Ontario Public Service Employees Union (Smieja) v. The Crown in Right of Ontario (Ministry of Children, Community and Social Services), 2025 CanLII 52845

GSB# 2020-2858; 2021-3646

UNION# 2021-0601-0001; 2022-0601-0002

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Smieja)

Union

• and -

The Crown in Right of Ontario (Ministry of Children, Community and Social Services)

Employer

BEFORE

Christopher J. Albertyn

Arbitrator

FOR THE UNION

Rebecca Jones Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Ferina Murji Treasury Board Secretariat Legal Services Branch Senior Counsel

SUBMISSIONS

December 5, 2024

Decision

The Issue

1This award deals with preliminary objections raised by the Employer to two of the Grievor’s recent grievances, those of February 19, 2021 and February 27, 2022.

2Before describing the grievances, a brief description of the history between these parties is necessary.

The History

3The Grievor was hired by the Ministry of Children, Community and Social Services as a Youth Services Officer (YSO) on December 8, 2008.

4On March 26, 2013, the Grievor was injured at work. From then he has suffered from psychological trauma. He made a claim to the Workplace Safety and Insurance Board (WSIB), which was accepted. He received benefits for a short period and then he returned to work. Thereafter, on September 16, 2013, the Grievor went off work on short-term sick leave (STSP) paid by Manulife.

5In February 2014 the Grievor successfully applied for long-term income protection (LTIP) benefits paid by Manulife. He received these benefits from February 6, 2015 until September 26, 2016, when he returned to work.

6Three months later the Grievor stopped attending work, on December 29, 2016. In February 2017, the Grievor made a recurrence claim to the WSIB, which was accepted. He has not returned to work since but has been continuously on WSIB loss of earnings income and benefits, having been declared to be permanently disabled from working in any occupation.

7When the WSIB accepted the Grievor’s claim, he was treated as having been on loss of earnings benefits from the date of his original injury, March 26, 2013. The retroactive payment to that date covered periods when he had been paid STSP and LTIP sickness absence income by Manulife and wages by the Employer. There then had to be a reconciliation between what the Grievor had been paid by Manulife and by the Employer, and what he received retroactively from the WSIB.

8The Grievor filed nine grievances during 2013 and 2014, claiming that the Employer was harassing him by not paying him appropriately. All of those grievances were resolved in a Memorandum of Settlement concluded on August 20, 2015. The Memorandum of Settlement resolved “any and all employment related matters up to the date of settlement”.

9Despite the 2015 Memorandum of Settlement, and despite the Grievor being off work in receipt of LTIP or WSIB payments for most of the period following that settlement, the Grievor filed another seven grievances (GSB File Nos. 2015-3235, 2015-3236, 2016-2836, 2017-1094, 2017-1918, 2017-1919 and 2017-3587). These grievances were in similar vein, claiming the Employer was harassing him by not paying him appropriately.

10The Employer claimed these grievances were subsumed within the 2015 Memorandum of Settlement. A decision was issued on April 4, 2018 dealing with this claim: Ontario Public Service Employees Union (Smieja) v Ontario (Children and Youth Services), 2018 CanLII 45301 (ON GSB) (Albertyn). Two issues remained for determination: whether the Grievor received 65 days’ pay for the waiting period until his WSIB payment was received; and whether the Grievor received double payment from the WSIB and the Employer for the same period.

11The Union objected to the Employer’s counterclaim that the Grievor received double payment, arguing that the GSB did not have jurisdiction to determine such a counterclaim. Without conceding that the GSB did not have jurisdiction to consider such a counterclaim, the Employer decided not to pursue it further. A decision was issued on the Grievor’s waiting period claim on January 6, 2021: Ontario Public Service Employees Union (Smieja) v Ontario (Children, Community and Social Services), 2021 CanLII 7236 (ON GSB) (Albertyn). That decision awarded the sum of $4,230.45 to the Grievor, being the amount not paid to the Grievor during the waiting period, plus interest.

12The Grievor sought leave and was granted an opportunity to seek a larger monetary payment. A decision was issued on July 4, 2022 denying that claim and any further liability by the Employer to the Grievor for the period covered: Ontario Public Service Employees Union (Smieja) v Ontario (Children, Community and Social Services), 2022 CanLII 70869 (ON GSB) (Albertyn). The final paragraph reads:

[5] In the circumstances, nothing more remains in this matter. Payments have been made to the Grievor by the Employer in accordance with the decision of January 6, 2021.

