GSB# 2021-1833; 2021-1834

UNION# 2021-0368-0147; 2021-0368-0148

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Fitzpatrick)

Union

• and -

The Crown in Right of Ontario (Ministry of the Solicitor General)

Employer

BEFORE

Adam Beatty

Arbitrator

FOR THE UNION

Laura R. Johnson Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Paul Meier Treasury Board Secretariat Legal Services Branch Counsel

HEARING

December 18, 2023 and January 23, 2024

Decision

A. Introduction

1The Grievor has filed two grievances alleging that the Employer has failed to meet the duty to accommodate. The first grievance (GSB # 2021-1833) alleges the Employer failed to accommodate the Grievor on the basis of family status (“the family status grievance”). The second grievance (GSB # 2021-1834) alleges a failure to accommodate on the basis of disability (“the disability grievance”). Both grievances were filed on October 15, 2021.

2As will be spelled out in greater detail below, the family status grievance relates, to requests made by the Grievor to either work from home or have a hybrid schedule in order to care for her ailing grandmother. There does not appear to be any meaningful disagreement that her grandmother requires around the clock care and that at the relevant time the Grievor had little to no support in caring for her.

3The Grievor was employed as a Discharge Planner at the Central East Correctional Centre (“the CECC”). She was off work on an unpaid leave from approximately March 2020 to August 2021. On or around June 29, 2022, the Grievor was advised she was the successful candidate for the CCLA Program Coordinator Position.

4The Employer has raised two preliminary objections. First, the Employer submits that the bulk of the allegations contained in the family status grievance are barred by virtue of Minutes of Settlement (“MOS”) dated April 1, 2021 (“the settlement objection”). The Employer asks that the Board enforce the MOS and that those allegations captured by the MOS be dismissed. Second, the Employer argues that a portion of the Union’s particulars should be struck because they amount to an impermissible expansion of the family status grievance (“the expansion objection”).

5The Union disagrees. OPSEU argues that the allegations contained in the family status grievance are not caught by the release in the MOS. OPSEU submits those allegations post-date the MOS and are properly before the Board. OPSEU also submits that the particulars do not constitute an expansion of the grievance. Rather, according to the Union, the allegations set out in the particulars at issue are inherent to, and flow naturally from, the family status grievance.

6As described in greater detail below, the parties do not meaningfully disagree over the principles the Board should apply in addressing these objections. Where they do disagree is over the application of those principles to the facts before the Board.

7The settlement objection requires the Board to interpret the MOS and determine the scope of the agreement reached. The expansion objection requires a determination as to whether the issues raised in the particulars can be said to be inherent to, or flow naturally from, the family status grievance.

8The parties provided the Board with a number of cases in support of their respective positions. While helpful in establishing broad principles, they all turn on their specific facts and can be distinguished on that basis. Accordingly, with one or two exceptions, I have not made specific reference to the decisions relied upon.

B. The Settlement Objection

(i) General Principles

a Position of the Employer

9The Employer argued that in interpreting the MOS, the normal rules of interpretation apply. Drawing on the Supreme Court’s decision in Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, (“Sattva”), the Employer argued that the MOS should be read as a whole, given its ordinary and grammatical meaning, consistent with the surrounding circumstances known to the parties at the time. The focus is on the plain language of the MOS, interpreted in context. The Employer argued that when these principles are applied to the MOS it is apparent that the issues raised by the family status grievance were already resolved by the MOS.

10The Employer argued that in the family status grievance, the Grievor alleges that her rights under the Collective Agreement and the Human Rights Code have been violated because she has not been permitted to work from home or provided with a hybrid schedule. According to the Employer, the wording of the MOS and the surrounding circumstances at the time the MOS was signed demonstrate that those are the same issues that were resolved by the MOS. The wording of the MOS further establishes, according to the Employer, that the Grievor agreed that the Employer was released from any claims related to those issues. Accordingly, the Employer submits that the family status grievance constitutes an attempt to relitigate matters already resolved.

