GSB# 2023-01619; 2023-01620

UNION# 2023-0248-0055; 2023-0248-0056

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Union)

Union

• and -

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

Employer

BEFORE

Kevin Banks

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

George Parris Treasury Board Secretariat Legal Services Branch Senior Counsel

HEARING

May 2, 2025

Decision

1The Employer moves to strike some parts of the two grievances with which I am seized, on the grounds of issue estoppel and that they constitute a collateral attack on decisions of Ministry of Labour occupational health and safety inspectors.

2The Union responds that because the grievances do not in fact deal with the same issues as were addressed by the labour inspectors, they cannot be the subject of issue estoppel, nor can they constitute a collateral attack. In the alternative, the Union maintains, I should not exercise the discretion to apply issue estoppel, in order to avoid injustice.

3For the reasons that follow, I allow the Employer’s motion.

Evidence

4The Union provided a Statement of Particulars to the Employer on March 18, 2023. The parties agreed that for the purposes of this motion I must treat the Union’s Statement of Particulars as true and provable. I was also provided with documentary evidence on consent of the parties.

5Hamilton Wentworth Detention Centre (HWDC) is a maximum security facility located in Hamilton, Ontario. It employs approximately 300 Correctional Officers. At any given time, it houses approximately 520 inmates.

6There are two grievances before me. Both concern events at HWDC. The Union’s Particulars describe them as follows:

The Union filed OPSEU grievance number 2023-0248-0055 dated August 9, 2023 claiming a breach of Articles 2 and 9 of the collective agreement, the OHSA and the internal responsibility system, the weapons search protocol, the ISPPM [Institutional Services Policy and Procedure Manual], standing orders, Superintendent Directives. The Union further claimed that the administration failed to follow the above noted policies and protocols and failed to take every precaution reasonable for the protection of the workers on July 3 and 4, 2023 when health and safety concerns were raised after a makeshift weapon was observed / witnessed by Correctional Officers working on unit 4C right.

The Union filed OPSEU grievance number 2023-0248-0056 dated August 9, 2023 claiming a breach of Articles 2 and 9 of the collective agreement, Section 25(2)(h) and Section 50(1) of OHSA, the weapon search protocol (WSP), and any other relevant article or agreement. On July 3 and 4, 2023 the HWDC Administration violated the above noted agreements and legislation by: ordering staff to stay beyond their shift to conduct a search, ordering reports to be written if staff were unable or unwilling to stay and subsequently threatening reprisal; threatening reprisal against the Local H & S [Health and Safety] co-chair; changing the agreed upon verbal terms of the WSP and removing certain protocols as reprisal for the workers refusal to withdraw their H & S concerns; and, failing to take every precaution reasonable for the protection of the workers.

7The Employer’s motion does not seek to strike the Union’s claims related to allegations of reprisal. I will therefore not discuss evidence relevant only to those allegations.

8The grievances arise out of two sets of incidents, one on July 3, 2023, and the other the following day, in which Correctional Officers (COs) found evidence indicating that inmates had obtained materials that had been or could be fashioned into weapons, using broken food trays to create plastic shanks.

9In the first incident, according to the Statement of Particulars, CO Dylan Foks observed an inmate holding a weapon, which the inmate then sought to conceal. CO Foks secured the inmate in his cell and then with the assistance of other COs similarly secured other inmates in the surrounding cell unit, Unit 4. COs reviewed video surveillance recordings and searched garbage bins, obtaining evidence that a food tray had been broken up into smaller pieces, some of which had sharp points on their ends, and that an unknown object had been passed between inmates in cells 17 and 18 of Unit 4.

10CO Foks then requested that searches be conducted of inmates and their cells. Specifically, CO Foks sought a “Level 4 search with ICIT” [Institutional Crisis Intervention Team] of cells 17 and 18, and a Level 2 search of the remainder of the Unit. Management representatives agreed to conduct searches, but not the type and level of searches requested.

11CO Foks then initiated a work refusal, invoking rights under the Occupational Health and Safety Act. Management and Union representatives discussed the situation but were unable to resolve the disagreement. The Employer then contacted the Ministry of Labour.

