be deemed to be withdrawn.

6The Employer notes that the grievor was put on an unpaid leave on November 22, 2021. Accordingly, the grievance should have been filed no later than January 6, 2022. However, as noted above it was not received until January 19, 2022, eight business days after the deadline established by Article 22.2 of the Collective Agreement.

7The Employer acknowledged that the delay was relatively short but argued that the grievance should be dismissed nonetheless. The Employer took the position there were a number of factors that supported its position.

8First, the Employer accepted, for the purposes of this motion, that it was the Union and not the grievor that was responsible for the late filing of the grievance. The Employer argued that that should not matter. The fact that it was the Union that was responsible for the delay is not a factor that should favour extending the time-limits. The Union is a party to the Collective Agreement. One of their responsibilities is to file grievances on behalf of their members. In this case they missed the deadline and, according to the Employer, they must now bear the consequences.

9Second, the Employer argued that the subject matter of the grievance favours dismissing the grievance. As will be set out below in more detail, the underlying subject matter of the grievance, according to the Employer, is back pay. The grievor is seeking back pay for the period of time he was placed on an unpaid leave (subject to his mitigation efforts). From the Employer’s perspective, because the grievance is, at the end of the day, only about money, it raises less significant issues than termination grievances, other grievances involving discipline or grievances raising human rights issues. As such, the prejudice the grievor will face if the grievance is dismissed for being untimely is not particularly significant.

10Third, the Employer argued that the words of the Collective Agreement had to be given meaning. The parties agreed to a specific time frame for the filing of grievances. Allowing the Union to disregard the time limits for no reason devalues the words agreed to by the parties. The Ministry also noted that the delay occurred at the outset of the grievance procedure thereby increasing the prejudice to the Ministry.

11The Employer acknowledged that I have jurisdiction under Article 22.14.7 of the Collective Agreement (by way of reference to section 48(16) of the Ontario Labour Relations Act) to extend the timelines but argued that there was no reason to do so in the circumstances. That statutory discretion may be exercised to extend time limits when there are reasonable grounds for the extension and the extension does not result in substantial prejudice to the opposing party. The Ministry argued that the Union had not provided any reason, other than the short length of the delay, to justify granting the extension requested. Accordingly, the grievance should be dismissed.

12The Employer relied on the following decisions in support of its position: Ontario Public Service Employees Union (Ng) and Ontario (Ministry of Government Services), GSB #2009-3379 (Mikus); Ontario Public Service Employees Union (Smith et al.) and Ontario (Ministry of Community and Social Services), GSB #2006-2107, 2006-2379 (Gray); Ontario Public Service Employees Union (Mazara) and Ontario (Ministry of Community Safety and Correctional Services), GSB #2009-1065 (Gray); B.C. Gas Utility Ltd. and Office & Professional Employees International Union, Local 378, (1998) 72 L.A.C. (4th) 150 (Kelleher); Helen Henderson Care Centre and Service Employees Union, Local 183, (1992) 1992 CanLII 14626 (ON LA), 30 L.A.C. (4th) 150 (Emrich).

(ii) Position of the Union

13The Union argues this is an appropriate case for the Board to exercise its discretion and to grant an extension to the time-limits for filing a grievance. The Union notes that the delay was only 8 days, that the reasons for the delay do not lie with the grievor, and that the issues raised by the grievance are important. Specifically, the Union characterized the grievance as raising issues related to the exchange of the grievor’s labour for remuneration and submitted that this is a fundamentally important issue.

14The Union noted that the grievance form was dated December 6, 2021. According to the Union, after some back and forth between the Union and the grievor, the Local inadvertently lost track of the timelines over the holidays. The grievor, however, followed up with the Union after it came to his attention that the Employer had not received his grievance. The Union also noted that after the grievance was filed, the Chief Steward for the Local followed up with the Employer to explain the delay in filing the grievance.

15The Union argued that the Employer would not be prejudiced if the extension was granted. In fact, the Union noted that the Employer did not allege prejudice.

16Turning to the importance of the issue raised by the grievance, the Union argued that at the time he filed the grievance, the grievor had been placed on unpaid leave of absence and did not know how long it would last. On the spectrum of grievances, the Union argued that being placed on an unpaid leave is a close second to being terminated. The grievor was being denied the ability to work for the Ministry and earn an income for an indefinite period of time.