The Two Recent Grievances

13The grievance of February 19, 2021 alleges that the Employer continues to unlawfully harass the Grievor and deprive him of his wages, including “misrepresenting data” and “providing inaccurate data”. The Grievor further claims that the Employer is attempting to defraud him of his wages and that this conduct has manifested itself in inaccurate pay slips issued during 2020 and 2021, and by improper deductions in the same period. The desired settlement is full redress, which includes a conclusion that the relationship is beyond repair, and that the relationship ought to be severed with damages to the Grievor.

14To be clear, the Grievor has not received actual wages since he went off on sick leave and WSIB leave, besides for the brief periods when he returned to work. He has been compensated by the benefits insurer, Manulife, and by the WSIB. Manulife paid sickness absence benefits to the Grievor (STSP and LTIP) during the period from September 16, 2013 until September 26, 2016. He returned to work from September 26 until December 29, 2016, when he received salary from the Employer. After that, until now, the Grievor has been paid WSIB loss of earning income and benefits, and he has not received a salary from the Employer.

15Despite these facts, in the two grievances, the Grievor continues to claim the payment of lost earnings from the Employer for the period dating back to 2013.

16The particulars given by the Grievor in the February 19, 2021 grievance claim that he has still not received a proper accounting of his wages from 2013. The Grievor described this as a “7-year-old battle”.

17The grievance of February 27, 2022 is in similar vein. Particulars were provided to explain the foundation for this grievance. In the particulars, the Grievor claims that the Employer is refusing to provide him with adequate information to enable him to reconcile the tax consequences of a WSIB retroactive payment. The Grievor also alleges that the Employer fraudulently urged Manulife Financial to undertake proceedings against him in Small Claims Court in 2019 to recover overpayments of benefits income. Like the first grievance, the proposed remedy sought in the grievance is full redress that includes a severance payment. The specific additional remedies sought in the particulars are the following:

• the Employer be directed the provide amended T4s from 2014 to 2017;
• the Employer direct Manulife to issue amended T4s for 2015 and 2016;
• an order for damages for the Employer’s breach of the Human Rights Code;
• an order for legal costs incurred by the Grievor in the proceedings initiated in the Small Claims Court by Manulife.

18Particulars of the grievances were provided to the Employer on April 12, 2024. In the particulars, the Grievor claims that he ought to have been given amended T4s for 2015 and 2016 to reflect the actual amounts he received from Manulife, the WSIB and the Employer. These amended T4s were never issued to him despite his requesting them.

19The Grievor wants amended T4s for the years from 2014 to 2017, but particularly for 2016 when his vacation was cancelled.

20The Grievor claims that the Employer and Manulife were both repaid by the WSIB for wages and benefits advanced to the Grievor when the Grievor eventually qualified retroactively for WSIB income and benefits, yet they have refused to provide him with amended T4s reflecting these repayments.

The Employer’s Preliminary Objections

21The Employer raises preliminary objections to the grievances, claiming that they are not arbitrable. Both parties have filed extensive briefs. This decision addresses the objections.

22Firstly, the Employer contends that the issues raised in the current grievances are the same as those pursued previously before the GSB by the same parties, so they are res judicata. Secondly, the Employer claims the GSB is functus officio because a final decision on the same issues have already been made, and I have no authority to consider either grievance. Thirdly, the Employer claims the grievances are inarbitrable because they claim a remedy – a declaration that the Grievor’s employment relationship is severed, and he is entitled to severance pay – that the GSB does not have jurisdiction to grant. Fourthly, the Employer claims there is no prima facie case because the particulars of the grievances fail to allege facts, even if assumed to be true, that can support a breach of the collective agreement.

23For res judicata to apply three conditions must be met: 1) substantially the same issue has been determined in the prior decision; 2) the prior decision was a final decision by an adjudicator of competent jurisdiction; and 3) the prior decision was binding on the parties: OPSEU (Martin) v Ontario (Ministry of Transportation), 2023 CanLII 28226 (ON GSB), (McKendy), p.10, para 24. The doctrine also prevents a party from pursuing a matter that ought to have been raised in their earlier proceeding: OPSEU (Fitzpatrick) v Ontario (Ministry of Community Safety and Correctional Services), 2018 CanLII 109249 (ON GSB) (Gee), p.5, para 19; OPSEU (Martin), above, paras 37-58.

