GSB# 2020-1044

UNION# 2020-0604-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Vlahovich)

Union

• and -

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

Employer

BEFORE

Sara Slinn

Arbitrator

FOR THE UNION

Katherine Ferreira Koskie Minsky LLP Counsel

FOR THE EMPLOYER

Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel

HEARING

December 17, 2024; June 2 and August 12, 2025, September 2025 (final written submissions)

Decision

I. INTRODUCTION

1Vannaleigh Vlahovich (the “Grievor”) is employed as a probation and parole officer (“PPO”) at the Elliot Lake Probation and Parole Office (“Elliot Lake”). On April 20, 2020, the Grievor was present when a client brought a weapon into a secure area, and discharged it, fatally injuring himself. On May 28, 2020 the Union filed a grievance on behalf of the Grievor, claiming that the Employer failed to take all reasonable precautions to protect the grievor’s health and safety in the workplace, in violation of the Collective Agreement and the Occupational Health and Safety Act, RSO 1990, c O.1 (“OHSA”).

2This decision addresses two preliminary motions brought by the Employer to dismiss this grievance.

3On June 25, 2020 the Ministry of Labour, Training and Skills Development ("MOL") Inspector’s final field visit report (“FVR”) and decision were issued following the Inspector’s investigation of the Elliot Lake incident. The Employer’s first motion asserts that the grievance should be dismissed on the grounds of issue estoppel, abuse of process, or collateral attack as the matter has been determined by the orders and decisions of the Inspector.

4Two other incidents related to weapons and safety in the workplace occurred in 2013 and 2015 at two other Probation and Parole Offices – the Newmarket and Barrie Offices – which are the subject of appeals before the Ontario Labour Relations Board (“OLRB”) of MOL Inspectors’ orders issued under the OHSA (the “Newmarket Matter” and the “Barrie Matter”; together, the “OLRB Matter”). The OLRB Matter concluded with a memorandum of agreement and consent order issued by the OLRB on October 30, 2020 (the “OLRB MOA”).

5The Employer’s second preliminary motion seeks dismissal of the grievance on the basis that it has been resolved by the OLRB MOA, or based on the doctrines of issue estoppel, abuse of process, or collateral attack. In the alternative, the Employer asserts that the grievance should be deferred pending further steps in the OLRB matter.

6The Union opposes these preliminary motions and requests that the motions be dismissed and that the grievance be allowed to proceed to a full hearing on the merits. These motions were argued over several days of hearings, followed by a conference call, and supplementary written arguments.

7For the reasons that follow, the Employer’s first motion is granted and, therefore, the grievance is dismissed.

II. RELEVANT LEGISLATION

8Sub-section 25(2) (h) of the OHSA imposes the following obligation on employers:

25(2) Without limiting the strict duty imposed by subsection (1), an employer shall,

(h) take every precaution reasonable in the circumstances for the protection of a worker;

9Sub-section 51(1) of the OHSA provides for mandatory reporting of workplace death or injury:

51 (1) Where a person is killed or critically injured from any cause at a workplace, the employer shall notify an inspector, and the committee, health and safety representative and trade union, if any, immediately of the occurrence by telephone or other direct means and the employer shall, within forty-eight hours after the occurrence, send to a Director and to the committee, health and safety representative and trade union, if any a written report of the circumstances of the occurrence containing such information and particulars as the regulations prescribe.

10Section 61 of the OHSA provides for appeal to the OLRB of an Inspector’s order:

61 (1) Any employer, constructor, licensee, owner, worker or trade union which considers himself, herself or itself aggrieved by any order made by an inspector under this Act or the regulations may appeal to the Board within 30 days after the making of the order.

(5) In this section, an order of an inspector under this Act or the regulations includes any order or decision made or given or the imposition of any terms or conditions therein by an inspector under the authority of this Act or the regulations or the refusal to make an order or decision by an inspector.

III. BACKGROUND

11The background and context to the preliminary issues is complicated, spanning many years and multiple proceedings. The parties have submitted nearly 500 pages of documents concerning these complex and protracted matters. For the purposes of these preliminary motions the Employer has agreed to treat the Union’s particulars as true and provable.

A. Elliot Lake Incident, Inspection and Grievance

12On April 20, 2020 the Grievor had a scheduled meeting with a client she was supervising (the “Client”). At this meeting the Client brought a weapon into a secure area and discharged it, fatally injuring himself. This gave rise to an MOL Inspector’s decision and orders and to the grievance that is before me.

13The Grievor had been supervising the Client since about September 2019. As a result of an apparent violation by the Client of his parole conditions, the police informed the Grievor that they would arrest the Client at the upcoming, April 20, 2020, meeting scheduled between the Grievor and Client at the Elliot Lake Office.

14In April 2020 the Elliot Lake Probation and Parole Office did not have lockers for clients to place their personal items into before entering secure areas of the office, nor did it have screening machines or engineering controls, such as metal detectors, that could be used to screen for a gun or firearm. Due to COVID-19 restrictions in place in April 2020 and the Employer’s policy that PPOs not see a client alone, the Grievor’s appointment with the Client was held in a secure interview room ("SIR"). During interviews, clients are alone in the SIR. The PPO conducting the interview is separated from the client by a glass barrier. The glass is not ballistic bulletproof. The door to the SIR is locked and the PPO must buzz the door in order to permit a client or others to enter the SIR.

15On April 20, 2020, the Grievor had let the Client into the SIR for the interview, and the Grievor was returning to speak with the Client when the police arrived. The Grievor told the Client that the police were there to see him. The police told the Client to come out of the SIR, but the Client refused. The Grievor buzzed the door to allow the police to enter the SIR. At this point the Grievor brought out a gun and fatally shot himself; no one else was injured by the Client’s weapon.

16The Employer notified the MOL of the fatality, in compliance with the s.51 OHSA requirement for notification of a death or critical injury in a workplace. Consequently, MOL Inspector, Sylvie Laperriere, investigated the April 20, 2020 events, issuing a series of three FVRs and associated orders, dated April 20, 2020; May 14, 2020; and, June 25, 2020. In response to the Inspector’s order the Employer submitted two workplace violence reassessments to the MOL, the first dated May 8, 2020, and the second dated May 28, 2020.

17Briefly, the Inspector’s decisions and orders in the three FVRs were as follows:

• April 29, 2020 FVR: The Inspector issued an order under s. 32 of the OHSA requiring the Employer to complete a workplace violence risk reassessment. As part of the FVR narrative the Inspector also identified the items that the Employer should consider reviewing as part of this assessment. These included: protection of workers from concealed weapons in secure areas of the workplace; planned arrests in secure interview rooms/secure areas of the workplace; and, protection of workers in reporting/court offices.

• May 14, 2020 FVR: Among the Inspector’s findings was that the Employer’s workplace violence risk re-assessment, dated May 8, 2020, did not comply with the April 29, 2020 order. The Inspector directed the Employer to “consider the nature of the workplace, the type of work and conditions", and extended the deadline to May 29, 2020 to comply with the order.

• June 25, 2020 FVR: The Inspector decided that the second workplace violence risk reassessment submitted by the Employer, dated May 28, 2020, complied with the order.

18Neither the Union, nor the Employer, nor any other person or party appealed the Inspector’s decision.

19On May 28, 2020 the Union filed a grievance on behalf of the Grievor, claiming the following:

I grieve that the employer has failed to take all reasonable precautions for my health and safety in the workplace, specifically but not exclusively in relation to the incident of April 20, 2020, in violation of articles 2, 9, the Occupational Health and Safety Act, and any other article, law or legal principle that may apply.

20The grievance form identifies the following as the settlement desired:

An order for full compliance; 3rd party safety audit; install any necessary engineering controls to prevent the introduction or use of firearms in the workplace; and any other remedy required to make me whole and my workplace safe.

21The Union, in its particulars, also set out the following (at para. 51):

The Union reserves the right to amend the requested remedies and/or request additional remedies, including but not limited to, the installation of ballistic glass, the installation of metal detector(s) and damages.

B. OLRB Matter: The Newmarket and Barrie Incidents

22I now turn to the Newmarket and Barrie Matters, which were two separate appeals to the OLRB of MOL Inspectors’ orders, consolidated into the OLRB Matter. The Employer, referred to as the “Ministry of Community Safety and Correctional Services” in the OLRB Matter, is now known as the “Ministry of the Solicitor General.”

1. Newmarket Matter

23The Newmarket OLRB Matter arose out of an October 16, 2013 incident at the Newmarket Probation and Parole Office, in which a client brought a knife into a secure area of the workplace. No injuries resulted.

24MOL Inspector Norm Ratcliff investigated this incident and issued a series of FVRs and associated orders (dated November 25, 2013; December 4, 2013; February 21, 2014; July 8, 2015; December 1, 2015; and January 6, 2016). Pursuant to these FVRs the Employer submitted two compliance plans to the MOL, dated September 30, 2015 and December 18, 2015.

25In February 2016 the Employer appealed the Inspector’s orders and decisions dated July 8, 2015; December 1, 2015; and, January 6, 2016, requesting that the OLRB rescind the original order and/or in the alternative rescind the Inspector’s subsequent decisions.

2. Barrie Matter

26The Barrie OLRB Matter resulted from a December 15, 2015 incident at the Barrie Probation and Parole Office in which a client brought a knife into a secure area. The weapon was surrendered without any injuries. This incident was investigated by MOL Inspector Wayne Murphy, producing an FVR and associated orders issued on February 11, 2016, and leading to submission of a compliance plan by the Employer, dated March 8, 2016.

27On March 11, 2016 the Employer appealed the Inspector’s orders, requesting that the OLRB rescind the orders and, in the alternative, find that the Employer’s compliance plan satisfied the orders.