11The Employer also argued that settlements represent the mutual satisfactory resolution of disputes, that there are clear policy reasons to encourage and enforce settlements, and that parties should be prohibited from re-litigating voluntarily resolved matters. The Employer noted that the Board holds parties to the bargains they have struck. Doing so brings finality to the process. To do otherwise would reduce parties’ desire to resolve grievances and would undermine the resolution of matters without resort to arbitration. Such an outcome would have obvious negative cost and time implications and should be avoided.

b. Position of the Union

12The Union agreed that the principles of interpretation, as set out by the Supreme Court in Sattva apply. However, the Union submitted that when those principles of interpretation are applied the appropriate conclusion to draw is that the family status grievance is not barred by the MOS.

13As will be set out further below, according to the Union, both the wording of the MOS and the surrounding circumstances support its position. The Union argued that the language in the MOS only addressed claims up to the date the MOS was signed. As such, the Union can raise any allegations that post-date the MOS.

14The Union also argued that the allegations in the family status grievance followed the Grievor’s return to work, after her leave of absence, whereas those allegations resolved by the MOS occurred while the Grievor was still off work. Accordingly, there has been a significant change in the Grievor’s circumstances from when she signed the MOS to when she filed the family status grievance.

15In the alternative, the Union argued that the Employer’s interpretation is contrary to public policy. The Union argued that there is an ongoing duty to accommodate up to the point of undue hardship, under both the Human Rights Code and the Collective Agreement and that any provision limiting the Grievor’s right to seek accommodation would violate the Employer’s that duty.

16According to the Union, the Employer’s interpretation would amount to contracting out of the Human Rights Code. The Union noted that the Supreme Court of Canada held in Ontario Human Rights Commission and Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, that it is contrary to public policy to allow parties to contract out of the Code. The Union argued that the MOS must be read in the context of the Employer’s ongoing duty to accommodate the Grievor in her employment, and the prohibition on contracting out of the Human Rights Code. When read in that context, the Union argued that the MOS cannot be interpreted as curtailing the Grievor’s right to seek accommodation in the future.

17The Union also agreed that parties should be held to the bargain they have struck and should not be permitted to resile from agreements freely entered into. The Union agreed that there are strong policy reasons to uphold settlements.

c. Employer’s Reply

18In reply, the Employer indicated that it agreed that parties cannot contract out of the Human Rights Code. However, the Employer also stated that litigants can resolve human rights issues through minutes of settlement. Similarly, the Employer agreed that the duty to accommodate is a continuing duty, but also argued that a grievor cannot grieve for a second time an issue that has already been settled. According to the Employer, the issue to be determined in this preliminary motion is whether the substance of the family status grievance involves human rights issues known to the parties at the time the MOS was agreed to and whether those issues were extinguished by the release. The Employer submits that the issues were known to the parties and that they were extinguished by the terms of the MOS.

19I pause to note here that I have chosen not to reproduce the MOS in its entirety in this decision. The MOS contains a confidentiality provision and, while acknowledging that this decision would have to refer to some portions of the MOS, both parties requested that I keep those references to the minimum required for the purposes of the decision.

(ii) Wording of the MOS

a. Position of the Employer

20The Employer argued that the wording of the MOS supported its position that the MOS resolved the family status accommodation issues going forward. First, the Employer noted that the heading of the MOS reads “Memorandum of Settlement and Release”. The Employer argued that this is a strong indication that the parties were emphasizing the release portion of the settlement.