12At around 18:20 Ministry of Labour Inspector Frederick Chadwick met with representatives of the Employer and the Union to address the work refusal. At around 21:00 the inspector advised the parties of his ruling that there was no right to refuse work in the circumstances.

13According to the Statement of Particulars, around this time:

Management had advised that they were willing to perform a level 2 search. MacLean and Martyn [union and management representatives, respectively] agreed and understood that if during the level 2 search an inmate became non-compliant or refused to be searched that ICIT would be reconsidered. MacLean and Martyn also agreed and understood that the body scanner and searching of the pipe chases would be part of the level 2 search.

14The Inspector’s report of that date stated that:

The inspector contacted the workplace parties in response to a worker refusing to work (SAC# 51079). Workers felt it was unsafe to search inmates cells where a weapon may be present.

Section 43(1)(a) of the OHSA applies. The reason given by the refusing worker is inherent in the worker’s work or is a normal condition of work.

The concerns were resolved with the inspector’s assistance.

No further Ministry assistance is required.

15Mr. Martyn and Ms. MacLean signed the report on behalf of the Employer and the Union, respectively, with Ms. MacLean writing “Not in Agreement” next to her signature.

16Searches on July 3, 2023 turned up a shank fashioned from a beige meal tray. Further, the Unit 4CR bathroom was searched and a 7.5 inch piece of a meal tray was found. Cells 17 and 18 were level 2 searched on the evening of July 3, 2023. The body scanner was not used as it was after 2200 hours and staffing levels were on night shift level. It was understood by the Union that body scanning would be done the following morning.

17On July 4, 2023 a new shank fashioned from a green meal tray was found, meaning that two trays had been used to fashion shanks in the 4C unit. Cells 17 and 18 were Level 2 searched and inmates in those cells were body scanned. Approximately one third of a green meal tray was found in the toilet pipe chase in cell 18. The other two thirds of the tray remained missing.

18When COs sought to initiate body searches of inmates in other cells, and to search the pipe chases in other cells, the Employer refused permission. The Union maintains that this was contrary to an agreement that it had reached with Employer representatives on July 3.

19In response, CO Adam Schweinbenz initiated a work refusal. According to the Statement of Particulars “Schweinbenz initiated a health and safety concern due to the new information of [sic] another shank of a different colour was found as well as the refusal to body scan all inmates in 4CR and the fact that the scanner is the only way to effectively detect plastic which is concealed inside a human body.” The Union took the position that by not conducting the body scans and pipe chase searches the Employer was failing to take every precaution reasonable for the protection of the worker in the circumstances.

20Later that day Inspector Chadwick met with the parties by teleconference and issued a second report. The Inspector’s report stated as follows:

The inspector contacted the workplace parties in response to a worker refusing to work (SAC# 51086). Workers felt it was unsafe to search inmates’ cells where a weapon or item may be present without the utilization of a body scanner.

Section 43(1)(a) of the OHSA applies. The reason given by the refusing worker is inherent in the worker’s work or is a normal condition of the worker’s employment.

The concerns will be investigated as a complaint. No orders or requirements issued.

21Again, Mr. Martin and Ms. MacLean signed the report on behalf of each of the parties. Ms. MacLean wrote “In receipt only” next to her signature.

22On July 6, 2023, MOL Inspector Jeff Hunt attended at the Employer’s premises. Inspector Hunt’s report in relation to that visit notes that its purpose was to “audit compliance with the Occupational Health and Safety Act”. It provides the following as its Detailed Narrative:

The Ministry of Labour, Immigration, Training and Skills Development (MLITSD) attended the workplace to follow up on health and safety concerns related to work refusals that have occurred in the workplace this week (refer to Field Visit Reports #0451 1SMGC197 and #0451 1SMHC203 for further detail).

INSPECTOR COMMENTS:

The noted work refusals involved concerns of inmates possessing weapons made from food trays. Information was gathered regarding procedures in place to prevent food service trays, plateware, cutlery etc. from being misappropriated by persons in custody of the detention centre.

Persons contacted verified that there are existing procedures in place involving tracking of inventory from kitchens to units to cells and back, including supervision and accountability elements. In addition to the noted procedures, it is reported that a superintendant [sic] direction is forthcoming within the next week to provide further direction, information and instruction to workers on the inventory tracking procedures.