3. Consolidated OLRB Matter

28The Newmarket and Barrie OLRB Matters were eventually consolidated. The Employer, Union and MOL then entered into two procedural memoranda of agreement, the first dated April 4, 2016 (“April 2016 MOA”), and the second dated December 8, 2016 (“December 2016 MOA”). On October 30, 2020, the OLRB Matter was resolved by the OLRB MOA and a consent order, incorporating a memorandum of agreement, adjourning the OLRB Matter sine die was issued.

29The interpretation of the terms of these three memoranda of agreement, and particularly of the OLRB MOA, are relevant to the first motion in the preliminary dispute before me. There is no dispute that the Union and Employer were parties to the OLRB Matters and to the OLRB MOA.

30Key elements of the April 2016 MOA include the following:

• The recitals set out, in part, the parties’ positions, and include:

Whereas the Ministry of Labour has taken the position that the Employer's measures are not sufficient at this time because inter alia they are passive measures and that the Orders did not require metal detectors to be implemented as a [sic] universal protective measures;

Whereas the Employer has taken the position in its Appeals that it has taken every precaution reasonable in the circumstances for the protection of a worker;

Whereas the Union takes the position that the Employer has not taken every precaution reasonable in the circumstances for the protection of a worker;

• Agreement on the questions that would be before the OLRB (article 5):

5. The parties agree that the Board will have the jurisdiction and will be asked to address the following questions at the hearing:

a) is the [Active Risk Based Screening], and other measures implemented, a sufficient precaution reasonable in all the circumstances, for the purposes of s. 25(2)(h) and s. 32 of the Act?;

b) is a universal method for weapons screening, including a metal detector and/or a handheld metal detector, a precaution reasonable in all the circumstances, for the purposes of s. 25(2) (h) and s. 32 of the Act? It is agreed that the parties can adduce evidence and make submissions with respect to the appropriate training, orientation and personal protective equipment for the person to use in connection with the handheld metal detector.

• Agreement on admissibility of evidence (article 7). Agreement that the Employer would undertake a pilot project for the use of Active Risk Based Screening (“ARBS”) at the Newmarket and the Barrie Probation and Parole Offices, on or before June 1, 2016.

31The Union’s extensive response to the Employer’s appeals, dated December 1, 2016, sought dismissal of these appeals, setting out its position and its request as follows:

3. … It is the Union’s position that, as determined by the Inspectors, the Employer has not taken every reasonable precaution in the circumstances for the protection of workers from the hazard posed by the introduction of weapons. Further, it is OPSEU’s position that the Employer should be required to implement a universal method for weapons screening, including but not limited to metal detectors, at Probation and Parole Offices.

4. Further, in light of the length of the Investigation by the MOL at multiple Probation and Parole Offices and the fact that the Employer has consistently failed to comply with the Orders issued by the MOL Inspectors, the Board should Order that the Employer implement a universal method for weapons screening, including but not limited to, metal detector, at Probation and Parole Offices across the Province of Ontario and also implement appropriate training methods associated with the use of the metal detectors.

32The second procedural memorandum of agreement, the December 2016 MOA, included recitals setting out the parties’ positions and referencing and reproducing the agreed terms of the April 2016 MOA. It also included the parties’ agreements on procedural matters, including that: the Union agreed that it sought a remedy in relation to Area Offices and Satellite Offices; the Employer would issue a report of the statistical result of the ARBS pilot project to the parties on or before January 27, 2017; and, a schedule for submission of supplementary pleadings and for production and other procedural matters. The Employer and Union submitted supplementary pleadings in the OLRB Matters, dated February 15, 2017 and March 1, 2017, respectively.

33On October 30, 2020 the OLRB issued the OLRB MOA, a consent order in accordance with a memorandum of agreement entered into by the Union and Employer, adjourning the Newmarket and Barrie OLRB Matters sine die pursuant to the terms of the settlement.

34The recitals in the OLRB MOA included that: “AND WHEREAS the Parties wish to address the issue of weapons being introduced into the secure area of the workplace….”

35The memorandum of agreement incorporated into the OLRB MOA included:

• The following terms:

1. This Agreement is without prejudice or precedent to any position(s) the parties may take in any other proceedings.

2. Nothing in this Agreement precludes the Employer’s, workers’ and Union’s right to enforce their rights under the OHSA inclusive of a request that a MLTSD Inspector investigate any matter.

3. As provided herein, the Employer will continue with its current program of conducting security reviews and risk assessments regarding health and safety precautions and procedures for workers and access controls and weapons at probation and parole offices in Ontario. Without limiting the generality of the foregoing, the security review and risk assessment will continue to address the issue of weapons entering the secure area of probation and parole offices.

4. The Appeals (OLRB File Nos. 2902-15-HS and 3240-15-HS) are adjourned sine die pending the full recognition of the terms of this Agreement.

5. Nothing herein precludes either party from seeking any or all remedies from the Board or from relying on the Employer’s security review and/or the review by the independent third party in any submissions to the Board with respect to these Appeals.

6. This Agreement is enforceable as an order of the Ontario Labour Relations Board pursuant to s. 96(7) of the Labour Relations Act, 1995 and the Board shall remain seized in respect of any dispute regarding the administration, application, violation and/or interpretation of the Agreement.

• Detailed provisions for establishing and executing a third-party review of:

[T]he efficacy, installation, feasibility and use of metal detectors in probation and parole office, including but not limited to, any health and safety considerations related to worker proximity and/or exposure to metal detectors and the efficacy of ARBS pilot and program, including but not limited to training on the application of ARBS as well as ARBS processes and documentation requirements (para. 4)

• Provision that disputes over selection or engagement of the independent third-party reviewer would be returned to the OLRB Vice-Chair or his alternate for resolution.

• Detailed scope of the independent third-party review and other details about how the review would be conducted.

36The Employer retained Deloitte LLP to conduct the independent third-party review and report outlined in the OLRB MOA. The final report was produced November 28, 2022.

37In July 2024 the Union applied to the OLRB for enforcement of the OLRB MOA, alleging that the Employer breached the terms of the OLRB MOA: that the required process for the third-party review has not been followed and that the content of the review is not responsive to the OLRB MOA. That dispute was ongoing at the time of the hearing of the preliminary issues before me.

IV. SUMMARY OF PARTIES’ ARGUMENT

A. Employer’s Argument

1. Arguments Relating to the Elliot Lake Incident

38The Employer contends that the grievance should be dismissed on the basis of issue estoppel, abuse of process, or as a collateral attack on the Inspector’s orders arising from the Elliot Lake incident. If the Union disagreed with the Inspector’s decisions, then it was incumbent on the Union to engage the OHSA appeal process – not file a grievance. The Employer asks the Board to apply the tests and rationales from the decisions in Re OPSEU and Ontario (Ministry of the Solicitor General), 2024 CanLII 52265, 360 L.A.C. (4th) 421 (“OPSEU GSB”) upheld in Ontario Public Service Employees Union v. Ontario (Solicitor General), 2025 ONSC 1801 (“OPSEU Div. Ct.”) which it says is “on all fours” with the present case, and those from Toronto Transit Commission v. A.T.U., Local 113, [2010] 197 L.A.C. (4th) 265 (“Toronto Transit Commission”).

39The Employer submits that the preconditions for application of issue estoppel are satisfied. The decision is final: the Union did not appeal the Inspector’s decisions. The parties are the same: the Employer and Union are parties to the grievance, and it is the same Union and same Employer involved in the Inspector’s field visits and FVRs. Further, the Employer says the proceedings address the same question: in both cases the issue is whether or not the Employer’s OHSA obligations required the Employer to do anything more, such as adding engineering controls. Whether through the OHSA or the grievance process, the Employer says the questions are entirely about the Employer’s obligations under the OHSA – there is no claim that the Collective Agreement provides for some enhanced or specific Employer obligation beyond the OHSA.

40The Employer contends that the same conclusion should be reached here, and for the same reasons as in the OPSEU GSB decision as upheld in OPSEU Div. Ct., about whether to exercise discretion to apply issue estoppel, including that: there is no real concern about unfairness or lack of expertise regarding the Inspector; the purposes and stakes of the proceedings are identical though the processes are somewhat different; and, it is not unfair to require the Union to follow the s.61 appeal process through.

41Regarding collateral attack, the Employer says that the same rationale and concerns apply in the present case as in the OPSEU GSB decision. That is, an inspector can be, and usually is, a party to an appeal, but no notice has been given to the inspector for the grievance. In essence, the Employer asserts, this cuts the MOL out of the process. By grieving instead of following the OHSA appeal mechanism where the MOL would be a party, the Union is doing a “run around” the Inspector’s order. The MOL is engaged in the question of the Employer’s OHSA responsibilities and, in that context, it is improper for the Union to sidestep the MOL by dealing with the question exclusively through the grievance process.

2. Arguments Related to the OLRB Matter

42The Employer says that the issues in the grievance are the same in substance as those in OLRB Matters, and settled by the OLRB MOA. Therefore, it submits that these issues cannot be relitigated through this grievance. Proceeding with the grievance would be contrary to the parties’ expectation of closure and forces the Employer to relitigate identical concerns that were intended to be conclusively resolved.

43Acknowledging differences exist between the OLRB Matters and the grievance, in that they originated at different Probation and Parole Offices and that the OLRB Matters arise from s.61 OHSA appeals rather than a grievance, the Employer says these are differences in form not substance, and that matters need not be identical for a settlement to preclude relitigation.