21Second, the Employer argued that the recitals cast a broad net. The Employer noted that the Grievor had filed a significant number of grievances leading up to the MOS. Those grievances were listed in an appendix to the MOS. The recitals refers to those grievances (and the appendix). The recitals also specifically refer to violations of the Collective Agreement and the Human Rights Code. The recitals refer to accommodation issues. The recitals also refer to two sets of particulars filed by the Union with respect to some of the grievances listed in the appendix to the MOS. The recitals also refer to a willsay document prepared by the Grievor. Finally, the recitals indicated the following:

AND WHEREAS the Parties wish to ensure any and all outstanding employment-related matters between the Grievor and the Employer to the date of this Memorandum of Settlement and Release, including all grievances and matters that flow from these grievances, are addressed and resolved;

Read as part of the MOS as a whole, and giving the words their ordinary grammatical meaning , the Employer argued that the recitals demonstrate an intention by the parties to resolve any and all employment related matters, including but not limited to any grievances and any matters that flow from those grievances.

22Third, the Employer argued that the language in the body of the MOS also favoured its interpretation. The Employer noted that the second paragraph in the MOS establishes that all grievances to date are withdrawn and settled. The third paragraph of the MOS sets out the release. The relevant portions of that paragraph read as follows:

In consideration of the terms and conditions in this Memorandum of Settlement and Release, the Grievor hereby releases and forever discharges the Employer (including the Ministry) … of and from all grievances, actions, causes of action, claims and demands of every nature and kind arising out of or as a result of any allegations which the Grievor may have or could make against the Employer … in respect of all matters to date of this Memorandum of Settlement, including any grievance, action, cause of action, claim or demand under the Human Rights Code, the Respectful Workplace Policy, the Workplace Harassment and Discrimination Prevention Policy …

The Employer emphasized that this paragraph was also framed in broad language. In addition to releasing the Employer from all grievances, actions, causes of action, claims and demands the Grievor could make, this paragraph also released the Employer from any “allegations” the Grievor could make.

23The Employer argued that the next paragraph also demonstrated that the parties intended to resolve all of the Grievor’s human rights issues. The Employer emphasized the following portion of paragraph 4:

… that the Grievor had the opportunity to address any and all human rights issues to date, including out of the subject matter giving rise to the grievances noted in Appendix “A”, and that any such issues were addressed and resolved by this Memorandum of Settlement.

The Employer argued this broad language in the MOS indicated that it was released from any and all allegations the Grievor could make, whether related to human rights issues or otherwise, in respect of all employment related matters to the date of the MOS. The Employer noted that Arbitrator O’Neil engaged in a similar interpretative exercise and reached a similar conclusion when faced with equally broad language in Ontario (Ministry of Community Safety and Correctional Services) and Antoncic, 2009 CarswellOnt 10854.

24As will be set out further below, the Employer also argued that its interpretation was consistent with the surrounding circumstances. In particular, the Employer emphasized that the surrounding circumstances demonstrated that the parties had turned their minds to the specific issues of the Grievor working from home and the Grievor working a hybrid scheduled when they signed the MOS. According to the Employer those issues were resolved by the MOS and cannot be resuscitated by the family status grievance.

b. Position of the Union

25The Union argued that the language in the MOS does not support the Employer’s position. The Union argued that on a plain, ordinary and contextual reading of the MOS, the Grievor only settled and released claims up to the date of the MOS. According to the Union, the language agreed to did not cover allegations that post-date the MOS, as argued by the Employer.

26The Union argued in interpreting the MOS it was important to pay attention to what it said and what it did not say. First, the Union argued that throughout the MOS the parties repeatedly indicated that the releases were limited to the date of the settlement. For example, the second paragraph of the preamble states that “the Grievor has filed the grievances noted in Appendix “A” alleging violations of the Collective Agreement and the Human Rights Code, including with respect to … accommodation to date;.”

27Similarly, as noted above, in the third paragraph of the MOS, the Grievor released the Employer in respect of “all matters to the date of this Memorandum of Settlement”. The fourth paragraph also indicates the “Grievor had the opportunity to address any and all human rights issues to date”.