24The Employer submits that these conditions apply to the February 2021 grievance. The same claims of non-payment are made in the February 2021 grievance as were addressed in the above January 6, 2021 decision.

25The Employer argues that the same applies to the February 2022 grievance. The Grievor claims that the Employer instructed Manulife Financial to institute a civil claim against him for overpayment of his LTIP entitlement, and that the Employer did not fulfil its obligations to pay the Grievor what was due to him. The Employer says that these issues were addressed in the January 6, 2021 decision, specifically in Ontario Public Service Employees Union (Smieja) v Ontario (Children, Community and Social Services), 2021 CanLII 82502 (ON GSB) (Albertyn), a decision issued on August 26, 2021, and in the further decision issued on July 4, 2022, above.

26So, the Employer says that each issue raised in the two grievances has been addressed in the above three previous decisions.

27As to the Employer’s second argument, on functus officio, under the principles set out in Elgin Abbey Nursing Home and Service Employees Union, Local 210 (Irwin) (Re), 1999 CanLII 35948 (ON LA) (Kirkwood), an arbitrator has no further jurisdiction over a matter that was determined in a decision by that arbitrator. The Employer argues that the January 6, 2021 decision was of that nature, particularly as completed in the decision of July 4, 2022. The Employer submits that those issues have been concluded, and the arbitrator’s jurisdiction is exhausted.

28The issues resolved by those two decisions were the claims involving alleged harassment, discrimination, double taxation, double deductions and inaccurate pay information and administration, the same issues raised in the two current grievances.

29As to the Employer’s third argument, the inarbitrability of the current grievances, the Employer claims that the issues raised in the two grievances do not fall within the scope of the collective agreement, in that they do not arise expressly or inferentially from the collective agreement: OPSEU (Dobroff et al.) v Ontario (Ministry of the Environment), 2008 CanLII 19779 (ON GSB) (Dissanayake); OPSEU (Cherwonogrodzky et al) v. Ontario (Ministry of Finance), 2004 CanLII 55340 (ON GSB), (Gray); OPSEU (Lesieur et al.) v Ontario (Ministry of the Environment), 2005 CanLII 54831 (ON GSB) (Briggs); OPSEU (May et al.) v Ontario (Ministry of Community and Correctional Services), 2007 CanLII 14606 (ON GSB) (Abramsky); OPSEU (Belanger et al.) v Ontario (Ministry of Community Safety and Correctional Services), 2006 CanLII 17561 (ON GSB) (Harris).

30The Employer submits also that the remedial relief sought by the Grievor – severance pay – is wholly outside the scope of any remedial authority an arbitrator has under the collective agreement.

31On the Employer’s fourth argument – no prima facie case – it says that the facts asserted, if true, do not substantiate any violation of the collective agreement.

The Union’s Responding Submissions

32The Union contends that the proper test for res judicata is found in Mains Ouvertes - Open Hands Inc. v. O.P.S.E.U., Local 458, 1996 CanLII 20283 (ON LA), 1996 CarswellOnt 6119 (Roach), at pp. 10-11: the subsequent grievance must be between the same parties, the matter in dispute must be identical in both proceedings involving the same or an unaltered collective agreement, and it must be brought for the same object or remedy.

33The Union argues that these conditions are not met. It submits that the issues covered in the prior decisions did not include the claim in the February 2021 grievance of improper deductions from the Grievor’s wages in 2020 and 2021. Similarly, the prior decisions do not address the Grievor’s claim in the February 2022 grievance that he was entitled to amended T4s from the Employer and from Manulife for the years when he retroactively qualified for WSIB benefits (from 2014 to 2017), plus his claim of indemnification of legal costs for the legal proceedings by Manulife when it sought to obtain a refund of overpayments made to the Grievor, plus human rights damages for the Employer’s associated conduct.

34The Union contends, as in OPSEU (Richard) and The Crown in Right of Ontario (Ontario Clean Water Agency), 2005 CanLII 55133 (ON GSB) (Abramsky), that the particulars of the issues in the two grievances were not addressed in the prior decisions.