COPY OF THIS REPORT IS REQUIRED TO THE POSTED IN LOCATIONS WHERE IT IS LIKELY TO COME TO THE ATTENTION OF WORKERS

The Report notes that no orders were issued.

23The Union did not appeal any of the above inspector decisions to the Ontario Labour Relations Board.

Summary of the Arguments of the Parties

Employer Arguments

24The Employer submits that this Board has recently determined, in a decision upheld on judicial review, that in a very similar situation that issue estoppel should apply: Re Ontario Public Service Employees Union and The Crown in Right of Ontario (Ministry of the Solicitor General) (Union Grievance), GSB # 2020-1161; 2020-1163; 2020-1165; 2020-1169, February 5, 2024 (MacLean); Ontario Public Service Employees Union v. Ontario (Solicitor General), 2025 ONSC 1801. As in that case, the Employer says, the three requirements for issue estoppel – that the parties be the same, the finality of the previous decision, and that the same issues are raised - have been met. There is no dispute that the parties to the grievances are the same parties as those involved in the labour inspectors’ decisions, or that those decisions were final for the purposes of issue estoppel. The Employer submits that the MOL Inspectors’ decisions addressed all of the issues raised by the grievances except the allegations of reprisal. The Employer maintains that this can be inferred from the inspectors’ decisions, and from the description of the positions taken by the employees refusing to work, and by the Union, as set out in the Statement of Particulars.

25Moreover, the Employer urges, there is no basis upon which to exercise discretion not to apply issue estoppel in the interests of fairness to the parties. The Employer maintains that there was no unfairness in the proceedings, which took place expeditiously, allowed both parties full rights of participation, and were subject to full rights of appeal to the Ontario Labour Relations Board (OLRB). Had the Union appealed to the OLRB, the employer notes, an occupational health and safety issue that was addressed in 2023 could have been fully resolved a long time ago.

26Finally, the Employer maintains that the grievance amounts to a collateral attack on the inspectors’ determinations. Where the legislature has prescribed an appeal mechanism, submits the Employer, decision-makers in other fora must give effect to that choice rather than allowing parties before them to attack decisions collaterally: Toronto Transit Commission v. A.T.U., Local 113, 2010 CarswellOnt 11482, [2010] O.L.A.A. No. 467, 103 C.L.A.S. 107, 197 L.A.C. (4th) 265; Workers’ Compensation Board v. Figliola et al. and British Columbia Human Rights Tribunal 2011 SCC 52, [2011] 3 S.C.R. 422; OPSEU v. Ontario (2025), supra; OPSEU (Union Grievance), supra. Allowing the Union to relitigate the inspectors’ decision through grievance arbitration would, in the Employer’s view, permit an abuse of process.

Union Arguments

27The Union takes the position that the inspectors did not in fact determine the health and safety precaution issues raised by the grievances. Rather, the Union submits, they only determined whether work refusals were justified under the Occupational Health and Safety Act. The Union emphasizes that these are separate legal issues involving the application of different sections of the Act: O.P.S.E.U., Local 359 v. Ontario (Ministry of Solicitor General & Correctional Services),1997 CarswellOnt 5207 (OLRB); Toronto Elementary Catholic Teachers / Ontario English Catholic Teachers Association v. Toronto Catholic District School Board, 2017 CanLII 37957 (OLRB). Accordingly, submits the Union, an essential requirement for issue estoppel, that an earlier decision have dealt with the same issues, has not been met.

28Similarly, the Union argues, there is no collateral attack on the inspectors’ decisions because the grievances do not challenge their determination regarding the work refusals or seek any remedies in respect of them.