28According to the Union, the plain and ordinary meaning of the MOS supports the conclusion that the Grievor only released the Employer from claims that the Grievor made or could have made to the date of the MOS. The Union argued that the Employer was seeking to have language read in to the MOS that the wording could not support. The Union argued that there was no language in the MOS that released the Employer from its obligation to accommodate the Grievor in the future. The Union noted that the MOS did not include any agreement about the nature of any accommodation for the Grievor going forward. It was, in the Union’s view, a backwards looking agreement.

29Finally, the Union argued there were three important aspects of the surrounding circumstances. First, the Union noted that the MOS did not terminate the Grievor’s employment. The Grievor remained an employee of the Ministry following the MOS. Second, and as a result of her continued employment, the Employer was under a continuing duty to accommodate the Grievor under the Human Rights Code. Third, the Grievor was on an unpaid leave of absence at the time the MOS was agreed to. The Grievor was off work for approximately 18 months and did not return to work until August 16, 2021, well after the MOS was signed. Accordingly, the Union argued there had been a significant change in circumstances between the signing of the MOS and the filing of the grievances at issue.

(iii) Issues resolved by the MOS

a. Position of the Employer

30The Employer argued that at the time the MOS was agreed to, April 1, 2021, the Grievor had alleged that not allowing her to work from home to care for her grandmother was a violation of the Human Rights Code. The Grievor also alleged that requiring her to work from the CECC was not a bona fide occupational requirement. The Grievor also suggested that a hybrid work schedule could be appropriate so that she could work from the CECC when she had adequate care for her grandmother and work from home when she did not.

31The Employer noted that the Grievor filed an application with the Human Rights Tribunal of Ontario (“HRTO”) in August 2020 (“the human rights application”). In the human rights application, the Grievor alleged that the Employer discriminated against her on the basis of family status and disability. In particular, the Grievor alleged that the Employer had failed to offer any accommodations, including working from home or working a hybrid schedule, either of which would allow her to care for her grandmother. The Employer argued that these allegations formed an important part of the context known to the parties when they signed the MOS in April 2021.

32The Employer also noted that in response to the Grievor’s requests for accommodation, it told the Grievor that while it did not agree that she could work from home, it repeatedly offered flexible scheduling options. The Employer pointed to correspondence in May and December 2020, as well as January, October and November 2021, and January, February and March 2022 where the Grievor either requested, was offered, or was permitted to work flexible hours, often on very short notice.

33Accordingly, and applying the principles of Sattva to the facts before the Board, the Employer asserted that the MOS clearly released it from allegations related to working from home or working a hybrid schedule. Put somewhat differently, the ability to work from home or the ability to work a hybrid schedule were issues in the “contemplation of the parties” at the time the MOS was signed. As such, the Employer argued that the Grievor should not be allowed to re-raise these issues in any subsequent litigation. The Employer argued that those issues were fully and finally resolved by the MOS.

b. Position of the Union

34The Union argued that the MOS settled allegations and grievances from 2015 and 2016. The Union argued that none of the grievances settled by the MOS, nor the accompanying willsay document, contained any allegations about the Employer failing to accommodate the Grievor on the basis of family status. According to the Union, the grievances resolved by the MOS predated any issues regarding the Grievor’s grandmother.

35The Union acknowledged that the human rights application did contain allegations that the Employer had failed to accommodate her on the basis of family status as a result of her need to care for her grandmother. According to the Union, the allegations in the human rights application span the period between March 17, 2020 and August 7, 2020. The Union emphasized that the allegations in that application preceded not only the MOS but also the Grievor’s return to work in August 2021 and her grievances from October 2021. The Union also emphasized that none of the allegations in the human rights application overlap with the allegations in the grievances at issue in this decision. Those grievances start with the Grievor’s return to work.

(iv) Issues raised by the family status grievance

a. Position of the Employer

36The Union filed particulars in support of the family status grievance (“the particulars”). The particulars were filed on April 3, 2023. The Employer noted that in the particulars, the Grievor once again argued that not allowing her to work from home constituted a violation of the Human Rights Code. The Grievor also continued to take the position that working from the facility is not a bona fide occupational requirement.