17The Union also noted that this was the first time the grievor filed a grievance. Accordingly, he was not familiar with the process. And regardless, the delay was very short.

18The Union relied on the following cases in support of its position: Becker Milk Co. and Teamsters Local Union No. 647, (1978) 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217 (Burkett); Greater Niagara General Hospital and Ontario Nurses’ Association, (1981) 1981 CanLII 4449 (ON LA), 1 L.A.C. (3d) 1 (Schiff); Royal Crest Lifecare Group and Service Employees International Union, Local 204, (2000) 2000 CanLII 50245 (ON LA), 91 L.A.C. 389 (Craven); The United Brotherhood of Retail, Food, Industrial & Service Trades International Union and Mevotech LP, 2020 CanLII 68807 (ON LA) (Nyman); and Ontario Public Service Employees Union (Clark et al) and Ontario (The Ministry of Natural Resources and Forestry), 2018 CanLII 119575 (ON GSB) (Dissanayake).

(iii) Analysis

19Both parties relied on Arbitrator Burkett’s analysis in Becker Milk Co. In that decision, Arbitrator Burkett identified the following three factors that arbitrators should consider in determining whether it is appropriate to extend the time-limits for filing a grievance:

1. the reason for the delay;
2. the length of the delay; and
3. the nature of the grievance

20In his discussion of the interplay between these factors, Arbitrator Burkett stated as follows:

If the offending party satisfies an arbitrator, notwithstanding the delay, that it acted with due diligence, then if there has been no prejudice the arbitrator should exercise his discretion in favour of extending the time limits. If, however, the offending party has been negligent or is otherwise to blame for the delay, either in whole or in part, the arbitrator must nevertheless consider the second and third factors referred to above in deciding if reasonable grounds exist for an extension of the time limits. In so far as re Pamour Porcupine Mines Ltd. and U.S.W. (1976) 1976 CanLII 2174 (ON LA), 12 L.A.C. (2d) 122 (Dunn) stands for the proposition that the only factor to be considered is the “reasonableness of the excuse” for the delay, I respectfully disagree. The purpose of the section is to alleviate against technical bars. If the offending party has been negligent in its processing of the grievance but the delay has been of short duration an arbitrator would be permitted to rely on the short period of delay as constituting reasonable grounds for an extension. If the grievance involves the termination of an employee, as distinct from some lesser form of discipline, this is also an equitable consideration which must be taken into account, in deciding if there are reasonable grounds to extend the time limits. One arbitrator has gone so far as to state that in a discharge grievance,

there would have to be a very clear case of unexpected, unreasonable delay and prejudice to the employer before it would be proper to deprive the grievor of the right to a hearing on the merits. (Emphasis added by Arbitrator Burkett)

21Whether there are reasonable grounds to extend the time limits for filing a grievance requires a balancing of the factors outlined by Arbitrator Burkett. Having regard to the facts here, I am satisfied that it is appropriate to grant the extension and allow the grievance to proceed. Or, to put it somewhat differently, it is appropriate to deny the Ministry’s motion to dismiss this grievance on timeliness grounds.

22First, the length of the delay is relatively short. Any prejudice normally associated with a delay at the beginning of the grievance process is reduced if not eliminated as memories and information remain intact and available. Second, the grievor was not responsible for the delay. The record shows that the grievor was responsible for discovering the Local’s inadvertent error and was doing his best to get the grievance before the Employer as soon as possible thereafter.

23Third, the issue raised by the grievance is more serious than the Ministry argues. As set out above, the Ministry argued that this grievance was about back pay. That is too narrow a view. Conversely, I did not find the Union’s characterization of the grievance to be particularly helpful either. Many grievances raise issues of proper remuneration. Describing the issue as the exchange of the grievor’s labour for remuneration is not compelling. Rather, this unpaid leave is more akin to a lengthy suspension as, at the time the grievance was filed, the grievor did not know how long it would last. While the grievor’s leave without pay did not include the same disciplinary implications as a suspension, it was open-ended. Accordingly, the grievor was effectively being denied the opportunity to work for an indefinite period of time. That is a serious issue.

24Fourth, the Employer does not allege any prejudice as a result of the delay. In the circumstances, and given the issues, any prejudice is unlikely.