44The Employer emphasizes the importance of finality of settlements in labour relations, asserting that to allow the Union to proceed with this grievance would undermine those principles, and lead to unnecessary cost and unpredictability, including considerable overlap between the evidence led in the OLRB Matters and the evidence that would be necessary in the grievance. Properly interpreted, the terms of the OLRB MOA preclude the grievance from proceeding. The parties’ expectation was that the same matter would not reappear in a different guise, to be litigated again immediately despite the OLRB MOA. Both the timing of events, such that both parties were aware of the Elliot Lake grievance at the time of the OLRB MOA, and the absence of an explicit carve-out for this grievance, are critical to interpreting this agreement. The Employer also argues that the “without prejudice” provision should be found to bar the grievance in this case.

45In support of these arguments the Employer relies on: Re North American Lumber Ltd. v. I.W.A., Local 2693, [1992] 25 L.A.C. (4th) 402, 1992 CanLII 14636 (ON LA) (Marcotte); U.F.C.W., Locals 175 & 633 v. Cuddy Food Products, [2003] 121 L.A.C. (4th) 56, 2003 CanLII 89628 (ON LA) (Etherington); and, Re Inergi LP and Society of Energy Professionals (INER-2014-0163), 2015 CarswellOnt 14615, [2015] O.L.A.A. No. 357, 124 C.L.A.S. 206 (Burkett).

46The Employer argues that the Board ought to undertake an overall balancing of interests to determine whether the grievance is barred by the OLRB MOA and urges the Board to adopt the reasoning and considerations applied in Re OPSEU and Ontario (Ministry of Health and Long-Term Care) (Dale), 2002 CarswellOnt 10149 (Abramsky) and Re Ontario (Ministry of Labour) and OPSEU (Waraich), 2005 CarswellOnt 10920, 79 C.L.A.S. 504 (Watters) and, Re Ontario (Ministry of Children and Youth Services) and OPSEU (Patterson), 2006 CarswellOnt 10949, 87 C.L.A.S. 378 (Abramsky).

47The Employer further submits that the grievance should be dismissed on the basis of issue estoppel, abuse of process, or as a collateral attack on the OLRB MOA. The Employer relies on the following authorities: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 SCR 77 (“Toronto City”); Re OPSEU and Ontario (Ministry of Health) (Ali), 2023 CarswellOnt 11201, 2023 C.L.A.S. 415; Re OPSEU and Ontario (Ministry of the Solicitor General), Re 2024 CarswellOnt 7395, 2024 CanLII 52265, 360 L.A.C. (4th) 421; and, Ontario Public Service Employees Union v. Ontario (Solicitor General), 2025 ONSC 1801.

48In light of the ongoing dispute about enforcement of the OLRB MOA, the Employer submits that, in the alternative, that if the Board has any question about whether the OLRB Matters are fully resolved, it is appropriate for the parties to defer the current grievance pending the resolution of the enforcement dispute at the OLRB, rather than have parallel proceedings dealing with the same issue.

B. Employer’s Reply and Supplementary Written Submission

49The Employer contends that the grievance is about statutory rights, not Collective Agreement rights, there is nothing specific in the Collective Agreement relevant to the issues in the present grievance, and Articles 2 and 9 simply incorporate by reference the obligations under OHSA. Further, the particulars contain no suggestion that management did or failed to do anything particular in the events of that day. Instead, it complains about the status quo at Probation and Parole Offices: no metal detectors, ballistic glass or other engineering controls in use.

50The Employer argues that because the only Collective Agreement rights cited in the grievance are essentially the OHSA, and the OLRB has the same power to address, interpret, and apply the OHSA as the Board, it is immaterial here whether the OLRB has jurisdiction to review the Collective Agreement.

51The Employer says it would be absurd to interpret the OLRB MOA as allowing the grievance to proceed notwithstanding the OLRB MOA. It says the crucial question is what possible benefit or reason would exist for the Employer to agree to that if it didn’t resolve all the issues.

52The Employer recognizes that at the outset of the Newmarket and Barrie Matters the Elliot Lake event had not occurred. But by the time of the OLRB MOA, the Elliot Lake incident had occurred, and the grievance was filed and was known to the parties. Therefore, this is important context for understanding the OLRB MOA and the parties’ intentions.

53The Employer asserts that what is critical here is not whether s.61 of the OHSA is the mechanism for appeal, but the legal question that is being dealt with. There may be technical differences between s. 61 OHSA appeals and grievances, but the Employer says the Board should consider the substance of the issues in the disputes which is the same: interpretation of the OHSA, and whether the Employer was required to have certain kinds of controls in place as a reasonable precaution.

54The Employer emphasized that, in the same way the OLRB says it does not examine inspectors’ conduct in the s.61 OHSA appeal process, neither would the Board do so in its arbitration process.

55Regarding case law dealing with interpreting the OHSA as remedial legislation, the Employer submits that these principles are of no assistance here because the Board is not being asked to apply the OHSA. In any event, the Employer says, application of those principles would not change the application of those doctrines.

56With respect to whether the Board should exercise its discretion to apply issue estoppel and questions of general fairness, the Employer relies on the rationales of the following arbitration decisions, which it says are on all fours with the present matter: OPSEU GSB, OPSEU Div. Ct., and Toronto Transit Commission. As to the Union’s choice to grieve rather than to appeal the Inspectors’ decisions in the Elliot Lake incident, the Employer submits that there is no unfairness in applying issue estoppel since the appeal process was fully available to the Union. The Union simply chose not to access that appeal process. The Employer also contends that, while the Union emphasizes the differences between the inspection process and arbitration, this ignores what would occur if an appeal to the OLRB is filed. The Employer argues the OLRB proceeding is court-like, and similar to arbitration.

57The Employer submits that the OHSA s. 51 mandatory reporting obligations do not affect whether abuse of process doctrines ought to be applied. Relevant here is whether the same issues in this grievance could have been raised if the Union had accessed the appeal process, and considerations of judicial economy and finality.

58Addressing the identities of parties in s.61 OHSA appeals, the Employer submits that the inspector is routinely made a party (Re OPSEU and Ontario (Ministry of the Solicitor General), Re 2024 CarswellOnt 7395, 2024 CanLII 52265, 360 L.A.C. (4th) 421 at para. 69). While the s.61(2)(4) list of parties to an appeal includes a director rather than an inspector, the Employer says the OHSA provides some overlap between inspectors and directors and gives the OLRB discretion to include an inspector as a party even if they are not a director (OHSA, s.1 “director”, “inspector”, 5, 6, 61(2)(5)).

59The Employer emphasizes that the crucial point here is that the MOL is involved in appeals, whether it is by the designated inspector or designated director. Therefore, if the Union does not exercise its right to appeal and instead files a grievance, then whether it is the inspector or a director the effect is that the MOL, which would normally be part of the appeal process, is excluded from the grievance process and cannot be involved. The Employer submits that this leads to an abuse of process concern.

C. Union’s Argument

1. Arguments Relating to the Elliot Lake Incident

60The Union’s position is that neither issue estoppel, abuse of process, nor collateral attack applies in relation to the Inspector’s decision at Elliot Lake to preclude the grievance.

61Regarding issue estoppel, the Union says that the preconditions are not satisfied. The Union does not dispute that the Inspectors’ decision is final, but it says that the neither the questions nor the parties are the same in the two proceedings. The questions in the two proceedings are similar but not the same: the Inspector determined whether an OHSA violation existed while the grievance would determine whether the OHSA or Collective Agreement were violated. Acknowledging that the Collective Agreement incorporates the OHSA, the Union argues that the Article 9 obligations are not identical to the OHSA obligations; therefore, the questions in the two proceedings are not the same. While the Employer is party to both proceedings, the Union contends that the Union is not really a party to the Inspection, since it is not “in the driver’s seat” in the way it is in a grievance.

62Even if the Board concludes that the preconditions are met, the Union submits that the relevant factors do not support the Board exercising its discretion to apply issue estoppel. The Union argues that it is the second category of unfairness identified in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44, [2001] 2 SCR 460 that applies to this second motion. That is, even where the prior proceedings were conducted fairly and properly it may still be unfair to use the results of that process to preclude the subsequent claim.

63The Union asserts there is a significant difference in the procedures, purposes and stakes leading to unfairness. The Union provided a detailed explanation of the OHSA system, inspections and the role of inspectors, the s.51 mandatory reporting requirement, and the nature and jurisdiction of the OLRB’s de novo hearing on a s.61 OHSA appeal. The Union argued that these are different procedures with different purposes than grievance arbitration.

64Regarding the inspection process, the Union emphasizes the immediate nature of inspections, the inspector’s health and safety training but not necessarily legal training, inspector’s investigatory powers, and ability to lay or recommend charges (OHSA, s. 57). Inspectors can bring the workplace to a stop, and secure the workplace. Inspectors are tasked with ensuring OHSA compliance. The Union cautions against making the Inspection process a proxy for the arbitration process thereby overburdening this administrative procedure.

65The Union emphasizes that in a s.61 appeal the OLRB engages in a hearing de novo. It does not review the inspector’s investigation but “stands in the shoes” of the inspector, and has very broad powers to make any interim or final order it considers appropriate (OHSA, s. 61(3.4)). Section 61 appeals are in the exclusive jurisdiction of the OLRB, while the OLRB has no jurisdiction over the Collective Agreement here. The Union notes that no s.61 appeal was filed in the Elliot Lake incident, so describes that as theoretical in this case, and this means that the Union has not had “a run at another tribunal.”

66Grievance arbitration, in contrast, is not immediate, is not an investigation, is not a hearing de novo and the arbitrator’s jurisdiction includes employment-related legislation such as the OHSA, and exclusive jurisdiction over the Collective Agreement. The Union contests what it understands is the Employer’s suggestion that the s.61 process and arbitration are interchangeable, and therefore the Union should have proceeded with the s.61 appeal to the OLRB.