37The Employer, was, and is, of the view that the Grievor’s duties and responsibilities cannot be done from home. The Employer argued that prior to the signing of the MOS, it repeatedly explained to the Grievor why that was the case. According to the Employer, the Board would hear the same evidence, and the same legal issues would be raised in the family status grievance if that grievance was permitted to proceed.

38In the particulars, the Grievor also requested the ability to work a hybrid schedule. The Employer noted that the Grievor made the exact same request in August and December 2020, months prior to signing the MOS. The Employer further noted that the Grievor has requested that the Board order that she be permitted to work a hybrid schedule as part of the remedy to the family status grievance. The Employer argued these are the same issues that crystallized prior to, and were resolved by, the MOS, and that the same legal issues would be raised if the family status grievance was permitted to proceed.

39The Employer also noted that the Grievor repeatedly indicated that her circumstances with her grandmother had not changed. Both before and after the signing of the MOS, the Grievor emphasized that she remained the primary caregiver for her grandmother and her responsibilities were unpredictable. Accordingly, those issues had also crystallized prior to signing the MOS.

40The Employer took the Board to a number of documents that post-date the MOS. The Employer argued that these documents show that shortly after signing the MOS in April 2021, the Grievor began to raise the same family status accommodation issues that had been raised prior to the signing of the MOS (and that appear in the family status grievance).

41As set out above, in August 2020 the Grievor filed the human rights application. In August 2021, the Grievor sought to amend that application and to add a number of named respondents. According to the Employer, as part of that request, the Grievor reiterated her position that she should be permitted to work remotely, be provided with a meaningful hybrid schedule, and that the Employer’s failure to do so violated her rights under the Code. The Employer also noted that in response to the human rights application it argued that the Grievor had already signed a full and final release with respect to the same allegations. The Grievor withdrew the human rights application March 17, 2022.

42The Employer argued that given that these issues were raised, and addressed, by the MOS, it should not be twice vexed by having to defend itself against the same allegations in the family status grievance. It relies on all of the policy rationales set out above in support of its position. Accordingly, the Employer submitted that the family status grievance should not be permitted to proceed.

b. Position of the Union

43The Union noted that the Grievor was able to return to work in August 2021 because she was able to secure temporary care for her grandmother. Unfortunately, the temporary care stopped being available in the fall of 2021. According to the Union, this is the sequence of events that ultimately led to the Grievor requesting accommodation on the basis of family status on October 7, 2021. When those requests were denied the Grievor filed the family status grievance.

c. Employer’s Reply

44In reply, the Employer reiterated that the Grievor was raising the same issues in the family status grievance as were resolved by the MOS. In particular, the Employer noted that prior to the MOS, the Grievor raised concerns regarding caring for her grandmother and requested the ability to either work from home, work a hybrid schedule, or both. The Employer repeatedly took the position that it was not operationally feasible for the Grievor to work from home.

45The Employer argued that the circumstances have not changed following the Grievor’s return to work. Her requests for accommodation continue to be related to caring for her grandmother. The Grievor continues to request the same accommodations as she requested prior to the MOS. Accordingly, the Employer argues that it should not twice vexed by the same allegations in the same circumstances.

(v) Decision on Settlement Objection

46The Employer emphasized that parties should be held to the bargains they strike, that settlements should be strictly enforced and that it should not be twice vexed on the same issue. The Union emphasized that the Employer has an ongoing duty to accommodate the Grievor up to the point of undue hardship and that parties cannot contract out of the Human Rights Code.

47Notwithstanding their distinct points of emphasis both parties also agreed with the principles relied upon by the party opposite. In other words, the Union acknowledged that there are sound policy reasons for enforcing settlements, and agreed that a party should not be required to defend itself twice against the same allegations. Similarly, the Employer agreed that it has an ongoing duty to accommodate the Grievor and that it cannot contract out of the Human Rights Code.