25Lastly, the Employer argued that granting the extension to file the grievance is effectively to read out sections 22.2 and 22.14.1 of the Collective Agreement. I do not agree. When interpreting collective agreement provisions, meaning must be found not only in the specific words used but also in the context of the collective agreement as a whole and any applicable legislation. In this case, that means that the sections relied on by the Employer must be read alongside Article 22.14.7 of the Collective Agreement and Section 48(16) of the Act. Therefore, while they agreed to a thirty day time limit they did so in the context of provisions (both in the Collective Agreement and the Act) that permit extensions to be granted where an arbitrator is satisfied that there are reasonable grounds to do so and the opposing party will not be substantially prejudiced. In the specific circumstances of this case I am satisfied that there are reasonable grounds to extend the time for the filing of this grievance. I am also satisfied that the Employer will not be prejudiced as a result. Accordingly, the Ministry’s motion to have this grievance dismissed on grounds of untimeliness is denied.

B. Impermissible Expansion

(i) Position of the Ministry

26The Employer’s second preliminary motion is a request that this grievance be dismissed because the position of the Union, as set out in particulars dated October 4, 2023, constitutes an impermissible expansion of the grievance. The Employer argued that the position being advanced by the Union in its particulars is very different from what is laid out in the grievance. The Ministry requests that all of the particulars be struck. The Employer argued that if this motion was successful there would be nothing left in the particulars that could substantiate the grievance. In the circumstances the grievance should therefore be dismissed.

27The grievance states as follows:

I grieve specifically but not exclusively that the employer is in violation of Articles 2, 3, 9, 21, 31 of the collective agreement, the Ontario Human Rights Code (OHRC) and any other policies, Acts or legislation that may apply when the employer failed to reassign me to other duties following the Transport Canada policy restricting access to airports and aviation to individuals vaccinated against covid-19, when the employer placed me on indefinite unpaid leave which may result in constructive dismissal, and when the employer prohibited me from discussing my unpaid leave with other individuals.

28The Articles of the Collective Agreement referred to in the grievance are the following:

• Article 2 – Management Rights
• Article 3 – No Discrimination/Employment Equity
• Article 9 – Health and Safety and Video Display Terminals
• Article 21 – Discipline and Dismissal; and
• Article 31 – Fixed-Term Employees

29The Ministry compared the issues raised in the grievance with those raised in the Union’s particulars. In summary, the Ministry argues that the particulars raise a new set of issues that are not present in the grievance, in that they focus exclusively on the Federal Transportation Orders (the “Orders”), in particular IO 43 (and subsequent iterations) in support of the Union’s assertion that had IO 43 been applied correctly, the grievor should have been allowed to fly during the period he was placed on an unpaid leave.

30According to the Ministry, none of the issues raised by the Union in the particulars are found in the grievance or were raised with the Employer prior to being set out in the particulars. Nor were they raised by the Union during the Formal Resolution Meeting on February 22, 2022. The Employer emphasized that at no time during that meeting did the Union raise any issue with respect to how the Ministry was applying IO 43 to the grievor.

31In addition, the Ministry notes that the grievor has been aware of the Employer’s position, that the grievor was unable to carry out his duties because he was not in compliance with IO 43, since at least November 12, 2021. The Ministry relied on an email from the Ministry to the grievor dated November 22, 2021 in support of its position. In that email, Mr. Rizzuto on behalf of the Ministry, referred both to a memo provided to the grievor on November 12, 2021, and a conversation with the grievor on November 15, 2021. According to the November 22, 2021 email, the grievor was advised, in both the memo and the conversation, that pursuant to IO 43 he had to be fully vaccinated in order to access aerodrome property and that anyone who had not received at least one vaccine by November 15, 2021 would be placed on an unpaid leave of absence. Notwithstanding being aware of the Employer’s position since that time, the grievor did not raise any issues with respect to the application of IO 43 until October 4, 2023, approximately two years later.