67The Union contends that the OHSA and arbitration have different purposes. A broad, purposive approach is to be taken to the OHSA. The Employer’s position would require that this be narrowed. The Union emphasizes the policy reasons for the OHSA s.51 mandatory notification, and the private and public interests in preventing workplace accidents injuries, and government’s policy interest in self-disclosure of workplace injury and this differs from a Union’s purpose in pursuing grievance arbitration.

68The Union argues that the Legislature’s intention, as evidenced in the wording of the OHSA was that the health and safety and arbitration schemes operate in parallel. The Union points to confidentiality of Inspectors’ investigations, that Inspectors are not compellable witnesses; and the absence of an election requirement between the OLRB and arbitration as a forum for appeals in support of this (OHSA, ss. 50(2), 63(1), (4)).

69The Union submits that the Employer’s argument is not really about issue estoppel. Instead, the Union says the Employer is asking the Board to read in an election requirement for s.61 appeals. Essentially the Employer is saying that once an inspector comes into the workplace, an election has been made to deal with the MOL and that prevents the union from accessing the collective agreement and grievance process. The Union says that is an incorrect reading of the law and legislation and to accept the Employer’s argument would be manifestly unfair and the kind of mechanical application of issue estoppel the Supreme Court of Canada warns against.

70The Union submits to find collateral attack in this case would misapprehend the nature of a s.61 appeal, emphasizing that appeals are hearings de novo and, therefore, an Inspector would not be defending their decision on an appeal. The Union also argues that the Inspector lacks standing before the OLRB and is not party to an appeal (OHSA, s. 61(2); Good Government Act, 2011, Schedule 7, s.7(1) (11)). Further the OLRB has no jurisdiction to interpret or apply the Collective Agreement. Meanwhile, an arbitrator has no authority to rescind an Inspector’s order, set it aside or amend it.

71The Union undertook a detailed review of the Danyluk and Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 SCR 125 decisions, urging the Board to conclude, as the Court did there, that it would be unjust to apply issue estoppel, abuse of process, or collateral attack in the present case. The Union contends that the decisions in OPSEU GSB, OPSEU Div. Ct., and Toronto Transit Commission are distinguishable or limited to their specific facts and are of no assistance in the present case.

2. Arguments Related to the OLRB Matter

72The Union argues that, applying the general principles of collective agreement and contract interpretation, the OLRB MOA does not support the Employer’s position and does not bar the grievance from proceeding. In particular, the Union says the following elements of the OLRB MOA support this argument. First, although the grievance was filed months prior, the OLRB MOA is silent about the grievance and contains no release. Second, while the whereas clause says the “[p]arties wish to address the issues of weapons being introduced into the secure area of the workplace.” it does not follow that if a health and safety issue involving weapons arises in a different location years later, that no legal recourse is possible. That interpretation would require reading language into the preamble that does exist and would produce an absurd result. Finally, the enforcement provision does not mean that the OLRB remains seized in respect of any dispute regarding any issue involving weapons in Probation and Parole Offices or whether the Employer has complied with the OHSA. This would require language to be read into the OLRB MOA.

73The Union contends that no party could reasonably have believed that the third-party review ordered by the OLRB in the OLRB MOA would mean a weapon would never again enter a Probation and Parole Office. Rather, the Union says, the parties did turn their mind to future incidents, and points to the OLRB MOA provision that nothing in it “precludes the Employer’s, workers’ and Union’s right to enforce their rights under the OHSA….” The Union says that to accept the Employer’s position would mean that all future litigation on this issue is barred by the OLRB MOA. This, it says, would effectively amount to contracting out of the OHSA.

74The OLRB Matter did not involve the Grievor, the Elliot Lake incident, or, the Collective Agreement, which falls outside the OLRB’s jurisdiction. It did not examine the specific conditions at Elliot Lake, including the absence of ARBS and lockers there, which created a distinct safety context. Accepting the Employer’s argument would exclude consideration of these factors, effectively contract out of the OHSA, and would expand the scope of the parties’ original bargain in the OLRB MOA. The Union contends that the Employer’s interpretation would impose a sweeping prohibition on future litigation that is neither stated nor supported by the language of the OLRB MOA.

75The Union refers to the following decisions in support of these arguments: Ontario Power Generation Inc. v Society of United Professionals, 2018 CanLII 90219 (ON LA); Corporation of the City of North Bay v Canadian Union of Public Employees, Local 122-1, 2023 CanLII 83430 (ON LA); Corporation of The City of Thunder Bay v Unifor, Local 229, 2020 CanLII 84055 (ON LA); Ontario Public Service Employees Union (Fitzpatrick) v Ontario (Solicitor General), 2024 CanLII 40068 (ON GSB); Corporation of the City of North Bay v Canadian Union of Public Employees, Local 122-1, 2023 CanLII 83430 (ON LA); and, Sattva Capital Corp. v. Creston Moly Corp.,2014 SCC 53, [2014] 2 SCR 633, as cited in several of the above cases.

76The Union says that neither issue estoppel, abuse of process, nor collateral attack apply. Although the Union does not dispute that the OLRB MOA is final, it says that the other preconditions for issue estoppel are not satisfied here. First, the questions in this grievance are different that those before the OLRB. Questions of whether the Employer met its obligations in relation to the Elliot Lake incident were not, and could not have been, before the OLRB. The OLRB Matters involved s. 61 appeals of orders issued at two different workplaces and the collective agreement violations in this grievance were not before the OLRB as it lacks jurisdiction to consider collective agreements outside the construction industry, which is not applicable in this case. Further, the Union objects to distilling the question before the OLRB into whether the Employer had taken reasonable precautions about the issue of weapons at Probation and Parole Offices. Health and safety cannot be decided once and for all. In addition, the workplaces involved in the OLRB Matter involved the ARBS program which was not in place at Elliot Lake. Therefore, the factual matrix to be examined under the grievance is different, further supporting the Union’s position that a different question was before the OLRB.

77The Union says the final precondition, that the parties be the same, is not satisfied. First, a director from the MOL was a party to the OLRB proceedings as required by OHSA s. 61(2), but the director is not a party to this grievance proceeding. Second, while the Grievor is not party to the grievance, an individual grievor has a significant role as they have a right to attend grievance proceedings, especially under the OPSEU Central Collective Agreement where grievors have carriage. This contrasts with the OLRB Matter in which the Grievor was neither a party nor had standing.

78In any event, the Union says that the Board should not exercise its discretion to apply issue estoppel or abuse of process. Emphasizing the differences between the two proceedings, particularly the different fact scenarios, and the existence and content of the OLRB MOA, the Union submits that it would be a fundamental unfairness to prevent this grievance from proceeding.

79The Union also argues that the grievance is not a collateral attack: the grievance is not asking the Board to either rework, rescind, or enforce the OLRB’s order, nor would the Board have the jurisdiction to do so. The OLRB has not made any findings about this grievance or the Elliot Lake shooting. Therefore, there can be no concern about the potential for inconsistent findings.

80The Union refers to the following additional authorities: Ontario (Ministry of Labour) v. Hamilton (City), 2002 CanLII 16893 (ON CA); Ontario Public Service Employees Union Local 234 v. Ministry Community Safety Correctional Services Vanier Centre for Women, 2019 CanLII 14451 (ON LRB); Ottawa Carleton Detention Centre, [1999] O.O.H.S.A.D. No. 290; International Brotherhood of Electrical Workers, Local 586 v. KE Electrical Services Ltd., 2005 CanLII 35125 (ON LRB); Alamos Gold Inc. Island Gold Mine v. A Director under the Occupational Health and Safety Act, 2019 CanLII 7058 (ON LRB); University Health Network v. Ontario Nurses’ Association, 2015 CanLII 15359 (ON LA); Ontario Public Service Employees Union v. Ontario (Community Safety and Correctional Services), 2010 CanLII 52660 (ON GSB); Ontario Public Service Employees Union (Greenbank et al.) v. Ontario (Ministry of Finance), 2005 CanLII 55198 (ON GSB); Ontario Public Service Employees Union (Aitken et al) v. Ontario (Community Safety and Correctional Services), 2017 CanLII 52706 (ON GSB); Ontario Public Service Employees Union (Martin) v. Ontario (Natural Resources and Forestry), 2019 CanLII 97224 (ON GSB); Ontario Nurses’ Association v. Royal Ottawa Health Care Group - Brockville Mental Health Centre, 2015 CanLII 24413 (ON LRB); Ontario, Filing a workplace health and safety complaint, online; Ontario, Reporting workplace incidents and illnesses, online; Ontario, Occupational health and safety inspections and investigations, online; Norman A. Keith, Canadian Health and Safety Law: A Comprehensive Guide to the Statutes, Policies and Case Law, § 6:1. Statutory Duty to Report Workplace Accidents, § 6:2. Policy Reasons to Report Accidents, and § 6:11. Requirements for Accident Reporting—Ontario—Notice of death or critical injury; OHSA, s. 50(2), 57, 61, 63; Crown Employees Collective Bargaining Act, 1993, SO 1993, c 38, s. 48(3).

D. Union’s Supplementary Written Submission

81The Union submits that Ontario Nurses Association v. Eatonville/Henley Place, 2020 ONSC 2467 at paras. 48-55 is consistent with the Union's position and submissions regarding the distinct nature and purposes of proceedings before labour arbitrators, inspectors, and the OLRB.

V. ANALYSIS AND DECISION

82The Employer has brought two preliminary motions seeking dismissal of the grievance. In its first motion, the Employer submits that the grievance should be dismissed because it raises the same issues as determined by the Inspector in the Elliot Lake incident, and so should be barred due to issue estoppel, abuse of process, or collateral attack. In its second motion the Employer seeks to have this grievance dismissed, either on the basis that the OLRB MOA precludes the grievance, or because of issue estoppel, abuse of process, or collateral attack.

83For the reasons below I grant the Employer’s first motion and dismiss the grievance.