29In the alternative, the Union submits, even if the requirements for applying issue estoppel have been met, I should exercise discretion not to apply it because doing so would result in unfairness. The Union points out that this grievance was filed on August 9, 2023, well before Arbitrator MacLean issued his 2024 decision in the Union Grievance case, supra. That decision, the Union maintains, changed the longstanding legal landscape at the Grievance Settlement Board in a surprising way. The Union points me to Re Ontario Public Service Employees Union (Greenbank) and The Crown in Right of Ontario (Ministry of Finance) GSB# 2003-2771, 2005 CanLII 55198 (ON GSB), June 1, 2005 (Mikus), in which Arbitrator Mikus allowed a grievance concerning alleged violations of the Occupational Health and Safety Act to proceed notwithstanding that the Union had received a determination from a labour inspector with respect to the same issues as the grievance raised. The Union also refers me to: Re Association of Management, Administrative and Professional Crown Employees of Ontario (Union Grievance) and The Crown in Right of Ontario (Management Board Secretariat), GSB# 2003-2754, July 12, 2004 (Brown); Re Ontario Public Service Employees Union and The Crown in Right of Ontario (Rouatt), GSB# 2012-4551, May 27, 2013 (Herlich). This Board, the Union maintains, had for more than 20 years allowed parties to initiate concurrent legal proceedings to deal with health and safety matters, and had not required parties to appeal to the Ontario Labour Relations Board when they wished to challenge an inspector’s determination. It would be an injustice, the Union maintains, to prevent the Union from moving forward with its grievance to have the substantive issues that it raises determined.

Employer Reply

30In reply, the Employer says that it is not plausible to infer that the inspectors did not address the potential hazards at issue in the grievances and instead limited their determinations to whether the Correctional Officers had a right to refuse work. This would, the Employer insists, require a finding that inspectors made aware of allegations of unsafe work concluded nonetheless that no further Ministry action was required, without addressing those allegations and in neglect of their statutory duties. The Employer points out that it is not possible to seek to justify a work refusal without identifying an alleged workplace hazard, that the evidence indicates that the same alleged hazards at issue in the grievances were identified in meetings with the inspectors, and that the July 4 inspector’s report ends by stating that the concerns presented to the inspector “will be investigated as complaints”. The Employer submits that these things, and the contents of the July 6 report of Inspector Hunt, indicate that inspectors recognized and addressed all of the health and safety issues presented to them.

31Finally, the Employer submits that the legal landscape regarding issue estoppel and collateral attack has been changing for a long time, and that “what was OK in 2005 was already starting not to be OK by 2010 to 2015”. In this regard, the Employer points to the Toronto Transit Commission decision, supra, issued in 2010, and the Supreme Court’s Figliola decision, supra, issued in 2011. For this reason, the Employer submits, it would not be unjust to the Union to decline to hear aspects of the grievances amounting to a collateral attack on the inspectors’ decisions.

Reasons for Decision

32The doctrine of issue estoppel serves important purposes in labour law, as in other legal fields. As the Supreme Court of Canada said in Penner v. Niagara (Regional Police Services Board) 2013 SCC 19, [2013] 2 SCR 125 (quoted by Arbitrator MacLean at para 50 of the Union Grievance decision, supra):

28Relitigation of an issue wastes resources, makes it risky for parties to rely on the results of their prior litigation, unfairly exposes parties to additional costs, raises the spectre of inconsistent adjudicative determinations and, where the initial decision maker is in the administrative law field, may undermine the legislature’s intent in setting up the administrative scheme. For these reasons, the law has adopted a number of doctrines to limit relitigation.

29The one relevant on this appeal is the doctrine of issue estoppel. It balances judicial finality and economy and other considerations of fairness to the parties. It holds that a party may not relitigate an issue that was finally decided in prior judicial proceedings between the same parties or those who stand in their place.

33The Supreme Court has set out a three-part test to determine whether issue estoppel may be applied:

1. Was the same question decided?

2. Was the decision final?

3. Were the parties the same?

(See Union Grievance, supra, at paras 35 and 57, citing Angle v. Minister of National Revenue, 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248.)

34There is no dispute that the grievances involve the same parties and the inspectors’ decisions were final. In Figliola, supra, the Supreme Court said at paragraph 51 that in the context of the issue estoppel test:

“Final" means that all available means of review or appeal have been exhausted. Where a party chooses not to avail itself of those steps, the decision is final.

The decisions of the inspectors became final once the time limit for appeal to the Ontario Labour Relations Board had elapsed without an appeal being initiated.