32The Employer relied on the decision in Ontario Public Service Employees Union (Lefkowitz) and Ontario (Ministry of Community Safety and Correctional Services), GSB #2010-2380 (Briggs). In that decision, the Board refused to allow the Union to expand the scope of the grievance before it. In that case, the grievor asserted that she had been verbally assaulted by a manager and a member of public. The grievor also alleged that the employer had failed to protect her and violated her rights under Bill 168. In the union’s particulars prior to the hearing, the grievor sought to include reference to gender as a contributing factor and to a poisoned work environment. The union also sought to include allegations with respect to the Human Rights Code and Article 3 of the Collective Agreement. Arbitrator Briggs held that in light of the failure of the union to make reference to either the Human Rights Code or Article 3 of the Collective Agreement in the actual grievance, and given that other statutes and provisions of the Collective Agreement were specifically referenced, it would amount to an impermissible expansion of the grievance to allow the union to proceed with those new allegations. The Ministry argued that I should reach the same conclusion in this matter.

33The Ministry also relied on the decision in Ontario Public Service Employees Union (Boudarga) and Ontario (Ministry of Government and Consumer Services), GSB # 2018-1811 (McLean). The decision reviewed the Board’s practice when determining whether a grievance has been improperly expanded and quoted from the decision in Ontario Public Service Employees Union (Louis) and Ontario (Training, Colleges and Universities), 2019 CanLII 78767 (ON GSB) (Gee) where the Board held:

[9] An arbitrator’s jurisdiction is limited to determining the issues that are raised by the grievance. Issues raised in a grievance are referred to as “in-scope.” The Union cannot add additional issues to the grievance that has been filed. Where there is an attempt to add issues to a grievance, it is said that the Union is attempting to “expand the scope of the grievance”; the Union is attempting to add “out of scope” issues to the grievance.

[10] When an issue as to whether the Union is attempting to expand the scope of the grievance arises, it must be determined whether or not the issue in dispute falls within the scope of the grievance as referred to arbitration. The leading case in this area is Re Blouin Drywall Contractors Ltd. And Carpenters Local 2486, (1975) 1975 CanLII 707 (ON CA). The following summary of the principles to be applied when determining the scope of a grievance is contained in Re Greater Sudbury Hydro Plus Inc. (2003) 121 L.A.C. (4th) 193 (Dissanayake):

14. I find two countervailing principles in the foregoing statement by the Court of Appeal. The first is that, where on a liberal reading of the grievance an issue, although not articulated well, is inherent within it, an arbitrator ought to take jurisdiction over that issue, despite any flaws in form or articulation. However, there is also a countervailing principle to the effect that an arbitrator ought not, in the guise of “liberal reading”, permit a party to raise at arbitration an issue which was not in any manner, even inherently, joined in the grievance filed. To do that would be to defeat the very purpose of the grievance and arbitration procedure.

[11] This Board in Re Labanowicz 2012-3224 etc. (Lynk) decision dated September 12, 2014, referred to the Greater Sudbury Hydro Plus decision (supra) and wrote at para. 22:

22. When faced with this issue, an arbitrator’s considerations would include some or all of the following: (i) a review of the language of the grievance, (ii) a review of the language of the collective agreement; (iii) a consideration of any other admissible evidence that would cast light on the parties’ understanding of the issues raised by the grievance, such as the scope of the discussions and exchanges during the grievance process; (iv) a review of the remedy sought; (v) an assessment of the time frame involved; and (vi) the degree of prejudice, if any, suffered by the employer. One useful indicator is to ask whether the other party reasonably should have understood upon reading the grievance and engaging in the grievance process that the new claim in question was organically part of the original grievance: Re Greater Sudbury Hydro Plus, supra.

34Applying this approach to the instant grievance, the Ministry argued that the issues raised in the particulars cannot be included in the grievance, as originally filed, even if the grievance is given a liberal reading. According to the Ministry, the issues raised in the Union’s particulars are not “in any manner, even inherently, joined in the grievance filed”. Nor were they raised in the First Resolution Meeting in February 2022.

35The Ministry also noted that in Boudarga, the Board declined to allow the Union to expand the grievance. It held that a “liberal reading” does not allow a party to change the grounds of the grievance “when deliberate choices were made” about what the grievance is about when it was first drafted and filed. Again, the Ministry argued that I should reach the same conclusion.

36The next decision relied on by the Ministry was the decision in Ontario Public Service Employees Union (Botosh) and Ontario (Ministry of the Attorney General), GSB # 2014-1088, 2014-1089, 2014-1238 (Abramsky). In that decision, the Board set out many of the same principles as those set out in Boudarga. Applying those principles to the grievances before it, the Board concluded that the Union had included particulars that impermissibly expanded the grievance and ordered that those particulars be struck.