48While the principles relied on by the parties are helpful in establishing broad parameters through which this motion can be considered, ultimately, I am satisfied that this matter falls to be determined on the interpretation of the MOS and the specific language agreed to by the parties. In interpreting the MOS, I have been guided by the approach of the Supreme Court as described in Sattva. I have interpreted the words in their ordinary and grammatical sense consistent with the surrounding circumstances. While the surrounding circumstances are clearly an important part of the interpretive exercise, they cannot override the plain and ordinary meaning of the words agreed to in the MOS.

49The language of the MOS establishes that the Employer was only released from the allegations of discrimination on the basis of family status up to the date of the MOS. There are a number of examples in the MOS where the parties clearly agreed that they were only addressing issues to the date of the MOS.

50First, in the preamble, the parties agreed that they wanted to address and resolve “any and all outstanding employment-related matters between the Grievor and the Employer to the date of this Memorandum of Settlement and Release.” (emphasis added)

51Second, in paragraph 3 of the MOS, the parties agreed as follows:

In consideration of the terms and conditions in this Memorandum of Settlement and Release, the Grievor hereby releases and forever discharges the Employer (including the Ministry), its employees, agents, Ministers, Deputy Ministers, officer holders, directors, servants and assigns of and from all grievances, actions, causes of action, claims and demands of every nature and kind arising out of or as a result of any allegations which the Grievor may have or could make against the Employer, its employees, agents, Ministers, Deputy Ministers, officer holders, directors, servants and assigns in respect of all matters to the date of this Memorandum of Settlement, including any grievance, action, cause of action, claim or and [sic] demand under the Human Rights Code, the Respectful Workplace Policy, the Workplace Harassment and Discrimination Prevention Policy, the Occupational Health and Safety Act, the Employment Standards Act, 2000 and the Public Service of Ontario Act, 2006 and their respective regulations and, as applicable, all directives and policies made under such legislation. (emphasis added)

52Next, in Paragraph 4 the parties agreed as follows:

The Grievor understands that the Collective Agreement requires the Employer and the Union to abide by the Human Rights Code and that the Grievor had the opportunity to address any and all human rights issue to date, including out of the subject matter giving rise to the grievances noted in Appendix “A”, and that any such subject matter were addressed and resolved by this Memorandum of Settlement. (emphasis added)

53The passages cited all limit the release in the MOS to the date of the MOS. In that sense the language could not be clearer. The issues being resolved are, at their broadest, any and all allegations made by the Grievor with respect to any issue, including any issue under the Human Rights Code, up to the date of the MOS. That is the bargain the parties struck.

54This interpretation is also consistent with the surrounding circumstances. The Employer argued that the issues resolved by the MOS are the same issues as those raised in the family status grievance. The Employer argued that both prior to the signing the signing of the MOS and in the family status grievance, the Grievor alleges that the Employer has failed to accommodate her on the basis of family status (specifically in failing to allow her to work from home or to work a hybrid schedule). According to the Employer, the surrounding circumstances make it clear that those are the issues that were in the contemplation of the parties when they signed the MOS. As such, the resolution of those issues must inform the interpretation given to the MOS.

55While the issues raised leading to the MOS do form part of the surrounding circumstances, and therefore inform the interpretation to be given to it, they do not constitute all of the surrounding circumstances relevant to interpreting the MOS. At the time of the MOS, the parties were also clearly alive to the fact that the Grievor’s employment at CECC would continue and that the Grievor’s care-giving responsibilities towards her grandmother had not changed. These circumstances also must inform the meaning attributed to the MOS.

56In that context, the significance of limiting the release to the date of the MOS takes on added importance. The parties clearly knew that the issue of caring for the Grievor’s grandmother had not been resolved. They also clearly knew that the Grievor would continue to work for the Employer. Put differently, reading the words of the MOS in their normal and ordinary sense, in a manner that is consistent with the surrounding circumstances, supports the conclusion that the parties were aware that the issue of caring for her grandmother had not been completely resolved. It had only been resolved to the date of the MOS.