35The difference between the parties with respect to whether the requirements for issue estoppel have been met concerns what issues the inspectors in fact decided. The Employer says that the inspectors addressed all issues arising under Section 25(2)(h) of the Occupational Health and Safety Act and Article 9 of the Collective Agreement, and not simply the question of whether COs Foks and Schweinbenz had the right to refuse work under Section 43 of the Act, as the Union maintains.

36Article 9.1 of the Collective Agreement provides as follows:

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.

The employer obligations in first sentence of Article 9.1 fall within the scope of obligations in Section 25(2)(h) of the Act, which requires that employers “shall take every precaution reasonable in the circumstances for the protection of a worker”.

37Section 43 of the Occupational Safety and Health Act provides, among other things, that:

43 (1) This section does not apply to a worker described in subsection (2),

(a) when a circumstance described in clause (3) (a), (b), (b.1) or (c) is inherent in the worker’s work or is a normal condition of the worker’s employment…

(2) The worker referred to in subsection (1) is…

(c) a person employed in the operation of,

(i) a correctional institution or facility…

(3) A worker may refuse to work or do particular work where he or she has reason to believe that…

(b.1) workplace violence is likely to endanger himself or herself…

(4) Upon refusing to work or do particular work, the worker shall promptly report the circumstances of the refusal to the worker’s employer or supervisor who shall forthwith investigate the report in the presence of the worker and, if there is such, in the presence of one of,

(a) a committee member who represents workers, if any;

(b) a health and safety representative, if any; or

(c) a worker who because of knowledge, experience and training is selected by a trade union that represents the worker, or if there is no trade union, is selected by the workers to represent them,

who shall be made available and who shall attend without delay…

(6) Where, following the investigation or any steps taken to deal with the circumstances that caused the worker to refuse to work or do particular work, the worker has reasonable grounds to believe that…

(b.1) workplace violence continues to be likely to endanger himself or herself…

the worker may refuse to work or do the particular work and the employer or the worker or a person on behalf of the employer or worker shall cause an inspector to be notified thereof.

(7) An inspector shall investigate the refusal to work in consultation with the employer or a person representing the employer, the worker, and if there is such, the person mentioned in clause (4) (a), (b) or (c).

(8) The inspector shall, following the investigation referred to in subsection (7), decide whether a circumstance described in clause (6) (a), (b), (b.1) or (c) is likely to endanger the worker or another person.

(9) The inspector shall give his or her decision, in writing, as soon as is practicable, to the employer, the worker, and, if there is such, the person mentioned in clause (4) (a), (b) or (c).

38As can be seen from this excerpt, under Section 43 an Inspector responding to a work refusal by a worker employed in the operation of a correctional facility must first determine whether the worker has the right to refuse, by deciding whether the circumstance alleged to endanger the worker is inherent in the worker’s work or is a normal condition of the worker’s employment. If the inspector determines that either is the case, Section 43 does not apply, and the work refusal is not lawful.

39That should not normally be the end of the matter, however. A determination that there is no right to refuse does not necessarily mean that the circumstance giving rise to the refusal is in compliance with the Act, including Section 25(2)(h). Further, the Ontario Labour Relations Board has recognized a duty of inspectors to follow up to determine whether it is. As Vice-Chair Cummings observed in the O.P.S.E.U., Local 359 v. Ontario, supra, a case where the inspector had not done so:

66. I am also concerned that Pitfield’s complaint was not followed up. In Adult Occupational Centre (May 4, 1992, AP 09/92, Blair) the Adjudicator wrote:

Certain categories of workers, by reason of the nature of their work and the possible consequences of it not being performed, are denied the full protection of section 23 [now section 43]. That does not mean, however, that safety-related concerns which such workers raise in the context of a work refusal (albeit one which they might not be entitled to engage in) are not legitimate. Workers denied the full right to refuse work which they perceive to be unsafe remain entitled to the full protection of the Act in all other respects. Indeed, workers who engage in inherently dangerous work for the benefits of the public have a right to expect that their employees [sic] and the Ministry of Labour will be especially vigilant in ensuring that all reasonable precautions consistent with the performance of their duties are taken. Further, where a safety concern leads to a work refusal which an inspector concludes is not permitted by the statute, one would naturally expect that the inspector would use his or her powers under the Act to determine whether the concern is well-founded and, if so, to ensure that it is addressed in some appropriate way. In my view, an inspector has a duty to do so.

