GSB# 2018-3547

UNION# 2018-0108-0050

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (McCool)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake

Arbitrator

FOR THE UNION

James Craig Morrison Watts Hurtado Counsel

FOR THE EMPLOYER

Braden MacLean Treasury Board Secretariat Legal Services Branch Counsel

SUBMISSIONS

August 18, 2025 (final submission)

Decision

1The Board is seized with a grievance dated November 27, 2018, filed by Ms. Angela McCool (“grievor”) who at the time worked at the Elgin Middlesex Detention Centre as a correctional officer. It reads:

“I grieve the employer is in violation of articles 2, 3, 69.1, 69.2 and 9.1 of the collective agreement and of the fair and equitable treatment of employees of any legislation/jurisprudence. After applying for WSIB due to an unsafe workplace and numerous other reasons, the employer refused to pay me the first 65 shifts I am entitled to as per the collective agreement. They are stating they don’t have to pay me over 30 days if WSIB has not made a decision, then sent me a letter stating I owe them for the first 30 days they did pay me. I believe this is direct refusal for my health and safety involvement”.

2This decision determines a preliminary motion by the employer requesting that the grievance be dismissed on the basis that it is settlement barred. The union opposed the motion and both parties filed relevant documents and written submissions together with legal authorities. The employer relies on a Memorandum of Settlement signed on July 10, 2019, by OPSEU and the Ministry of the Solicitor General (“the 2019 MOS”) with respect to five other grievances.

Employer Submissions

3Counsel agreed that the instant grievance is not among the five numbers listed in the style of cause page of the 2019 MOS, but relied on the following “release clause” set out as paragraph 8 of the MOS:

“The grievor and the union hereby release and forever discharge the crown in Right of Ontario and the employer, its servants, agents and directors from any and all actions, causes of action, grievances, complaints, claims and demands of every nature and kind, directly or indirectly related to and arising out of the circumstances giving rise to the above-noted grievance and/or arising out of the grievor’s employment with the employer to the date of this Memorandum of Agreement, including but not limited to , any and all claims arising under the collective agreement, under the employer’s Respectful Workplace Policy/ Workplace Discrimination and Harassment Policy, the Ontario Human Rights Code, the Public Service Act of Ontario Act of 2006, and its regulations and/or directives, and the Employment Standards Act, 2000.

4Counsel drew my attention to the words “… arising out of the grievor’s employment with the employer to the date of this Memorandum of Agreement”, and submitted that the grievor and the union thereby released the Ministry of Solicitor General from all claims arising out of the grievor’s employment with the employer up to the date of the MOS, i.e. July 10, 2019. The parties thereby clearly gave the employer a “clean slate” in respect of all the grievor’s employment related issues.

5Counsel submitted that if the union claims that there was some understanding at the time the 2019 MOS was signed that the instant grievance is not captured by the broad release clause, that runs counter to paragraph 4 of the MOS which states that it is the “entire agreement” between the parties. He stated that paragraph 4 requires the Board to interpret paragraph 8 within the four corners of the collective agreement.

6Counsel submitted that the union and the employer are sophisticated parties. If they intended to carve out the instant grievance from the broad release clause or to make the settlement “institution specific” they could have done so but did not.

7Employer counsel referred to the Board decision in Re Fitzpatrick 2021-1833, (Beatty) which applied the principles of interpretation in the judgement of the Supreme Court of Canada in Sattva Capital Corp v. Creston Moly Corp., 2014 SCC 53. He urged me to do the same and not allow the union to go behind the agreement it made. He submitted that I should strictly apply the principle of the sanctity of negotiated settlements and uphold the need for certainty and finality in labour relations matters, by dismissing the grievance.

Union Submissions

8The union disagreed that the instant grievance is barred by virtue of the 2019 MOS. Union counsel submitted that the employer makes its motion by cherry-picking one provision in the 2019 MOS, i.e. Paragraph 8 and ignoring several other provisions in it. He argued that paragraph 8 is a general clause, but there are other provisions in the MOS that are specific as to what is being settled. He submitted that to read a general clause in isolation without reading the MOS as a whole, including specific provisions that contradict the general provision, is contrary to well established rules of interpretation in labour arbitration.

9Union counsel pointed out the following as contradicting the employer’s reliance on the release clause. First, the MOS lists the GSB file numbers of the five grievances being settled by the 2019 MOS. The file number of the instant grievance, i.e. 2019-3547, is not included in that list.

10Union counsel also relied on the three introductory paragraphs in the 2019 MOS which he referred to as the “whereas clauses”. The first whereas clause sets out the file numbers of the same five grievances listed at the top of the MOS. That also does not include the file number of the instant grievance.

11The second whereas clause states that the parties wish to facilitate a mutually agreeable resolution “of the above-mentioned grievances” – again “the above-noted grievances” is a reference to the five listed grievances.