A. Issue Estoppel, Abuse of Process and Collateral Attack

84Relitigation can waste resources, impose extra costs on parties, and discourage reliance on decisions. It also introduces the risk of conflicting decisions and, in cases involving administrative decisions, may frustrate the legislature’s purpose in establishing the administrative framework. The doctrines of issue estoppel, abuse of process, and collateral attack have been developed to address these concerns (Penner v. Niagara (Regional Police Services Board), 2013 SCC 19, [2013] 2 SCR 125, at para. 29).

85The starting point is that finality is the rule and relief from issue estoppel is the exception (Penner, at para. 42) although “[t]he objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case” (Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 67). The Supreme Court of Canada provides guidance for applying these doctrines, with necessary modifications to the administrative context:

…In that context [of decisions of administrative officers and tribunals] the more specific objective is to balance fairness to the parties with the protection of the administrative decision-making process, whose integrity would be undermined by too readily permitting collateral attack or relitigation of issues once decided (Danyluk, at para. 21).

86Intended to balance judicial finality and economy and other considerations of fairness to the parties, a two-step test has been established for issue estoppel (Penner, at para. 29). At the first step, the applicant must establish three preconditions: (1) Has the same question been decided? (2) Was the question final? (3) Were the parties the same? (Re OPSEU and Ontario (Ministry of the Solicitor General), Re 2024 CarswellOnt 7395, 2024 CanLII 52265, 360 L.A.C. (4th) 421, at para. 35 (“OPSEU GSB”) referencing Angle v. Minister of National Revenue,1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248 at p. 254).

87If these preconditions are met, the second step is to determine whether the decision-maker should decline to apply issue estoppel as a matter of discretion (Danyluk, at para. 62). The Court in Danyluk identified an open-ended list of factors that may be relevant in a particular case to determine whether this discretion ought to be exercised, where, the “underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case” (Danyluk, at para. 33). These factors include: the wording of the statute; the purpose of the legislation; availability of an appeal; the safeguards available; the expertise of the administrative decision maker; circumstances giving rise to the prior administrative proceedings; and, the potential injustice. In Danyluk the Court identified the final factor, potential injustice, as the “most important factor.” In addressing this factor, the decision-maker “should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice ….” (Danyluk, at para. 80). The Supreme Court cautions that this list is “neither a checklist nor an invitation to engage in a mechanical analysis” (Penner, at para. 38).

88In Penner, the Supreme Court characterized the discretionary factors as falling into two, overlapping categories. First, where unfairness of the prior proceeding would make applying issue estoppel unfair. Second, where it may be unfair to use the results of the first proceeding even where they were conducted fairly and with due regard to their purposes (at para. 39). This second category of potential unfairness requires a “much more nuanced enquiry” and the Court explains that this type of unfairness “…may occur, for example, where there is a significant difference between the purposes, processes or stakes involved in the two proceedings” (at para. 42). The Court further explained that (at para. 47):

… Where the legislative scheme contemplates multiple proceedings and the purposes of those proceedings are widely divergent, the application of the doctrine in such circumstances might not only upset the parties’ legitimate and reasonable expectations but may also undermine the efficacy and policy goals of the administrative proceedings by either encouraging more formality and protraction or even discouraging access to the administrative proceedings altogether.

However, the Court also cautioned that "if courts routinely declined to apply issue estoppel because procedural protections in the administrative proceedings do not match those available in the courts, issue estoppel would become the exception rather than the rule” (Penner, at para. 42).

89It is this second category of potential unfairness that the Union says is relevant to the second motion in the present matter.

90Issue estoppel, abuse of process and collateral attack are “interrelated”, and more than one doctrine may apply in a particular case, but they are not necessarily interchangeable (Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 SCR 77, at para. 22). Discretion, including consideration of the same factors applicable to issue estoppel, also applies to the doctrines of abuse of process (University Health Network v Ontario Nurses’ Association, 2015 CanLII 15359 (ON LA) at para. 43; Toronto (City), at para. 53) and collateral attack.

91Finally, the rule against collateral attack is described as a rule that “a judicial order pronounced by a court of competent jurisdiction should not be brought into question in subsequent proceedings, except those provided by law for the express purpose of attacking it” (Danyluk, at para. 20).

92The Divisional Court, in its recent decision involving Inspectors’ decisions and grievances arising from the same incidents, in upholding the arbitrator’s finding of collateral attack, stated the following:

Where the legislature has “definitively prescribed” a particular appeal mechanism for challenging an administrative order, a court is “bound to give effect to that legislative choice, absent constitutional infirmity”: R. v. Irwin, 2020 ONCA 776, at para. 31. The OHSA prescribes an appeal mechanism for challenging an inspector’s decision, which includes a 30-day appeal deadline, so that challenged workplace health and safety matters can be dealt with expeditiously and efficiently (OPSEU Div. Ct., at para. 38).

B. Is the Grievance Barred Due to the Inspector’s Elliot Lake Orders?

93I turn now to the first motion: whether the grievance should be dismissed, given the existence of the Inspectors’ orders in the Elliot Lake incident. For the reasons explained below, I find that that issue estoppel applies and, therefore, that the grievance is to be dismissed.

94At the outset I note that the Employer relies primarily on the OPSEU GSB decision, upheld in OPSEU Div. Ct., which it says is “on all fours” with the present case. This decision involved the same parties, although a different workplace, and some different circumstances. The Union says these decisions should not be applied, and are distinguishable on the facts.

95I find Arbitrator McLean’s analysis in the OPSEU GSB decision and that of the Divisional Court in the judicial review decision to be of assistance, given the similarities between that case and the present case: both involve the question of whether an OHSA Inspector’s decision should bar a union’s grievance about the same incident based on abuse of process doctrines. However, I also recognize there are differences between the two cases, primarily that the incidents there did not engage the s.51 mandatory reporting requirement, that in two instances the Inspection process was instigated by unionized workers rather than the Union contacting the MOL, and the nature of the incidents. I consider these differences in my analysis, below.

96The Union also says that the OPSEU GSB decision is “an outlier”, pointing to the following decisions as examples of cases where inspectors’ orders did not bar a grievance: Ontario Public Service Employees Union (Aitken et al) v Ontario (Community Safety and Correctional Services), 2017 CanLII 52706 (ON GSB), Ontario Public Service Employees Union (Martin) v Ontario (Natural Resources and Forestry), 2019 CanLII 97224 (ON GSB), and Ontario Public Service Employees Union (Greenbank et al.) v. Ontario (Ministry of Finance), 2005 CanLII 55198 (ON GSB) (“Greenbank”).

97I do not find these cases to be of assistance to the present case. In neither Aitken nor Martin was issue estoppel, abuse of process, or collateral attack raised as objections to the grievances proceeding. In Greenbank, although the decision records that the employer argued abuse of process, Arbitrator Mikus’ decision does not address that argument and her decision to permit the grievance to proceed was on the basis that the Board and OLRB have concurrent jurisdiction.

1. Step One: Preconditions

98The first step is to determine whether the preconditions for application of issue estoppel are satisfied. Two of the preconditions are in dispute: whether the same question was decided and whether the parties are the same. The parties agree that the Inspector’s decision is final. For the reasons below, I find that the preconditions are met.

a. Was the Same Question Decided?

99Was the question decided by the Inspector the same as that raised in the grievance? The Divisional Court has recently offered guidance for determining this: “the task is to identify whether the ‘source of concern’ has already been decided ‘within the same factual and legal matrix’” (Ontario Public Service Employees Union v. Ontario (Solicitor General), 2025 ONSC 1801, at para. 28 (“OPSEU Div. Ct.”)). There, the Court found the Arbitrator’s conclusion that this precondition was met was not unreasonable. The Arbitrator had analyzed the inspector’s decision and the grievance and particulars in each of the instances and concluded that “[t]he grievances before me involve the same people and circumstances” (OPSEU Div. Ct., at para. 29, citing OPSEU GSB, at para. 61).

100Also of assistance is the decision in Toronto Transit Commission v. A.T.U., Local 113, [2010] O.L.A.A. No. 467, 197 L.A.C. (4th) 265 (“Toronto Transit Commission”). In considering whether a grievance claiming violation of collective agreement health and safety and management rights provisions raised the same questions determined in Inspectors’ decisions, Arbitrator Howe asked whether the collective agreement “imposed material substantive obligations beyond those imposed on the Employer” by the OHSA (at paras. 18, 20). The Arbitrator then examined the health and safety provision and concluded that it did not impose any greater obligations on the Employer than the OHSA provision that the grievance claimed was violated. Similarly, the Arbitrator concluded that all management rights must be exercised consistent with the employer’s OHSA obligations, including those specified in that grievance. Therefore, nothing in the management rights provision cited in the grievance imposes obligations on the Employer beyond those of the OHSA (at paras. 17, 18).

101In the present case the grievance claims violation of Collective Agreement Article 2 (management rights) and Article 9 (health and safety and video display terminals) and of the OHSA, without specifying a particular provision of that Act. Do these provisions impose substantive material obligations on the Employer beyond those imposed by the OHSA? I find that they do not.

102The Union argues that the Article 9 obligations are not identical to the Employer’s OHSA obligations, and the Inspector did not, and had no jurisdiction to, consider the Collective Agreement. The Employer maintains Article 9 does no more than incorporate OHSA obligations into the Collective Agreement by reference.

103Article 9 of the Collective Agreement provides:

9.1 The Employer shall continue to make reasonable provisions for the safety and health of its employees during the hours of their employment. It is agreed that both the Employer and the Union shall co-operate to the fullest extent possible in the prevention of accidents and in the reasonable promotion of safety and health of all employees.

9.2 The Employer shall provide safety equipment and protective clothing where it requires that such shall be worn by its employees.