37The last case relied on by the Ministry for the purposes of this motion is the decision in Ontario Public Service Employees Union (Hagopian) and Ontario (Ministry of Finance), GSB# 2017-2476 (Gee). This decision also reviewed the principles applied in determining whether a party is seeking to impermissibly expand the grievance. In addition to reviewing the principles already set out above, the Board noted that parties to a labour dispute should strive to work towards a quick and simple resolution. In order for parties to resolve an issue, they must both be aware of its scope. Failure to ensure that both parties are aware of the scope of a grievance deprives the party that “is in the dark” from the opportunity to resolve the matter prior to arbitration. The Board also noted that allowing a party to expand the scope of grievance beyond what was referred to arbitration effectively results in an arbitrator taking jurisdiction over a grievance in respect of which they were not appointed.

(ii) Position of the Union

38The Union argued that the case law is clear on this issue. Grievances should be construed liberally. They are drafted under time constraints by lay people. Grievances should not be lost on technicality of form. Applied to the instant grievance, the Union took the position that focussing only on the human rights aspects of the grievance to the exclusion of the Union’s argument that the Employer misapplied IO 43 would be an overly technical reading of the grievance and contrary to the relevant case law.

39The Union relied on the decision of Arbitrator Burkett in Enbridge Gas Distribution Inc. and C.E.P., Local 975, (2006) 2006 CanLII 93290 (ON LA), 150 L.A.C. (4th) 225 (Burkett), where the Arbitrator distinguished between the claim, the legal arguments in support of the claim, and the remedy that could flow if the claim was successful. According to the Union, as long as the claims are properly raised in the grievance then a party is entitled to bring forward full legal argument and full remedies in support of that claim.

40The Union argued that in this grievance the grievor is claiming that he should have been permitted to continue working and that he should not have been placed on an unpaid leave. That claim has not changed since the grievance was filed. As such, according to the Union, there has been no expansion of the grievance.

41The next case relied on by the Union was Canac Kitchens Ltd. and C.J.A., Local 1072, (1996) 1996 CanLII 20396 (ON LA), 58 L.A.C. (4th) 222 (Abramsky). In Canac Kitchens, the union filed three grievances. All of the grievances related to allegations by the union that the employer was failing to recognize the union as the employee’s designated bargaining agent. At the hearing, the union sought to argue that its business representatives were being denied the right to tour the plant in violation of the collective agreement. The union acknowledged that none of the grievances specifically made reference to a plant tour, however the union argued that reference was not required because the “issue is encompassed in and flows naturally from what is expressed in the grievances”. The union also noted that all of the grievances raised questions about union access and that all of the grievances referred to an article in the collective agreement that granted union representatives, not employed by the employer, the right to meet with the Local union Chief Steward in the plant, with prior permission from the employer.

42In reviewing the position of the union, Arbitrator Abramsky noted that the fact that the grievances did not specifically mention the issue of a plant tour was not determinative. The Arbitrator noted that the case law established that grievances should be given broad and liberal readings so as to ensure that the real issue between the parties is determined. The Arbitrator also held that grievances should not be won or lost on the technicality of form.

43Ultimately, Arbitrator Abramsky concluded that the issue of union representatives being denied the right to tour the plant did not “flow naturally” from the grievances and therefore constituted an impermissible expansion of grounds. In reaching this conclusion, the Arbitrator noted that the issue of plant tours was substantively distinct from the broader issues raised in the grievances. Notwithstanding this conclusion, the Union in the current case argued that I should adopt the same approach as that endorsed by Arbitrator Abramsky in her decision.

44The next decision relied on by the Union was the decision in DDM Plastics Co. v. I.A.M. & A.W., Local 2792, 2008 CarswellOnt 4312 (Williamson). In that case, the Union grieved that the Employer was having employees do “customer visits” without regard to their seniority. As a preliminary matter, the Arbitrator had to determine whether the grievance was limited to three employees named in the resolution section of the grievance or, as argued by the union, whether the grievance was a broad policy grievance.

45Arbitrator Williamson concluded that the grievance encompassed the union’s broader policy claim. In reaching this conclusion, the Arbitrator noted that the grievance was drafted broadly and was not limited in scope to the three individuals.