12The final introductory paragraph states that the parties agree to the full and final settlement “of the above-noted grievances, without precedent and without prejudice to future and/or similar matters”, and Paragraph 2 of the terms of settlement in the MOS reads “the union and the grievor agree that “the above-noted grievances” are hereby fully and finally resolved and withdrawn. Counsel submitted that all these references to “the above-noted grievances” are references only to the five listed grievances which did not include the grievance presently before the Board.

13Finally, counsel pointed out that paragraph 4 of the MOS states that the MOS represents the entire agreement between the parties “with respect to the above-noted grievances”, and that there are no verbal or other agreements beyond those contained in this MOS.

14Union counsel pointed out that all these provisions refer to the five grievances listed and therefore apply only to those grievances. He argued that therefore the release clause at paragraph 8 cannot be expanded beyond the “above-noted grievances”. That would be to read paragraph 8 in isolation, ignoring all the specific provisions limiting the MOS to the five listed grievances. The parties have clearly turned their mind to the specific grievances they wished to settle and have listed those grievances.

15Union counsel agreed with employer counsel about the importance of the policy that once a grievance is settled, finality must be given to the terms of settlement. However, he submitted that finality attaches only to what was settled by the parties. The employer is attempting to expand the scope of the MOS by including a grievance the parties never intended to settle.

16Counsel also pointed out that all five listed grievances settled by the 2019 MOS arose out of the grievor’s employment at the Maplehurst Correctional Institution in 2017-2018. The instant grievance in contrast relates to events that occurred at the Essex Middlesex Detention Centre, a different correctional institution. Counsel argued that the employer, as a very sophisticated “labour relations party” ought to have included the instant grievance as a grievance being settled if it wished to settle that. It did not do so but now attempts to bring it within the scope of the MOS through the release clause.

17Union counsel distinguished the decision in Re Fitzpatrick (supra). He relied on Re Corporation of the Town of Oakville, (Nyman) 2024 CanLII 34204, and submitted that it does not support the employer’s motion. Counsel submitted that the Board should reject the employer’s argument that if the parties intended to exclude the instant grievance from the scope of the release clause in the MOS, they should have expressly included language to that effect. He submitted that to accept that argument would be to reverse the onus, contrary to the well-established principles of interpretation that only matters settled by the terms set out in a MOS are captured by it and that specific provisions in a MOS prevail over general provisions.

18Union counsel submitted that the employer’s reliance solely on the broad release language in paragraph 8 of the MOS is inconsistent with the MOS read as a whole, and that therefore, the employer’s motion should be dismissed.

Employer Reply Submissions

19Counsel submitted that the Corp. of the Town of Oakville, (supra) is distinguishable in that the “release” asserted there was only by way of a “whereas” clause. It did not even include a release clause. The instant MOS in contrast has a separate “robust” release clause, releasing the employer from “all … grievances … of every nature and kind directly or indirectly related to and arising out of the circumstances giving rise to the above-noted grievance.”

20Counsel reiterated his submissions that this language is clear and should be given effect, and that the employer’s motion should be upheld.

DECISION

21It is not necessary to review the extensive jurisprudence on principles of interpretation since both parties agreed about the importance of the principle of the sanctity of grievance settlements. In a recent decision, in Re Bonnett, 2020-0593 (Dissanayake) the Board endorsed a summary of principles that apply when interpreting collective agreements, set out in Ontario Power Generation 2012 CanLII 81972 (Surdikowski), and concluded that those principles of interpretation are also applicable in interpretation of grievance settlements. In Ontario Power Generation, the arbitrator wrote as follows:

“The fundamental rule of Collective Agreement interpretation is that the words used must be given their plain and ordinary meaning unless it is clear from the structure of the provision read in context that a different or special meaning is intended, or the plain and ordinary meaning result would be illegal or absurd. All words must be given meaning, different words are presumed to have different meanings, and specific provisions prevail over general provisions. Both words that are there and the words that are not there are significant”.

22In Re Bonnett, at p.10 the Board wrote that “Where there is disagreement between the parties as to the scope or meaning of any terms in a MOS the arbitrator’s task is to try to ascertain the intention of the parties based on the language used in the MOS. It is no different than when interpreting provisions in a collective agreement. The intention of the parties is paramount.”

23In Re Bonnett, like here, the Board was determining a motion by the employer, that the grievance before the Board should be dismissed on the grounds that to it would be contrary to the principle of sanctity of settlements to allow the grievance to proceed. There the grievance before the Board had been filed shortly after a previous grievance by the same grievor had been resolved and withdrawn by the execution of a MOS.