67. This view was echoed by Mr. Blair in Maplehurst Detention Centre, supra. … I share Mr. Blair's concern that correctional workers and others whose right to refuse is circumscribed are entitled to an extra measure of care in the investigation of their complaints. It would be a sad irony if those whose right to refuse is circumscribed because they perform essential services that are inherently dangerous, were effectively denied a proper investigation of their underlying complaint because they have no right to refuse unsafe work.

[My emphasis.]

40In this case, the first decision of Inspector Chadwick, on July 3, 2023 found that CO Foks had no right to refuse. It went on to note nonetheless that “[t]he concerns were resolved with the inspector’s assistance.” The work refusal by CO Foks followed the Employer’s having declined to initiate a search at Level 4 with ICIT in cells 17 and 18. The issues between the Employer and the Union resulted in discussions leading the Union to believe that it had an agreement with the Employer respect to the circumstances under which ICIT might be used, the use of body scanners, and searches of pipe chases. The evidence indicates that: (1) CO Foks said that he had a reasonable belief that Employer decisions with respect to the extent and type of searches deployed in response to evidence that inmates had made shanks or materials out of which shanks could be fashioned were likely to endanger him; and that (2) notwithstanding his determination that CO Foks did not have a right to refuse to work on the basis of that belief, Inspector Chadwick had followed up by assisting in bringing about what he believed to be a resolution of CO Foks’ concerns.

41Any such resolution appears to have fallen apart the next day. Disagreements between Union and Employer representatives re-emerged over the extent and type of searches to follow up on the previous day’s evidence of contraband. COs made additional discoveries of shanks and plastic shards from broken food trays. Employer and Union representatives again disagreed on the extent and type of searches that should be initiated in response. At this point, CO Schweinbenz initiated the second work refusal.

42Inspector Chadwick again met with the parties by teleconference and again determined that there was no right to refuse. By way of follow-up, this time he indicated in his report that “the concerns will be investigated as a complaint”.

43Two days later, on July 6, Inspector Hunt attended at HWDC. His report on this visit indicated that its purpose was to “follow up on health and safety concerns related to work refusals that have occurred in the workplace this week”, referring to the two reports of Inspector Chadwick discussed above. The comments in the report note measures to prevent inmates from misappropriating food trays and other materials, in response to “concerns of inmates possessing weapons made from food trays”. The report indicates that the Inspector declined to make an order. From this it can be inferred that the Inspector was satisfied that the measures discussed in his report were sufficient to address the concerns related to the work refusals in a manner compliant with the Act.

44This course of action, understood in the context of the longstanding duties of inspectors to follow up on safety-related concerns of workers raised in the context of work refusals, leads me inexorably to conclude that Inspector Hunt attended at HWDC on July 6 to, as his report puts it, “Audit Compliance with the Occupational Health and Safety Act” in response to the concerns raised by COs Foks and Schweinbenz and the Union in the context of the work refusals. He met with representatives of the Employer and the Union for that purpose. Under the Occupational Health and Safety Act, Inspector Hunt’s decision not to issue an order in response to those concerns represents a final determination of the Employer’s compliance with the Act in relation to them, with the exception of allegations of reprisal, subject to appeal to the Ontario Labour Relations Board under Section 61 of the Act. This necessarily includes compliance with Section 25(2)(h) of the Act. Such a determination would, as discussed above, also deal with any issues that might arise under the first sentence of Article 9.1 of the Collective Agreement.

45Accordingly, I find that Inspector Hunt’s decision dealt with all issues raised by the grievances related to compliance with the Occupational Health and Safety Act, except those relating to compliance with Section 50, and with all issues that could arise under the first sentence of Article 9.1 of the Collective Agreement.

46The conditions for applying issue estoppel are therefore met. This brings me to the question of whether to exercise the discretion to do so.