57When viewed in this context, it can also no longer be argued that the Employer is being twice vexed. The allegations raised in the family status grievance, all post-date the MOS. They are therefore temporally distinct from the issues resolved by the MOS. Accordingly, this is the first time the Employer has had to answer these allegations.

58Similarly, this is not a case where the parties are not being held to the bargain they reached, or are being permitted to resile from their agreement. Again, the agreement was that the Employer would be released from any and all claims up to the date of the MOS. If the allegations in the family status grievance pre-dated the MOS, the Employer would have a valid argument. However, as set out above, the allegations contained in the family status grievance post-date the MOS and are therefore not covered by the MOS. That they cover the same type of allegations as those resolved by the MOS is immaterial in light of the language agreed to by the parties limiting the release to issues raised prior to the signing of the MOS.

59Accordingly, the Employer’s preliminary motion that the family status grievance should be dismissed because the issues have already been addressed by the MOS is denied.

C. The Expansion Objection

(i) Position of the Parties

a. Position of the Employer

60The Employer argued that portions of the particulars filed by the Union constitute an improper expansion of the Grievance. Specifically, the Employer submitted that those particulars challenging the Employer’s decision not to grant the Grievor’s requests for compassionate care leave in 2022 improperly expand the family status grievance.

61Relying on the decision of Arbitrator Burkett in Fanshawe College v. O.P.S.E.U., (2002) 2002 CanLII 79073 (ON LA), 113 L.A.C. (4th) 328, the Employer argued that when the statement of the grievance is read in conjunction with the remedy sought there is no link to the request for compassionate leave. The Employer also noted that the allegations regarding the request for compassionate care leave are untimely. Accordingly, the Employer seeks to have those particulars related to the Grievor’s request for compassionate leave excluded.

b. Position of the Union

62The Union argued that arbitrators are required to determine the real as opposed to ostensible grievance. According to the Union, arbitrators should determine the true substance of the grievance and should not be overly rigid in approaching the grievance documents. Grievances are often drafted early, without help from specialists and under time constraints. The Union noted that one of the key principles where an improper expansion is alleged is that cases should be won or lost on the merits of the dispute not on technicality of form. The Union also emphasized that grievances should be given a liberal reading.

63The Union noted that in certain contexts, such as where allegations of discrimination or harassment are made, arbitrators can draw inferences from a course of conduct over a period of time. Grievors should not be required to file separate grievances simply because events may have occurred after the grievance was filed. As long as the post-grievance evidence sheds light on the issue before the arbitrator, that evidence should be admissible. The Union argued that evidence with respect to the Employer’s continuing duty to accommodate falls within this category of evidence.

64The Union argued that the allegations regarding the Grievor’s request for compassionate care leave related directly to her claim that the Employer did not meet the duty to accommodate when it refused her requests to work from home, or work a hybrid schedule, in order to care for her grandmother. According to the Union, the Grievor was requesting permission to take compassionate care leave days instead of sick leave or unpaid leave when she was unable to attend at the workplace because she had to care for her grandmother.

65The Union pointed to examples in the particulars at issue where the Grievor provided specific information regarding her grandmother’s health situation and made it clear that she was requesting compassionate care leave because of her family status accommodation needs. In other words, according to the Union, the request for compassionate care leave was intimately tied to her request for accommodation.

66The Union also noted that on another occasion, the Employer denied the Grievor’s request for compassionate care leave. In that email, the Employer suggested that the Grievor should seek an accommodation. The Union argued that these particulars were directly related to the family status grievance and should not be struck. In this case, the Union is alleging that the Employer failed to accommodate the Grievor over a long period of time and that the refusal to grant special and compassionate leave is simply another example of this failure.

67The Union also noted that the Employer was not alleging that it was prejudiced by the Union raising these allegations. In a similar vein, the Union noted that the Employer was given ample notice of its intent to rely on these facts.