24Employer counsel there submitted that the grievor was clearly attempting to re-litigate matters previously settled which would be contrary to the sanctity principle. The employer’s position is set out at para. 9 of the decision as follows:

Counsel emphasized that the MOS releases the employer from “any and all actions giving rise to the grievance”. In the instant grievances the matters the grievor is seeking to litigate are the very same allegations made and settled in the MOS. That is, that the employer failed to properly investigate and take action when the grievor complained about an unknown person harassing her at the workplace. Counsel submitted that when a grievance alleging harassment is settled, the employer has no legal obligation to investigate that alleged harassment. As she put it, the MOS means “those matters are over”.

25The union’s position is set out at paragraphs 12-13 as follows:

Union counsel pointed out that when employer counsel read out and relied on the release clause in the MOS, she omitted key words in that clause. While the clause releases the employer from any and all actions, causes, grievances etc., the parties have explicitly put a time-limit on what is released. The actions, causes, grievances released are those “arising out of the circumstances” giving rise to the grievance “up to the date of signing of the Memorandum of Settlement”. Therefore, the parties only agreed to release claims based on circumstances that occurred up to the time the MOS was signed.

Counsel pointed out that it is undisputed that the circumstances that gave rise to the instant grievances took place on 27th of June 2020, when the grievor received a harassing message. That is the incident that gave rise to the grievance before the board, and it clearly post-dates the MOS signing date. Therefore, the release clause does not apply to those circumstances.

26In emphasizing the importance of the principle of sanctity of grievance settlements, at para. 21 the Board wrote the following:

In my view, even in the absence of a release clause, it must be presumed that once a certain matter is settled, the parties intend that the same matter may not be re-litigated in the future. That is simply common sense. In other words, unless the parties have included language indicating that the settled matter or some aspect of it may be re-litigated, generally or before a particular forum, or there is a legislative or other legal right, the presumption must be in favour of no re-litigation.

27In dismissing the employer’s motion, at para. 22 the Board ruled:

In the instant case, there is no doubt that there is an extensive and broad release clause, as employer counsel correctly pointed out. However, that release is explicitly made subject to a time limit. The parties have agreed that subsequent grievances precluded by the release are only those “directly or indirectly directed to and arising out of the circumstances giving rise to the grievance, up to the date of signing of the Memorandum of Settlement”. Even if it is accepted that the matters settled previously by the MOS and the matters grieved in the instant grievances are related and arise out of the same circumstances, as employer argued, for the release clause to apply it is necessary to see whether the matters grieved herein meets the time-limit “up to the date of signing” the parties have agreed to in the MOS. The union was very clear that the grievance is only about the harassing message the grievor received after that date the MOS was signed. The incident in question and the filing of the grievance, post dated the date of signing. Thus it is outside the time limit the parties had agreed to in the MOS. (emphasis added)

28In the instant case the release clause is very similar. The 2019 MOS has a broad release clause at para 8. It provides that the release of “actions, causes of action, grievances.” etc. are only those “directly or indirectly related to and arising out of the circumstances giving rise to the above-noted grievance”. However, the clause does not end there. Like in Re Bonnett (supra) it sets out a temporal limitation as to what is being settled in the MOS. It also limits the release to issues arising out of the grievor’s employment with the employer, only to the date of this memorandum of agreement.

29However, while the language of the two release clauses is similar, the facts in the two cases are significantly different. In Re Bonnett (supra), the incident that was grieved took place after the MOS was signed, and the filing of the grievance also post-dated the execution of the MOS. In the present case, the MOS was signed off on July 10, 2019. It is undisputed that the allegations in the grievance presently before the Board relate to issues in 2018, and the grievance filing date also pre-dated the signing of the MOS. All of that, therefore meet the time limit of “to the date of this Memorandum of Agreement” in paragraph 8.

30The Board agrees that the MOS dated July 10, 2019, was executed to resolve the five grievances listed in it. Therefore, as union counsel pointed out, the “whereas” clauses also refer only to those five grievances. However, parties engaging in settlement discussions are able to, and often negotiate, other terms as a condition of their agreement to settlement. In paragraph 8 of the MOS the parties have done exactly that. In that paragraph, as a condition of settling the five grievances, the employer has obtained the union’s concession that the grievor and the union release the employer from any and all clauses of action, including those under the employer’s Respectful Workplace Policy, the Workplace Discrimination Policy, the Human Rights Code, the Public Service Act of Ontario and regulations and/or directives under it, and the Employment Standards Act, 2000, arising out of the grievor’s employment with the employer to the date of the MOS. All of these are released in addition to grievances.

31None of these additional releases, including the 2018 settlement, are mentioned in any of the “whereas clauses” the union is relying on. In short, as a condition for the employer’s agreement to settle the five listed grievances, the grievor and the union have given up the right to pursue grievances, as well as a number of other rights they may have had up to the date the MOS for the five grievances was signed.

32The Board finds that all those releases contained in paragraph 8 of MOS, including grievances up to the date of the MOS are enforceable, unless found to be illegal or absurd. The intention of the parties is clear in the plain language of paragraph 8 and must be given effect. Accordingly, the employer’s motion is upheld and the grievance is dismissed.