35In the alternative to these arguments, should it be found that the issues were addressed in the prior decisions between these parties, the Union submits that the offending particulars should be struck, and the remainder of the allegations in the two grievances should proceed.

36As regards the alleged inarbitrability of the grievances, the Union contends that the essential character of both grievances arises from the collective agreement and that, in any event, the GSB has jurisdiction to review the Employer’s exercise of management’s rights and discretion to ensure it is done reasonably.

37The February 2021 grievance concerns improper deductions from the Grievor’s wages in 2020 and 2021, during his time (since 2013) on WSIB, in an effort to deliberately defraud the Grievor of the income to which he was entitled from the WSIB. The Union argues that the adjudication of this issue falls squarely within the Employer’s obligations under the collective agreement to pay the Grievor correctly. Further, conduct meant to defraud the Grievor of his wages is discriminatory and in violation of the Ontario Human Rights Code, the source of such discrimination being the Grievor’s disability.

38Similarly, the Union argues that the February 2022 grievance arises from a breach of the Employer’s obligations under the collective agreement. The failure to provide corrected T4s for the period from 2014 to 2017 stems from the proper administration of the collective agreement.

39The Union relies on Bhasin v Hrynew, 2014 SCC 71 to argue that the duty of good faith generally, and to act honestly in the performance of contractual obligations, applies to the facts alleged in the two grievances, and entails that the GSB has jurisdiction to consider the two grievances, notwithstanding the absence of any direct reference to a particular provision of the collective agreement. The Union refers also to OPSEU (Plouffe) v Ontario (Ministry of the Solicitor General), 2024 CanLII 122873 (ON GSB) (Harris) where the principles espoused in Bhasin were adopted and applied.

40The Union submits that both grievances make allegations of arbitrary, bad faith, discriminatory and unreasonable conduct in the exercise of the Employer’s management rights with respect to its pay administration responsibilities and obligations. This, the Union argues, is sufficient for the grievances to be arbitrated.

41In response to the Employer’s claim of no prima facie case, the Union submits that if the improper deductions occurred, as alleged in the February 2021 grievance, that is sufficient to establish the relief sought and is therefore sufficient for a prima facie case. The Union says that the February 2022 grievance also makes out a prima facie case because, if the fraud alleged by the Grievor were true, and Manulife acted as the Employer’s agent in fraudulently claiming an overpayment in an action before the regular courts, and if false T4s were issued intentionally to deprive the Grievor of his full earnings, the Grievor would be entitled to the relief sought. Accordingly, there is manifestly a prima facie case to be answered in both grievances.

42The Union also submits that, following OPSEU (Evangelista et al) v Ontario (Ministry of the Attorney General), 2011 CanLII 41847 (Harris), an order depriving a grievor of the entitlement to have their case heard on grounds of inarbitrability should be made only in the clearest of cases.

43The Union submits that, at this preliminary stage, the Grievor need not produce evidence of his claim that the Employer directed Manulife to initiate legal proceedings against him. The Union suggests that the non-suit motion can be raised only once the Union’s evidence has been heard and there is a claim of insufficient evidence to support this allegation.

44The Union avers that the Grievor’s known status as a disabled person is sufficient to establish that any adverse treatment regarding the Employer’s administration of its pay and benefits obligations towards him is prima facie evidence of discrimination on a prohibited ground.

45Similarly, the Union suggests that the Grievor’s disabled status, in the context of civil proceedings being brought against him by Manulife, establishes prima facie that the Employer has harassed the Grievor, and discriminated against him.

46In summary, the Union claims that the two grievances raise different issues from those dealt with in prior decisions, and the Grievor should be permitted to have these grievances heard.

The Employer’s Reply Submissions

47The Employer claims there is no factual basis in either of the two grievances to establish that the Grievor has been subject to adverse treatment as a consequence of his disability. Consequently, the Employer submits, there is no basis for the Grievor to claim discrimination on a prohibited ground under the Code.