46Finally, the Union relied on the decision in North Bay General Hospital and O.P.S.E.U., (2006) 2006 CanLII 53942 (ON LA), 154 L.A.C. (4th) 425 (Randall). In that case, the grievor, a nurse working at a hospital during an influenza outbreak, was terminated for failing to take a prescription drug that provided protection against the flu during the two week interval while the flu shot was taking effect. During the course of the hearing the union alleged that the employer’s health services department violated the Occupational Health and Safety Act by notifying management that the grievor had not taken the prescription drug as required and by participating in the employer’s investigation into the grievor. In response, the hospital argued that the union’s allegations constituted an expansion of the grievance.

47Arbitrator Randall allowed the union to raise the alleged breach of the grievor’s medical privilege finding that it was encompassed or flowed naturally from the assertion contained in her grievance that she was dismissed unjustly. Arbitrator Randall also noted that the foundation for the union’s allegations came out of the cross-examination of an employer’s witness underscoring that the factual basis for the claim was the same as the factual basis for the grievance.

48The Union argued that were this matter proceeded to a hearing and management witnesses testified that they were simply applying IO 43 when they placed the grievor on unpaid leave, it would be open to the Union to challenge that basis for the Employer’s decision. Accordingly, the Union argued it should be permitted to raise that issue from the outset.

(iii) Analysis

49For the reasons set out below, I am satisfied that the particulars provided by the Union do not amount to an impermissible expansion of the grievance.

50There is no dispute regarding the applicable principles. The question to be asked is whether or not the “new allegations” flow naturally from, are encompassed by, or are inherent to, the existing grievance or are they effectively a new grievance. In answering this question, arbitrators have concluded that grievances should be given a liberal reading and that grievances should not be lost on technicality of form. That being said, while arbitrators should afford grievances a liberal reading, arbitrators have also noted that even liberal readings have limits.

51The tension between giving a grievance a liberal reading, and finding that an allegation or issue falls outside the scope of the original grievance has been addressed by a number of arbitrators. In Greater Sudbury Hydro Plus, supra, Arbitrator Dissanayake held that to include an issue through a “liberal reading” an arbitrator must be able to conclude that the “employer reasonably should have understood” that the issue being raised formed part of the grievance. Arbitrator Dissanayake also held that parties should not be permitted to raise issues which are not in any manner joined in the grievance and arbitration procedure.

52In North Bay General Hospital, supra, Arbitrator Randall commented:

Obviously, while the grievance should be construed liberally, the Union is not allowed to argue a whole new matter, and certainly not one requiring an entirely different factual foundation. ‘We can’t be left with’, in the words of Arbitrator Goodfellow (see Cold Spring Farms Ltd. v. Cold Springs Farms Employees’ Assn., Local 100 (2000) 2000 CanLII 50240 (ON LA), 88 LAC (4th) 213 (Ont. Arb.), at 222)

an attempt by the Union to expand the original grievance to include both legal and factual issues that were not raised previously and that would, if allowed, support an independent breach of the collective agreement and provide an entirely separate basis for relief.

53Similarly, in Canac Kitchens Ltd., supra, Arbitrator Abramsky held that an issue must be “encompassed in and flow naturally from what is expressed in the grievance” and that the “corollary to that, of course, is that if an issue is a distinct, substantively new issue that may not be reasonably viewed as encompassed in and as flowing naturally from the grievance, and was never addressed during the grievance process, it would not be arbitrable.”

54Whether or not an allegation forms an inherent part of the original grievance or is a distinct issue requires an objective assessment. In answering the question, arbitrators can look at a number of factors (although not all factors will necessarily be relevant in each case). In Boudarga, after reviewing the case law, Arbitrator McLean set out the following factors that may be relevant to this question:

i. the wording of the grievance; ii. the wording of the collective agreement; iii. consideration of other evidence that would cast light on the parties understanding of the issues raised by the grievance; iv. the remedy sought; v. the applicable time frame; and vi. the degree of prejudice to ER.

55Applying those factors to the instant grievance, the following conclusions can be drawn. First, both the grievance and the particulars challenge the decision to place the grievor on an unpaid leave. Accordingly, they both address the same specific event.

56While IO 43 is not specifically mentioned in the grievance, the grievance does make reference to the management rights provision of the Collective Agreement, and “any other policies, Acts or legislation that may apply when the employer failed to reassign” the grievor “following the Transport Canada policy restricting access to airports and aviation against covid-19.”