68Finally, the Union noted that in the remedies section of the particulars provided, it did not allege that the Employer’s refusal to grant the Grievor compassionate care leave constituted an independent breach of the Collective Agreement. Rather, the Union relies on the allegations regarding compassionate care leave as examples of the discrimination the Grievor faced on the basis of family status. According to the Union, the refusal to grant the Grievor’s requests constituted a breach of the duty to accommodate.

c. Employer’s Reply

69In reply, the Employer noted that it is trite law that an arbitrator’s jurisdiction is defined by the submission to arbitration. Arbitrators cannot extend, add, substitute or amplify other issues. According to the Employer, the denial of the Grievor’s request for compassionate care leave was never grieved and constitutes a new and discrete issue unrelated to any other grievance filed by the Grievor. These allegations involved a different factual matrix and a different time. The Employer argues it involves a claim that is independent from the family status grievance and requires different facts and different arguments.

(ii) Decision on Expansion Objection

70The parties agree on the applicable principles. Arbitrators should address the real substance of the dispute. An arbitrator’s jurisdiction flows from the grievance and the collective agreement. Grievances should not be won or lost on technicality of form. An arbitrator cannot add, amplify, extend or substitute other issues for those set out in the grievance. Grievances should be given a liberal reading. However, giving a grievance a liberal reading has limits. It does not mean that issues completely unrelated to the grievance can be added to the grievance. Where an issue can be said to be inherent to, or flow from, the grievance, an arbitrator should consider that issue. Conversely, where the issue is not related in any way to the grievance, an arbitrator should decline to consider that issue.

71There are a number of factors arbitrators will consider in determining whether an issue is inherent to the grievance. Arbitrator Burkett’s decision in Fanshawe College is informative in that regard. Arbitrator Burkett held that:

The acid test is whether an issue not encompassed within the grievance that requires the calling of evidence and the making of legal submissions has been raised. Without restricting the authority of an arbitrator to fashion an appropriate remedy at the conclusion of a case, which may or may not differ from the remedy sought, it is the statement of grievance read in conjunction with the remedy sought that defines the essential nature of the grievance and the issues that have been raised by the grievance, thereby allowing an arbitrator to decide if a grievance has been improperly expanded.

72In the circumstances of this case, I am satisfied that the grievance read liberally in conjunction with the remedy requested support the Union’s position. There is no dispute that the grievance alleges that the Employer failed to accommodate the Grievor on the basis of family status. The denial of her request for compassionate care leave is cited by the Union in the particulars as an example of the Employer’s failure. The Grievor is not required to set out all of the examples of the Employer’s alleged failure to accommodate her in the grievance. Imposing such a requirement would be overly technical.

73In addition, there is no allegation that the denial of compassionate care leave is an independent breach of the collective agreement. Rather it is cited as a further example of the failure to accommodate the Grievor on the basis of family status. In that sense the allegations regarding the denial of compassionate care leave fall within the realm of the legal submissions the Union will be required to make in support of its allegation that the Employer failed in its duty to accommodate the Grievor. It does not give rise to a distinct legal issue. This issue flows directly from the core allegations in the family status grievance.

74The Employer is right that these allegations post-date the grievance. However, in the circumstances that factor is insufficient to justify a finding that these allegations constitute an improper expansion of the grievance. Doing so would require the Grievor to file additional grievances for each subsequent alleged Employer failure to accommodate her. Proceeding in such a manner would be inefficient from a time and resources perspective.

75Finally, in this case, as argued by the Union, there is no allegation that the Employer has been prejudiced by these allegations coming after the grievance. The Union set out its particulars in correspondence dated April 3, 2023. As such, it has had considerable notice of the Union’s intention to raise this issue.

76Accordingly, and for all of the foregoing reasons, the Employer’s expansion objection is dismissed.

77This matter will proceed as previously scheduled.