48The Employer submits that the application of the principles in Bhasin, applied by the GSB, require that, in the exercise of their contractual obligations arising from the terms of the collective agreement, the parties must act in good faith towards each other. This entails determining whether the terms of the collective agreement have been violated, or the employee’s rights have been breached. The good faith obligations are directly linked to the application of the collective agreement. The Employer submits that this approach was adopted in Tighe v Ontario (Solicitor General), 2020 CanLII 45594 (ON PSGB) (Devins), and it should apply here. Arbitrator Devins found that Bhasin did not expand the arbitrator’s jurisdiction, nor did it provide a free-standing condition or term of employment separate from the performance of the existing employment contract between the parties.

Decision

49It is as well to review what was covered in the prior decisions I issued between these parties.

50In the decision issued on April 4, 2018¹, I reviewed all of the grievances filed to that point and all of the issues raised in the Grievor’s seven grievances filed between 2015 and 2017 and I found that only two issues were not resolved in the parties’ Minutes of Settlement concluded on August 20, 2015. Those two issues were: the Grievor’s claim for a declaration that he was entitled to receive 65 days’ pay for the waiting period until his WSIB payments were received; and the Employer’s counterclaim that the Grievor was paid by the Employer for the period when he was also receiving payments from WSIB, resulting in him being double paid for the same period.

51The parties filed submissions on these issues.

52A decision was issued on April 30, 2019². This dealt with the Union’s claim that I had no jurisdiction to determine the Employer’s counterclaim. Directions were issued to file written submissions on this issue.

53Thereafter the Employer decided not to pursue its counterclaim. This was recorded in the next decision issued, on January 6, 2021³. This decision determined a number of issues. I found that the Grievor received $3,652.74 less than he ought to have been paid for the 65-day waiting period and throughout 2013. The Employer was directed to pay this amount to the Grievor. Also, I found that the Grievor was short paid for certain sick leave absences in 2014, in the amount of $258.51. This amount too the Employer was required to pay to the Grievor. I also directed that interest on these amounts be added, in the amount of $319.20. All of these amounts were to be paid, and were paid, to the Grievor by the Employer.

54The next decision was issued on August 26, 2021 following written submissions from the parties⁴. The submissions arose from the Grievor believing that more money was owed to him than was ordered in the January 6, 2021 decision. It is notable that the first grievance that is the subject of the present decision was filed on February 19, 2021, and that the written submissions for the August 26, 2021 decision were filed subsequent to the filing of this grievance.

55The August 26, 2021 decision considered six financial claims by the Grievor. Five of the Grievor’s six claims were dismissed. The sixth was such that the Employer was given an opportunity to respond. It is worth mentioning what was specifically addressed in this decision:

[1] Previous decisions have been issued in this matter. A final decision was issued on January 6, 2021.

[2] In that decision an award was made for the payment of money due by the Employer to the Grievor.

[3] Subsequently, the Union asked for leave to allow the Grievor to write a written submission. This request was not opposed, and such leave was granted.

[4] The Grievor has filed an undated submission.

[5] He believes more money is owed to him by the Employer than was ordered in the January 6, 2021 decision.

[6] The Grievor’s first claim, described as his “first financial interest”, is that he is owed an additional $12,000 by the Employer. He believes that money due to him by the WSIB was not paid to him at the Employer’s instance, presumably resulting in the alleged short payment to him. He contends that the financial information provided to him by the Employer is deficient, making it impossible for him to determine exactly how much is due.

[7] In June 2020 the Employer provided a comprehensive Excel document to the Union (and the Grievor) that shows every amount paid to the Grievor by the Employer and by the WSIB, and for what purpose, in the period March 27, 2013 to January 26, 2015 (“the payments document”).

[8] The above period more than covers the period of the Grievor’s claims in this matter.

[9] The Grievor does not point to any error or miscalculation in the payments document.

[10] On its face, there does not appear to be any error in the payments document, which makes clear that no further amount is due to the Grievor by the Employer than what was ordered in the January 6, 2021 decision.

[11] In the circumstances, assuming jurisdiction to be able to reconsider, I am not persuaded that the Grievor’s first claim warrants any reconsideration of the January 6, 2021 decision.

[12] The Grievor’s second claim – his “second financial interest” – is that the pay slips he has do not assist him to ascertain what happened to payments due to him in the period after the initial 65 days of his going onto WSIB benefits and the date the WSIB started paying him. Consequently, the Grievor asks for full financial disclosure of what was due to him by the Employer and by the WSIB, with details of what was paid to him.