The balance of this provision addresses Employer provision and maintenance of safety footwear and apparel and obligations relating to video display terminal operators, none of which is relevant here.

104I find nothing in Article 9 imposes material substantive obligations on the Employer beyond those imposed by the OHSA.

105Turning to the Article 2, management rights, provision, this states:

2.1 For the purpose of this Collective Agreement, the right and authority to manage the business and direct the workforce, including the right to hire and lay-off, appoint, assign and direct employees; evaluate and classify positions; discipline, dismiss or suspend employees for just cause; determine organization, staffing levels, work methods, the location of the workplace, the kinds and locations of equipment, the merit system, training and development and appraisal; and make reasonable rules and regulations; shall be vested exclusively in the Employer. It is agreed that these rights are subject only to the provisions of this Collective Agreement.

106The Employer says that this provision simply incorporates by reference the OHSA obligations, and that the Union’s particulars contain no suggestion that, in the events of April 20, 2020, management did or failed to do anything in particular. I note that the Union did not argue that the claim of violation of the management rights provision was significant to this precondition. In any event, I adopt the reasoning of Arbitrator Howe on this point, that management rights must be exercised consistent with OHSA obligations. Therefore, I find that Article 2 does not impose material substantive obligations on the Employer greater than those imposed by the OHSA.

107Having concluded that the relevant Collective Agreement obligations do not materially exceed the Employer’s OHSA obligations, and therefore that the grievance and Inspector’s decision share the same legal matrix, I turn to consider whether they have the same “factual matrix”: involving the same people and circumstances. I find that they do.

108The Inspector’s three FVRs and associated orders explicitly indicate it is an investigation of the Elliot Lake incident. The order for the Employer to complete a workplace violence re-assessment is made “to ensure the Workplace Violence Policy and programs continue to protect the health and safety of the workers,” with the narrative part of the FVR addressing Employer implementation of a Blackline system, and specifically directing the Employer to consider reviewing items relating to protection from concealed weapons in this reassessment.

109The grievance form says that the grievance is “specifically but not exclusively in relation to the incident of April 20, 2020”. The particulars focus on the April 20, 2020 incident, with the possible exception of paragraph 48, which asserts that the Employer has not implemented adequate measures or precautions to reduce reoccurrence of a shooting or weapon entering a secure area at Elliot Lake:

While the Employer provided [probation and parole officers] with Blackline devices following the shooting, it implemented inadequate measures or precautions to reduce the risk of a shooting reoccurring and/or a gun or other weapon entering the secure area of the Elliot Lake probation and parole office. For instance, and without limiting the generality of the foregoing, the Employer does not have any measures to detect guns and/or firearms and prevent them from entering the Elliot Lake office, such as a metal detector. The glass between a client and a [probation and parole officer] in the SIR (which was the location of the April 2020 shooting) also does not have ballistic proof glass. Similarly, the glass at the front counter of the office before clients enter any secure areas is also not ballistic proof. This means that a bullet can smash the glass or pass through the glass, seriously injuring or killing any workers or persons on the other side of the glass.

This addresses the April 20, 2020 incident and raises no new issues. Therefore, it is not sufficient to constitute a separate legal issue or new factual matrix.

110As a result, I find that the source of concern has been decided within the same factual and legal matrix, involving the same people and circumstances: the Inspector’s decision dealt with the issues raised by the grievance. I also find that the Inspector’s decision and grievance deal with the same factual matrix: the same people and circumstances at the Elliot Lake office.

111Consequently, the precondition that the same question has been answered in the previous proceeding is satisfied.

b. Were the Parties the Same?

112The final precondition is that the two proceedings must involve the same parties. I find that they do. While agreeing that the Employer is party to both proceedings, the Union contends that the Union is not really a party to the Inspection, because, although it has a role in that process, the Union is not “in the driver’s seat” in the way it is in a grievance. The Employer says the Union and Employer are both parties to the grievance and the Inspection process, relying on the OPSEU GSB and Div. Ct. decisions. There, Arbitrator McLean found that it was “clear” that the parties to the grievance and to the Inspectors’ decisions were the same: the Union and employer (at para. 60). The Union did not contest this on judicial review (OPSEU Div. Ct., at para. 22).

113I also note that, even if the Union is not “in the driver’s seat” in the health and safety Inspection process, it does participate in the process and has the right to appeal the Inspector’s orders (OHSA, s. 61).

114In the absence of convincing reasons to depart from the OPSEU GSB decision on this point I decline to do so and conclude that the Union and Employer are parties to both the grievance and to the Inspection proceeding.

115Therefore, the preconditions for application of issue estoppel are satisfied.

2. Step Two: Discretionary Factors

116Having found the first step of the test satisfied, I now move to the second step: considering whether discretion not to apply issue estoppel ought to be exercised. This involves considering the non-exhaustive list of factors set out in Danyluk and Penner.

a. The Purposes, Processes, and Stakes of the Proceedings

117Turning to the second category of potential unfairness, which the Union says applies here, I first consider whether there is a “significant difference between the purposes, processes or stakes involved in the two proceedings” (Penner, at para. 42), and then consider whether this gives rise to unfairness. Here I look to the discretionary factors that the Supreme Court has identified as especially relevant to this second category: the wording of the statute and the purpose of the legislation (Penner, at para. 43).

i. The Wording of the Statute

118Considering the first factor, the wording of the statute, the Union says that the Legislature did not intend to foreclose parallel proceedings, that similar indications of legislative intent exist here as were found in Danyluk and Penner. As examples of this legislative intention the Union points to the OHSA provisions for confidentiality of Inspectors’ investigations material, that Inspectors are not compellable witnesses; and, the lack of an election requirement between the OLRB and arbitration as a forum for appeals, compared to the existence of an election requirement for reprisal claims (OHSA, ss. 50(2), 63(1), (4)). I also note that in the OPSEU GSB decision Arbitrator McLean considered the statutory wording of the OHSA and found that the Inspection and arbitration “schemes operate in parallel” (at para. 70).

119I agree that the legislation indicates that the OHSA and arbitration schemes operate in parallel.

ii. The Purpose of the Legislation

120Next, considering the whether the purposes of the two proceedings diverge significantly. I find they do not.

121The Union argues that the OHSA and arbitration serve different purposes. The Union says a broad, purposive approach is required to the OHSA that the Employer’s position would improperly narrow. The Employer submits that these principles are of no assistance here as the Board is not being asked to apply the OHSA. Rather, it is being asked to apply the doctrines of issue estoppel, collateral attack, and abuse of process. In any event, the Employer says, application of those principles would not change the application of those doctrines.

122The Union emphasizes the policy reasons for the s. 51 OHSA mandatory reporting requirements, including private and public interests in preventing workplace accidents and injuries and the government’s interest in self-disclosure to inform prevention and policy, and says these aims differ from a Union’s purpose in pursuing grievance arbitration to enforce collective agreement rights (Norman A. Keith, Canadian Health and Safety Law, at §§ 6:1, 6:2, 6:11). The Union further submits that the purpose of the ESA identified in Danyluk – “to provide a relatively quick and cheap means of resolving employment disputes” (at para. 73) - reflects the purpose of the OHSA in the present case. The Union submits that it is insufficient to simply find that both the Inspector’s decisions and grievance involve health and safety; a more nuanced inquiry into their distinct aims is required, and that this distinction shapes the parties’ reasonable expectations about the scope and effect of the proceedings and their impact on broader rights.

123The purpose of the OHSA, based on a detailed review of the legislation, its everyday operation, and court statements about the legislation, was summarized by the OLRB as follows: “[i]t has the purpose of improving and protecting the health and safety of workers in the workplace in a multi-strategic fashion”, (Ontario Public Service Employees Union Local 234 v Ministry Community Safety Correctional Services Vanier Centre For Women, 2019 CanLII 14451 (ON LRB), at para. 54). Similarly, in the OPSEU GSB decision, Arbitrator McLean concluded that the purpose of the OHSA is “…among other things, to provide and mandate workplace systems to ensure the health and safety of workers” (at para. 70). The Arbitrator then compared it to the purpose of arbitration, concluding that: “[i]t is identical (and much more broad) than the purpose of the health and safety provisions in the collective agreement. The OHSA is designed to have workplace safety concerns addressed expeditiously….” (at para. 70).

124The Supreme Court in Penner highlighted a concern: that applying issue estoppel may undermine the administrative regime by encouraging unnecessary formality and delay or by discouraging complainants from accessing the administrative process altogether to avoid prejudice in subsequent proceedings. This could undermine the efficiency and informality of administrative regimes, defeating the purpose of creating such tribunals (Penner, at paras. 46, 47, 62, 63). In that case, the Court noted that adding undue weight to the results of the police discipline process “risks turning the administrative process into a proxy for Mr. Penner’s civil action” (at para. 62).

125The Union argues the same risks exist here and that it raises the question of whether the Inspector process will become a proxy for the arbitration process thereby undermining the expedient, quick, element of the Inspector regime created by the OHSA. The Union contends there is a real unfairness and concern about what happens to a worker contacting an Inspector, and whether the worker has counsel present in an emergency situation to make full legal submissions, to ensure that issue estoppel is not applied because they failed to make a full case before the Inspector. The Union says that clearly this is not what the Legislature intended, nor how the process was crafted. The Union argues that the OLRB has recognized that the Inspection process is not overly legalistic, in Ontario Nurses’ Association v Royal Ottawa Health Care Group - Brockville Mental Health Centre, 2015 CanLII 24413 (ON LRB) (“Brockville”), where it echoed the Supreme Court’s cautions about overburdening a quick process.