57Second, the notes taken during the Formal Resolution Meeting make reference to IO 43. At a minimum, the notes from that meeting support two conclusions. First, that the Ministry told the Union and the grievor that it was required to follow Transport Canada’s directions and that it believed those directions (in the form of IO 43) required the grievor to be placed on an unpaid leave. Second, the notes also establish that the grievor was challenging the decision to place him on an unpaid leave. There was a connection being made between IO 43 and the decision to place the grievor on an unpaid leave of absence. The Employer advised the Union and the grievor that the Ministry was required to follow Transport Canada’s directions and that because the grievor chose not to follow those directions, he was no longer permitted to fly.

58Third, the time frame captured by the grievance and the particulars is the same. Both deal with the period of time that the grievor was placed on an unpaid leave.

59Fourth, the remedy sought in the grievance and the particulars has not changed. Throughout, the grievor seeks to be compensated for the time he was placed on an unpaid leave.

60Having regard to these facts, I am satisfied that the particulars do not constitute an impermissible expansion of the grievance. As set out in the case law above, grievances are to be given a liberal reading. Where an issue can be said to flow from, or be inherent to, the grievance as filed, an arbitrator will find that no expansion of the grievance has taken place. That is the case before me.

61The decision to place the grievor on an unpaid leave is the central issue in both the grievance and the particulars. IO 43 is at the center of the decision to place the grievor on leave. The Employer said as much in its November 22, 2021 email to the grievor putting him on an unpaid leave. In that email, the Ministry wrote:

Further to our discussion on November 15th, effective immediately you are being placed on an unpaid leave of absence until further notice as you are not in compliance with requirements under Transport Canada’s Interim Order Respecting Requirements for Civil Aviation Due to COVID-19, No. 43 (“Interim Order”) or the Aviation Services Mandatory Vaccination Policy.

62The Union’s claim that IO 43 has been misapplied flows from the claim in the grievance that the Employer’s decision violates the Collective Agreement “any other Act, policies or legislation.” There is reference to those external considerations in the grievance form. As well, the management rights clause in the Collective Agreement requires that the Employer’s decision to place the grievor on unpaid leave be reasonable. Were the Employer to have misapplied IO 43 or ‘any other Act, policy, or legislation’, its decision would be open to a finding that it was unreasonable. That a factor taken into account in decision-making may be subject to challenge should not come as a surprise to any employer.

63IO 43 was confirmed during the Formal Resolution Meeting as a significant part of the part of the rationale for the Employer’s decision. Accordingly, the position of the Union challenging the application of IO 43 to the grievor flows naturally from the challenge to the decision to place the grievor on an unpaid leave.

64Finally, the time frame at issue and the remedy sought in both the grievance and particulars further support for my conclusion that the applicability of IO 43 flows naturally from the grievance. Both deal with the same time frames and both seek the same remedy. For all of the foregoing reasons, I have concluded that the particulars provided by the Union flow naturally from the grievance and therefore do not constitute an impermissible expansion of the grievance.

65The position of the Ministry falls squarely within the caution issued by Arbitrator Burkett in Enbridge Gas Distribution, supra. A party is not required to specify within the grievance the legal arguments it intends to marshal in support of its claim. From the outset, the Union and the grievor have challenged the decision to place him on an unpaid leave. That claim is clearly set out in the grievance. The particulars are now setting out in greater detail the legal argument in support of that claim. It was not required to set those arguments out in the grievance.

C. No Prima Facie case

(i) Position of the Ministry

66The Ministry argues that the Union has not pleaded a prima facie violation of the Collective Agreement. The Ministry submits that the Union should be held to the five articles they alleged to have breached in the grievance: Articles 2, 3, 9, 21 and 31. They argue there is nothing in the particulars that could, even if accepted as true and provable, constitute a violation of any of these Articles of the Collective Agreement, except for Article 2 the management rights clause.

67With respect to Article 2, the Ministry submits that it cannot, in and of itself, sustain a grievance. The Ministry submits that there must be a hook beyond Article 2 and that in this case there is no such hook. According to the Ministry, at its core the position of the Union is that the Employer’s interpretation of IO 43 is not reasonable. In other words, the Union is arguing that the Ministry exercised its management rights unreasonably.