[13] The answer to this second claim is the same as that to the first. The payments document sets out fully what was paid to the Grievor during the relevant period, and what was due to him by both the Employer and by the WSIB. The Grievor’s submissions do not cast doubt on its validity. The payments document does not disclose that any additional amounts are owing to the Grievor.

[14] The Grievor’s third claim – his “third financial interest” – is that he is entitled to claim interest on the delay of payments he received from the WSIB as a result of the Employer’s conduct.

[15] All interest owing to the Grievor was addressed at the hearing of this matter, as described in the January 6, 2021 decision. Assuming jurisdiction to be able to reconsider, I am not persuaded to reconsider the decision based on this submission.

[16] The Grievor’s fourth claim – his “fourth financial interest” – is that excessive tax was deducted from his pay by the Employer. He says that the Employer used the wage rate of $36.54 to calculate the tax deduction from his pay, when his rate of pay was $32.64 per hour.

[17] The payments document makes clear that all calculations with respect to the Grievor’s pay were made on the basis that his rate of pay was $32.64 per hour, as he claims. Nowhere is there reference to any calculation based on a pay rate of $36.54 per hour. In the circumstances, no change to the January 6, 2021 decision is warranted.

[18] The Grievor’s fifth claim concerns how the calculation of the deductions from his current disability payments is made. That issue is not part of what was addressed in the January 6, 2021 decision and therefore falls outside of the scope of that decision.

[19] The Grievor’s sixth claim is that double CPP and EI deductions were made from the disability benefits he received in 2013. The payments document does not show what amounts were deducted. The Employer is given an opportunity to respond to this aspect of the Grievor’s submission.

56All of the issues the Grievor was concerned about regarding money he believed was owing to him, and all financial issues he believed needed to be addressed as between him and the Employer, were included in his written submission. Five of the claims were dismissed, as explained, and the sixth was left for later determination following further submissions.

57The Grievor’s sixth claim was addressed in a decision issued on July 4, 2022⁵. Written submissions had been provided by the parties. Prior to the issuing of this decision, on February 27, 2022, the Grievor filed the second of the two grievances that are under consideration in this decision. The July 4, 2022 decision determined that there was no double deduction of EI and CPP for the disability benefits the Grievor received in 2013.

58The July 4, 2022 decision ended with the following:

[5] In the circumstances, nothing more remains in this matter. Payments have been made to the Grievor by the Employer in accordance with the decision of January 6, 2021.

59The last paragraph conveyed to the parties that everything the Grievor could have raised regarding the period from 2013 to 2020 regarding the payment of money by the Employer and (as related to the grievances filed) by the WSIB and Manulife had been addressed. That included everything the Grievor could have raised regarding payments by any of the three: the Employer, the WSIB and Manulife. All of it had been addressed.

60The particulars provided by the Union on behalf of the Grievor in the two grievances, contain the following:

• The Grievor has still not received his wages from 2013.
• The Pay Slip Advice dated January 27, 2021 is a misrepresentation to allow the Employer to collect money that does not belong to the Employer. The deductions reflected on the Pay Slip Advise are kept by the Employer and the Grievor is double taxed because of his medical condition.
• The employment relationship is beyond repair and should be severed.
• The income the Grievor received from the Employer and from Manulife was taxable. The retroactive loss of earnings income the Grievor received from the WSIB was not taxable. The Grievor sought amended T4s from Manulife for the years he received LTIP benefits (2015 and 2016) to reconcile the tax consequences and seeks reimbursement of remitted taxes for the period when he retroactively qualified for WSIB benefits. The Grievor claims Manulife refused to do so.
• In October 2017 Manulife informed the Grievor that the refund it received from the WSIB resulted in an overpayment by Manulife to the Grievor. Manulife requested the Grievor refund this overpayment balance, which in September 2019, Manulife claimed to be $6,920.91. Manulife commenced legal proceedings in Small Claims Court against the Grievor to recover this amount.
• The Grievor claims that from 2017 to 2022, his psychological symptoms prevented him from following up to seek amended T4s from the Employer and Manulife.
• From the above, the Grievor claims that the Employer and Manulife are obliged to give him amended T4s following the retroactive payments made by the WSIB to the Employer and Manulife. The Grievor understands that he requires these amended T4s in order to qualify retroactively for non-taxable WSIB loss of earnings benefits.
• The relief sought from the above is that the Employer and Manulife be directed to issue amended T4s from 2014 onwards.
• The Grievor alleges that the Smalls Claims Court action by Manulife against him is harassment and reprisal by the Employer, and he seeks refund of the unspecified legal representation fees and disbursements he incurred. No information is given by the Union as to what occurred in that litigation.
• The Union claims the Employer’s failure to provide the amended T4s for the years when he was retroactively qualified for WSIB benefits (2016 retroactively to 2013) is arbitrary, discriminatory, in bad faith, and an unreasonable exercise of management rights and pay administration obligations under the collective agreement.
• As Manulife is the administrator of the Employer’s LTIP benefits, Manulife acts as agent for the Employer in administering these benefits. Any redress sought against Manulife can therefore be sought from the Employer.
• Accordingly, the Union claims that the Employer has violated the collective agreement and the Ontario Human Rights Code by:
  • Failing to provide the Grievor with amended T4s from 2014 to 2017.
  • Failing to direct Manulife to provide the Grievor with amended T4s for 2015 and 2016.
  • Acting in a bad faith, discriminatory and unreasonable manner by instructing Manulife to initiate legal proceedings against the Grievor for pay and benefits administration issues.
  • Harassing and discriminating against the Grievor on grounds of his disability by failing to administer its pay and benefits obligations under the collective agreement.
• In light of these allegations, the Grievor seeks the following remedies:
  • An order that the Employer provide the Grievor with amended T4s from 2014 to 2017.
  • An order that the Employer direct Manulife to issue amended T4s for 2015 and 2016.
  • An order for damages for the Employer’s breach of the Human Rights Code.
  • An order for the payment of the legal costs incurred by the Grievor in the Small Claims Court proceedings initiated by Manulife.

61Notably, Manulife has not been a party to any of the proceedings, so no possible order could be made against Manulife.

62Reviewing each of these allegations, the following are either directly addressed in the 2015 Minutes of Settlement or in the various decisions issued subsequently or, to the extent the issue was not directly addressed, it was directly related to an issue that was addressed or that the Grievor had an opportunity to mention as part of the issues being addressed:

• The Grievor has still not received his wages from 2013.
• The relief of amended T4s for 2015 and 2016, and from 2017 to 2022.
• The claim for a refund from Manulife (over which the GSB has no jurisdiction), and from the Employer, and the legal proceedings arising from the claim for a refund.
• Alleged harassment and discrimination by the Employer against the Grievor on grounds of his disability by failing to administer its pay and benefits.

63What is missing from the above, and was not manifestly addressed either directly or by necessary inference in the prior decisions, are two allegations:

• The Pay Slip Advice dated January 27, 2021 is a misrepresentation to allow the Employer to collect money that does not belong to the Employer. The deductions reflection on the Pay Slip Advise are kept by the Employer and the Grievor is double taxed because of his medical condition.
• The employment relationship is beyond repair and should be severed.

64The first allegation concerns a T4 form issued by the Employer for the 2020 tax year. It shows that the Grievor earned $168 from the Employer that year, while the Grievor was receiving WSIB loss of earning benefits. As has been explained above, a decision awarding money to the Grievor was issued on January 6, 2021. There was then a period when further submissions were provided by the Union on money allegedly owed to the Grievor. As is made clear above, the Grievor submitted six financial claims. The claim of a misrepresentation of the T4 form received on January 27, 2021 could, and should, have been included in his financial claims. That was the Grievor’s opportunity to do so. He cannot now raise it as a fresh claim. In the circumstances, I regard this claim as being subsumed within the August 26, 2021 decision.

65The second allegation is that the employment relationship is beyond repair and should be severed. This is the basis on which the Grievor claims he is entitled to be awarded severance pay.

66The Grievor has not been at work since December 29, 2016. Since then he has been continuously on WSIB loss of income benefits (with WSIB payments back to 2013). The employment relationship has not ended, and it continues. There is nothing in the allegations that suggests that it has been terminated, which might warrant the Grievor receiving severance pay. The allegations made by the Grievor also do not make out a case that would suggest that the relationship between him and the Employer is so destroyed that the award of severance pay in damages might be warranted.