126The Brockville decision involved an appeal of an Inspector’s order to the OLRB arising from mandatory reporting of a nurse’s critical workplace injury. The union sought additional remedies beyond those considered by the Inspector. The MOL argued these must have been brought to the Inspector’s attention in order for the OLRB to have jurisdiction to consider them on appeal. The OLRB rejected the MOL’s position, noting the burden this would place on workplace parties, particularly unrepresented workers, to raise with the Inspector all remedies they might wish to seek. The OLRB opined that “[s]urely this is not what the legislators had in mind when the right to appeal an inspector’s order was granted” (at para. 46).

127Concern about overburdening the Inspection process is a valid concern. However, the Brockville case is of limited application as it addresses a very different issue than the present case, speaking to the breadth of the OLRB’s jurisdiction under s.61 of the OLRA, discussed further below, rather than to questions issue estoppel and abuse of process.

128The Union also says that application of issue estoppel would undermine the Inspection process by discouraging employers somewhat from participating in the Inspection process, although recognizing that s.51 OHSA reporting is mandatory for employers therefore such an employer would not be complying with its obligations. The Union also says it may discourage workers from participating in the Inspection process, such as participating in interviews with the Inspector, in order to “keep their powder dry to go to arbitration.”

129Notably, the Divisional Court, in judicially reviewing the OPSEU GSB decision, dismissed as “speculative” the Union’s argument that the Arbitrator’s decision (that is, application of issue estoppel and collateral attack) might discourage unions and members from accessing OHSA protections (OPSEU Div. Ct., at paras. 33, 35).

130I am not prepared to conclude that employers will likely disregard their s.51 mandatory reporting obligations, nor that unions or employees would choose to hamper an Inspector’s investigation, thereby potentially risking the health and safety of other workers. Further, it is not clear why not participating fully or possibly at all in the Inspector’s investigation would affect a subsequent grievance or arbitration process or access to that process due to issue estoppel or a similar doctrine. While the Divisional Court, above, addressed the slightly different argument that that unions and employees may be less likely to seek OHFA protections, rather than being less likely to participate in investigations, I reach the same conclusion as the Divisional Court: that it is a speculative effect.

131The timing of when a party commences the second proceeding can also be relevant to the other party’s entitlement to finality and to shaping parties’ expectations. In Danyluk and Penner, the applicant launched the second proceeding before the decision being issued in the first. The Court found this weighed against applying issue estoppel because the respondent was aware early on that it was facing parallel proceedings and, therefore, there was less unfairness to the respondent to allow the second matter to proceed (Danyluk, at para. 70; Penner, at para. 56).

132In the present case the Union points out that it filed the grievance before the Inspector’s final FVR and decision, dated June 25, 2020. The Employer’s second workplace violence risk reassessment was dated the same as the grievance: May 28, 2020. Therefore, the Employer was aware at an early stage that the Union was pursuing a grievance. I agree that the fact that the grievance was filed prior to the Inspectors’ final decision would lessen the unfairness to the Employer if issue estoppel is not applied.

133While the OHSA may provide procedures providing for quick responses to workplace injuries and deaths I do not accept, as the Union suggests, that a “quick and cheap” approach is the purpose of the legislation. I do accept that protection and improvement of worker health and safety is the purpose of the OHSA, and this reflects an array of public and private interests in health and safety, and that that purpose is shared by the grievance arbitration process through incorporation of the OHSA into collective agreements as an employment-related statute. In this particular case, given my finding that the impugned Collective Agreement provisions do not impose materially different obligations on the employer than the OHSA, the purpose of the arbitration proceeding is also to enforce that legislation.

iii. The Processes

134I now consider whether there exists a significant difference between the processes involved in the two proceedings: the OHSA inspection and the grievance arbitration.

135In cases such as the Elliot Lake incident, involving a workplace death, the Inspector attends the workplace as a result of the s.51 OHSA mandatory notice requirements. Emphasizing the speed of the Inspector’s response, the Union notes that the Inspector is responsible to secure the scene of the incident, and deals with a potentially still active situation (Norman A. Keith, Canadian Health and Safety Law: A Comprehensive Guide to the Statutes, Policies and Case Law, § 6:11. Requirements for Accident Reporting—Ontario—Notice of death or critical injury). The inspection does not involve sworn testimony or legal submissions. The OHSA gives Inspectors broad powers in the inspection process, including broad authority in matters to assist their investigation and have authority issue orders including ordering a stop to work and can lay or recommend charges (Ontario Public Service Employees Union Local 234 v Ministry Community Safety Correctional Services Vanier Centre For Women, 2019 CanLII 14451 (ON LRB) at paras. 37 and 38; OHSA, s. 57).

136The Union contrasts this with arbitration, pointing out an arbitrator does not immediately respond to a situation, and the arbitration process is more akin to a court procedure, including sworn witnesses, cross examination, legal argument, legal counsel, and enforcement of the collective agreement as well as the OHSA. An arbitrator does not undertake an investigation or have an Inspector’s power to, for instance, recommend charges.

137The Superior Court has found, in one case, that the Inspection process was not an alternative to arbitration (Ontario Nurses Association v. Eatonville/Henley Place, 2020 ONSC 2467 (“Eatonville”)). However, that decision does not establish a general principle and is distinguishable from the present situation. There, the applicants successfully sought an interlocutory order for use of COVID-19 protections for nurses in long-term care facilities, arguing that the matter required more immediate attention than would be possible through arbitration. The respondents submitted that the OHSA inspection regime was the appropriate course, not an injunction. Rejecting this submission, the Court stated that:

… While that may be the case, an inspection regime is not an alternative to adjudication of a dispute over compliance with a collective agreement; indeed, counsel for the Applicants advises that the OHSA inspections are no longer being done by visit to the facility and discussion with all concerned parties. According to Applicants' counsel, they are instead being done by telephone call without any attempt made at due process (Eatonville, at para. 53).

138The Court appears to identify two bases for its decision. First, that the dispute involves collective agreement compliance. In that case, the applicants claimed violations of the collective agreements, certain public health directives, the OHSA, and of the applicants' section 7 Canadian Charter of Rights and Freedoms rights (Eatonville, at para. 5). In contrast, as I have concluded above, the present matter is about application of OHSA, not about additional collective agreement rights. Second, the Court accepted what it describes as the applicant’s assertions that “inspections are no longer being done by visit to the facility and discussion with all concerned parties” but by telephone “without any attempt made at due process.” Here, the inspection leading to the first FVR, at least, was conducted by telephone. However, the Union does not claim here that the inspection was inadequate, that there was a breach of natural justice, or that there was not “any attempt made at due process.” Therefore, I conclude that this finding in Eatonville is not applicable in the present case.

139Turning to the OPSEU GSB decision, in considering whether a significant difference existed between the purposes, processes, or stakes involved in grievances and OHSA inspections, Arbitrator McLean concluded that the differences did not meet this standard and that they were “essentially identical” (at paras. 66-68). The Divisional Court upheld this decision, stating:

… the Arbitrator determined that “[t]he purposes and the stakes of the two proceedings are essentially identical; to ensure worker health and safety” and that “[i]f they had appealed the Inspectors’ decisions to the Board, they would have likely ended up with a hearing process very similar to that as before the GSB”: GSB Decision, at para. 66. On the other hand, “by grieving and then ultimately referring the matter to arbitration…the Union likely ended up with a much less quick process”: GSB Decision, at para. 67. The Arbitrator concluded:

In these circumstances there is little unfairness to the Union and its members to, having chosen the Inspector route to deal with their health and safety concerns, require them to follow that process through rather than to choose a different process: the grievance and arbitration procedure: GSB Decision, at para. 68.

The Arbitrator analyzed the Inspector’s decision and the subsequent grievance for each matter and concluded that “[t]he grievances before me involve the same people and circumstances” and “the purposes and the stakes of the two proceedings are essentially identical; to ensure worker health and safety” GSB Decision, at paras. 61, 66 (OPSEU Div. Ct., at paras. 19, 29).

140Finally, although it is comparison of the Inspector’s process and arbitration that is relevant to this part of the enquiry, the Union also argues that the OLRB appeal process and arbitration differ significantly and are not substitutes. The Union did expressly recognize that there had been no s.61 appeal to the OLRB in this case and therefore described this as of “theoretical” importance.

141Any aggrieved party, including an employer, worker, or trade union, among others, can appeal an Inspector’s order to the OLRB within 30 days (OHSA, ss. 61). A s.61 appeal of an Inspector’s decision is not an appeal in the usual sense; instead the OLRB conducts a hearing de novo and has broad power to substitute its findings for that of the Inspector, to affirm or rescind the order, or make a new order, and its remedial authority is not limited to the remedies or orders considered by the Inspector (International Brotherhood of Electrical Workers, Local 586 v. KE Electrical Services Ltd., 2005 CanLII 35125 (ON LRB) at para. 18; Alamos Gold Inc. Island Gold Mine v. A Director under the Occupational Health and Safety Act, 2019 CanLII 7058 (ON LRB) at para. 30; Ontario Public Service Employees Union Local 234 v. Ministry Community Safety Correctional Services Vanier Centre for Women, 2019 CanLII 14451 (ON LRB) at para. 39; Ontario Nurses’ Association v Royal Ottawa Health Care Group - Brockville Mental Health Centre, 2015 CanLII 24413 (ON LRB), at paras. 31-33).

142The Union points to the Eatonville decision, also discussed above, in which the Court found that the s.61 appeal process did not substitute for arbitration in that case:

…[A]s counsel for the Attorney General points out, it is not the mandate of the OLRB in this capacity to make any ruling or policy decision about whether N95s should be available going forward. Applicants' counsel submits, correctly in my view, that the OLRB's limited authority on such an appeal means that it is not an alternative forum to the full adjudication of the issues that will be available with a labour arbitration under the collective agreement (at para. 54).