68The Employer argues that some of the cases speak in terms of a failure to plead a prima facie case while others speak to the Board not having jurisdiction where no breach could be established. According to the Employer, there is no meaningful distinction between the two approaches and that in any event, the Board does not have jurisdiction in this case (because no prima facie case has been pleaded). The Ministry relied on the following decisions in support of its position: Ontario Public Service Employees Union (Kolmann) and Ontario (The Ministry of Community Safety and Correctional Services), GSB # 2016-0562; 2016-0566 (Abramsky); Ontario Public Service Employees Union (Brown et al) and Ontario (Ministry of Labour, Training and Skills Development), (GSB #2018-2461 et al) (Gee); and International Brotherhood of Electrical Workers (System Council No. 11) and Canadian National Railway Company, 2023 CanLII 44118 (CA LA) (Clarke).

(ii) Position of the Union

69The Union argues that the decision to place the grievor on an unpaid leave breaches any number of Articles in the Collective Agreement. According to the Union, where any right under the Collective Agreement is unduly limited, negated or abrogated, as is the case here with the decision to place the grievor on an unpaid leave, the Board has jurisdiction.

70The Union argues that the grievor’s rights under the Collective Agreement were affected in any number of ways. For example, the grievor was unable to use his sick leave, or accrue vacation, or access entitlements to holidays. The grievor also lost the ability to earn shift premiums, work overtime, be paid meal allowances, or receive holiday payments. Accordingly, the decision to place the grievor on an unpaid leave, and more importantly the grievance challenging that decision, establish a variety of prima facie violations of the Collective Agreement.

71The Union relies on the following decisions in support of its position: Ontario Public Service Employees Union (Couture et al) and Ontario (Ministry of Government Services), 2011 CanLII 100933 (ON GSB) (Dissanayake); Ontario Public Service Employees Union (Gauntlett) and Ontario (Ministry of Finance), 2008 CanLII 70504 (ON GSB) (Gray); Ontario Public Service Employees Union (Union) and Ontario (The Ministry of Community Safety and Correctional Services/ Ministry of Children and Youth Services), 2010 CanLII 42118 (ON GSB) (Harris); Ontario Public Service Employees Union (Dufour et al) and Ontario (The Ministry of Community and Social Services), 2013 CanLII 18486 (ON GSB) (Briggs)and; Ontario Public Service Employees Union (Cote et al) and Ontario (Ministry of Natural Resources and Forestry), 2020 CanLII 63603 (ON GSB) (Wacyk).

(iii) Analysis

72I am satisfied that I have the jurisdiction to hear this grievance. Put differently, I am satisfied that the Union has pleaded a prima facie case.

73This issue can be dealt with quite briefly. The Employer placed the grievor on an unpaid leave of absence. Neither the grievor nor the Union agreed to this decision. As an employee, the grievor is entitled to work and to enjoy the benefits of the Collective Agreement subject to any restrictions specifically imposed by that Collective Agreement or restrictions imposed by Employer policies. Employer policies must be reasonable and reasonably applied. The grievor was prohibited from working due to the Employer’s application of a policy adopted. The question of whether or not that decision was justified gives rise to a justiciable issue and is one to be determined on its merits.

74The Union is correct when it argues that the decision to place the Grievor on an unpaid leave adversely affects any number of rights under the Collective Agreement. As set out in Arbitrator Harris’ decision in Ontario Public Service Employees Union (Union), supra, where there is an allegation that the employer’s exercise of management rights has adversely impacted an employee’s rights under the Collective Agreement, an arbitrator will have jurisdiction to hear that allegation.

75The position of the Employer must be rejected, at least in part, because it takes an overly restrictive view of the grievance. In the same way that the Employer took a narrow view of the grievance when it argued that the Union was seeking to expand the grievance, the Employer takes a similarly narrow view of the grievance in arguing that the Union has not pleaded a prima facie violation of the Act. It is the Employer’s decision to place the grievor on unpaid leave that forms the basis of the grievance. The fact that the grievor was put on an unpaid leave pursuant to an alleged improper or unreasonable decision of the Employer is sufficient to establish a prima facie case.

76Accordingly, I am satisfied that the Union has pleaded a prima facie case of the Collective Agreement and I have jurisdiction to hear that grievance.

77The parties are to contact the Board to schedule hearing dates.

78I am seized.