67The Grievor makes allegations that he is being discriminated against on grounds of his disability, but there are no facts provided that support this claim. Accordingly there is no basis for concluding that there might have been any breach of the Human Rights Code. Similarly, there are no allegations that suggest a breach of the collective agreement that the Grievor did not have the opportunity to raise in the previous grievances and during the opportunities he has had to file additional submissions.

68As the Employer argues, there is accordingly no prima facie case warranting the payment of severance to the Grievor. This allegation is therefore dismissed as making out no prima facie case.

69Consequently, everything raised in the two grievances of February 2021 and February 2022 has either been subsumed by what was decided in the various decisions in the period following the 2015 Minutes of Settlement, or the allegation does not make out a prima facie case of any violation of the collective agreement or of the Human Rights Code.

70Arbitrator Gee in OPSEU (Fitzpatrick) v Ontario (Community Safety and Correctional Services), 2018 CanLII 109249 (ON GSB) describes the purposes of the doctrine of res judicata:

[19] There are two distinct aspects to res judicata. First, it bars a party from adjudicating a matter that has already been decided. Second, it prevents a party from adjudicating a matter that it ought to have brought up in an earlier proceeding.

[21] … Res judicata prevents a party from later advancing the same claim but based on different facts that were available at the time of the first proceeding, and, more importantly for the purposes of this motion, prevents claims determined in one proceeding from being dragged forward into subsequent proceedings.

71Also, the approach of Arbitrator McKendy in OPSEU (Martin) v Ontario (Ministry of Transportation), 2023 CanLII 28226 (ON GSB) is applicable to the facts and issues in this case. The facts relied on in the two grievances and the issues involved overlap with those that were addressed in the various decisions from 2015 to 2022. To the extent they were not raised specifically at that time, the claims in the two grievances relate wholly to facts and circumstances that were being addressed in the decisions issued in that period. The Grievor had a full opportunity to present every issue of concern to him, including any concern he had regarding the payment of money as between him and the Employer, the WSIB and Manulife. The assumption applies that the Grievor did so. Each of the issues and concerns he raised were addressed in detail by the parties.

72I find that the doctrine of res judicata applies to virtually all of the allegations contained in the two grievances, and the lack of a prima facie case applies to the remaining allegation of a destroyed employment relationship.

73All of the allegations made in the two grievances are dismissed for lack of a prima facie case or on grounds of res judicata. They were either expressly addressed or the Grievor had an opportunity to raise them previously as they are directly related to the payment of money between the Grievor and the Employer, the WSIB and Manulife – this being the central issue in each of the previous decisions. The prior decisions between the same parties finally determined all issues of money between them covering the period referred to in the two grievances.

74This is particularly apparent from the relief sought by the Grievor in the grievances. It delves back into the financial issues between 2014 and 2017. Those issues were either dealt with or they ought to have been raised then. All of the resolutions – the Minutes of Settlement in 2015 and the subsequent decisions – were founded on a full consideration of everything that had been raised, and everything that could have been raised. Nothing more remains.

75I am guided in reaching these conclusions by the summation provided by Arbitrator Gee in OPSEU (Fitzpatrick), above:

[19] … The principle of res judicata serves to bar evidence in order to preserve and protect principles such as: confidence in the administration of justice; judicial economy; consistency of decisions; the prevention of forum shopping; and the finality of legal disputes. In a grievance arbitration system where there are a considerable number of grievances that are referred to mediation and arbitration, the system would simply break down if parties were permitted to relitigate matters already decided or engage in litigation by instalment.

76In the circumstances I uphold the Employer’s res judicata objection and its “no prima facie case” objection to these grievances proceeding. The grievances are dismissed.

Footnotes

1. 1OPSEU (Smieja) v Ministry of Children and Youth Services, 2018 CanLII 45301 (ON GSB) (Albertyn).
2. 2OPSEU (Smieja) v Ministry of Children and Youth Services, 2019 CanLII 42409 (ON GSB) (Albertyn).
3. 3OPSEU (Smieja) v Ministry of Children and Youth Services, 2021 CanLII 7236 (ON GSB) (Albertyn).
4. 4OPSEU (Smieja) v Ministry of Children and Youth Services, 2021 CanLII 82502 (ON GSB) (Albertyn).
5. 5OPSEU (Smieja) v Ministry of Children and Youth Services, 2022 CanLII 708692 (ON GSB) (Albertyn).```