This decision is distinguishable from the present situation; therefore, this statement is not appliable to the case before me. In the present case only the OHSA is in issue, given my finding that the relevant Collective Agreement provisions do not provide materially different rights than the OHSA. In contrast, in Eatonville, the applicant union claimed that lack of personal protective equipment violated the collective agreement, specific public health directives, and workers’ Charter rights, in addition to violation of the OHSA (at para. 5). Therefore, the limits of the OLRB’s authority to address issues beyond the OHSA are not relevant in the present case.

143I conclude that in the present case there is not a significant difference in the purpose, process, or stakes of the two procedures such that application of issue estoppel would create an unfairness to the Union. I recognize that the Inspection process in this case was triggered by the s.51 mandatory reporting provision of the OHSA and I address this in considering the final discretionary factor, potential injustice.

144I turn now to the remaining discretionary factors.

c. Availability of an Appeal

145It is clear that an appeal was available to the Union, among others, as of right in the present case. Section 61(1) of the OHSA permits “[a]ny employer, constructor, licensee, owner, worker or trade union which considers himself, herself or itself aggrieved by any order made by an inspector under this Act or the regulations” to appeal to the OLRB within 30 days. No appeal was brought.

146Notably, in Danyluk, where no right of appeal existed for the employee (the employee could seek review but could be refused by the ESA director), the Court found that the fact that the employee did not take advantage of this opportunity “must be counted against her” in the weighing of discretionary factors (at para. 74).

d. The Safeguards Available to the Parties in the Administrative Procedure

147The Supreme Court in Danyluk described the ESA administrative process as “a rough-and-ready procedure that is wholly inappropriate, one might think, to the definitive resolution of a contractual claim of some legal and factual complexity” (at para. 28). Upon considering the procedural safeguards discretionary factor, the Court said that “…quick and expeditious procedures suitable to accomplish the objectives of the ESA scheme may simply be inadequate to deal with complex issues of fact or law” and that in that case “the breach of natural justice is a key factor in the appellant’s favour” (Danyluk, at para. 75).

148In the OPSEU GSB decision, in considering the safeguards factor, Arbitrator McLean referenced the above passages in Danyluk, but distinguished the situation there on the basis that:

[T]there is no suggestion that the natural justice rights of the Union or employees were breached. There is also no suggestion that the expeditious procedures used by the Inspectors were inadequate in the circumstances” (at para. 70).

149The same applies in the present case.

e. Expertise of the Administrative Decision Maker

150The Employer maintains that there is no real concern about lack of expertise of the Inspector. The Union acknowledges that Inspectors have extensive health and safety training, but argues that they are not necessarily legally trained and not capable of addressing a collective agreement.

151While the circumstances giving rise to the Inspector’s involvement differs between the OPSEU GSB case and the present, in both cases the Inspector assessed whether workers’ health and safety was at risk in the circumstances. In OPSEU GSB Arbitrator McLean concluded with respect to this factor that “[t]he issues before them did not involve complex legal issues. Instead, they mostly involved an assessment of whether workers’ health and safety was at risk in the circumstances” (para. 70). This contrasts with the situation in Danyluk, where the ESA officer was faced with an issue outside of her expertise. The Court described the issue before the non-legally trained ESA officer as a complex question of contract law and found the “rough-and-ready approach suitable to getting things done in the vast majority of ESA claims is not the expertise required here” (at para. 77). This is not the case here.

152Here, there is no suggestion that situation the Inspector was dealing with was more complex than what Inspectors are expected to investigate or otherwise outside the Inspector’s expertise. This is not to understate the seriousness or importance of this incident, but considers it in the context that such inquiries are at the core of OHSA and of Inspectors’ responsibilities and role in protecting workplace health and safety. Nor, given my earlier finding that the Collective Agreement provisions the grievance claims to be violated do not provide materially more than the OHSA, is any lack of capacity of the Inspector to deal with the Collective Agreement relevant here.

f. Circumstances Giving Rise to the Prior Administrative Proceedings

153Arbitrator McLean, in the OPSEU GSB decision, expressed some concerns about the circumstances of the Inspectors’ decision-making, which he described as “not ideal” (at para. 72). There, he noted that the investigations, requiring quick decisions, occurred early in the COVID-19 pandemic when knowledge of the virus was limited, involved corrections officers working in a congregate setting where the virus could be expected to spread easily. Consequently, the Inspectors conducted telephone investigations (at para. 71). However, ultimately Arbitrator McLean concluded that: “the circumstances that existed at the time should diminish the deference given to these decisions by these Inspectors. Those circumstances do not justify a collateral attack on them” (at para. 72).

154Here, although at least the first FVR was based on a telephone investigation, no similar concerns have been raised about the particular circumstances under which the Inspector was making decisions.

g. The Potential Injustice

155The final discretionary factor is that of potential injustice. The Supreme Court of Canada has identified it as the most important factor, directing the decision-maker to “stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice” (Danyluk, at para. 80).

156First, I recognize that, as the Union notes, there is no concern about overlap of evidence or expending additional resources at arbitration since no appeal was heard.

157Next, an important consideration is that the OHSA Inspector’s investigation and decision here arose from mandatory reporting of the workplace death to an Inspector under s.51 of the OHSA. Section s.51 required the Employer to notify the MOL of the incident and, as a result, the Inspector attended the workplace, undertook an investigation, and issued decisions. Therefore, the Union here had not chosen to engage the health and safety system. Rather, it was a necessary consequence of the health and safety system established by the Legislature.

158The Employer argues that mandatory reporting is not relevant and urges the Board to apply the OPSEU GSB decision. That decision did not involve mandatory reporting, although some of the Inspections there were initiated by employees, not the Union. However, Arbitrator McLean does not appear to have explicitly addressed that in his decision. The Union submits that to apply issue estoppel in circumstances of s.51 mandatory reporting would be unjust, that it would effectively read in and election requirement where one does not exist, and where the Legislature did not intend to impose one, unlike in other areas of the OHSA.

159I agree with the Union that the legislation does not contain an election requiring a union to select either the health and safety or grievance arbitration process, nor should one be read into the OHSA. That said, the OHSA health and safety system includes the s.51 mandatory reporting, and this element of the system was an explicit choice of the Legislature.

160The Union also raises the concern that to apply issue estoppel in this case would effectively mean that a grievance can never proceed where s.51 mandatory reporting is engaged and, therefore, in a matter involving a workplace death or critical injury. I disagree that that would be the effect. Nor, more generally, is it the case that applying issue estoppel in this case would mean that a union can never grieve once an Inspector is called into the workplace.

161In a case different than the present one, it may well be possible for a union to grieve the same incident that has been the subject of an Inspector’s decision, including where that inspection is initiated by mandatory reporting. For instance, where the grievance claims are different or broader than the issues determined by the Inspector – enforcement of the OHSA – then the grievance may well be able to proceed. In those circumstances, the precondition for issue estoppel that the two proceedings address the same question would not likely be satisfied. Or, in a case where there is unfairness in the Inspection or its circumstances, it may be appropriate for discretion to be exercised not to apply issue estoppel. However, those are not the situations we have here.

162Further, to conclude that because the Inspector’s order and decision in this case was initiated through mandatory reporting it is sufficient to conclude that issue estoppel should not apply, would require the kind of mechanical application of discretion in application of issue estoppel that the Supreme Court cautions against.

163The Union also argues that a potential injustice exists here because, should the grievance be dismissed, there may not be another opportunity for a full legal hearing into this matter. This must be considered in light of the general expectation that challenges be made through appeal mechanisms intended by the Legislature for this purpose (Danyluk, at para. 74). The available appeal mechanism would have provided a full legal hearing similar to an arbitration. Here, the s.61 appeal mechanism that the Legislature provided for challenging Inspectors’ decisions was available to the Union, among others, but it chose not to appeal.

164Finally, I do not overlook the seriousness of the incident giving rise to the grievance: a firearms-related death of a client in the presence of the Grievor in her workplace. Such events are at the core of workplace health and safety concerns. Therefore, it is important to consider whether the health and safety concerns arising from this incident would not be addressed in any way should issue estoppel apply and, if so, whether this is potentially unjust.

165While not determining the Employer’s other motion relating to the OLRB Matter at this point, what is apparent is that the Employer claims that those proceedings and the OLRB MOA are of general application to Probation and Parole Offices, including the Elliot Lake Office. There the issues before the OLRB on agreement include broad questions about what measures are necessary to satisfy s.25(2)(h) of the OHSA, specifically including whether universal weapons screening methods, including metal detectors, are required. The OLRB remains seized in that matter and, as the parties have indicated in their submissions here, the OLRB is currently addressing the Union’s case seeking enforcement of the OLRB MOA.

166Therefore, the broader circumstances of the present matter include considering the existence of the OLRB Matter and OLRB MOA, where the Union and Employer are also parties. It is relevant to concerns about potential injustice that the broader issue of adequate controls to prevent weapons entering Probation and Parole Offices is being addressed, albeit in a different forum.

167Overall, having concluded that the preconditions for issue estoppel are satisfied, having considered the factors relevant to whether discretion should be exercised to not apply issue estoppel, and having balanced the need for finality against any potential unfairness to the Union or Grievor, I conclude that it is appropriate in this case to apply issue estoppel and that doing so is not at the cost of real injustice in this particular case.

168Therefore, I conclude that the Inspector’s decisions and orders in the Elliot Lake incident preclude the grievance on the basis of issue estoppel.

VI. CONCLUSION

169I appreciate the careful attention the parties directed to the question of whether the Union’s pursuit of a grievance constitutes a collateral attack on the Inspectors’ decision, and on the second preliminary motion. However, given my conclusion on the question of issue estoppel in first motion, it is not necessary to address those issues, and I decline do so.

170For the foregoing reasons, the grievance is hereby dismissed.