47In the 2024 Union Grievance decision, supra, Arbitrator MacLean considered the non-exhaustive list of factors established by the Supreme Court of Canada to guide such decisions. As in this case, Arbitrator MacLean addressed this question in the context of a union grievance challenging an occupational health and safety inspector’s decision. Arbitrator MacLean made the following observations with respect to the first five of these factors:

70… I am satisfied that none of the factors identified in Danyluk and Penner apply here while recognizing that the lists of factors set out in those cases are not exhaustive. Those factors are:

(a) The Wording of the Statute from which the Power to Issue the Administrative Order Derives. In Danyluk the ESA provided in s.6(1) that: No civil remedy of an employee against his or her employer is suspended or affected by this Act. In other words, the ESA contemplated the possibility of parallel proceedings. That is not present here but there is agreement that the parties’ collective agreement also contains measures for the protection of workers. The two schemes operate in parallel.

(b) The Purpose of the Legislation. The purpose of the legislation is to, among other things, to provide and mandate workplace systems to ensure the health and safety of workers. It 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. That objective has been thwarted.

(c) The Availability of an Appeal. There is an appeal under the OHSA available as a matter of right.

(d) The Safeguards Available to the Parties in the Administrative Procedure. In Danyluk the Court found that the expeditious procedures suitable for an ESO’s determination “may simply be inadequate to deal with complex issues of fact or law”. It also found that the ESO’s actions breached the natural justice rights of the employee. Here, 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.

(e) The Expertise of the Administrative Decision Maker. There is no suggestion that the Inspectors do not have expertise in workplace health and safety. The issues before them did not involve complex legal issues. Instead, they mostly involved an assessment of whether the workers’ health and safety was at risk in the circumstances. Under the OHSA inspectors have broad powers to carry out their duties.

These observations are pertinent to this case as well.

48The remaining two factors identified by the Supreme Court of Canada are the circumstances giving rise to the prior administrative proceedings, and the potential for injustice.

49With respect to former, in the Union Grievance decision Arbitrator MacLean observed at paragraph 72 that:

Work refusals… almost always involve considerable workplace tensions. They often happen in the dead of night and often over the telephone. In my view, 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.

I agree.

50The Union submits that what distinguishes this case from the Union Grievance case decided by Arbitrator MacLean is the final factor, that of potential unfairness. I will return to this question below.

51But before doing so, I note two things. First, all of the other factors discussed above are either neutral or weigh in favour of applying issue estoppel. As Arbitrator MacLean observed, the procedure established by the Occupational Health and Safety Act provides parties with access to expert and expeditious decision-making. The Act’s de novo appeal process responds to circumstances such as are often present in work refusals in which deference to an inspector’s decision may not be appropriate. Allowing grievance arbitration proceedings with respect to issues decided by an inspector may thwart the Act’s objective of expeditious dispute resolution.

52Second, the Employer is correct that the attempt to revisit the Inspectors’ decisions through grievance arbitration rather than through an appeal to the OLRB amounts to a collateral attack.

53In the Union Grievance case, Arbitrator MacLean wrote at paragraph 69 that:

In an appeal to the Board, the Inspector is routinely made a party to the appeal either because they are a “Director” as defined in the OHSA or because the Board makes them a party pursuant to s. 61(2). As a party, the Inspector can [sic] (and usually is) represented by counsel at the Board’s hearing. I note that there is no evidence before me to suggest that the Inspector was given notice of the hearing in this matter before me or that such notice could be given and the Inspector made a party. These circumstances involve a collateral attack on the Inspectors’ decisions.

The circumstances are the same in this case.

54On judicial review, the Divisional Court not only found this decision to be reasonable, but also appeared to agree with it, and expanded upon its underlying principles:

37… The rule against collateral attack was described by Binnie J. in Danyluk, at para. 20: “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.”

38Where 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.

39In challenging the Inspectors’ decisions, OPSEU ignored the statutory appeal mechanism. In Toronto Transit Commission v. A.T.U., Local 113, [2010] O.L.A.A. No. 467, Arbitrator Howe concluded at para. 22:

…permitting the Union to proceed with the grievance for the purpose of obtaining the relief set forth above would have the effect of allowing the Union to challenge, through the impermissible route of relitigation in a different forum, a portion of the orders made and conclusions reached by the MOL Inspectors in those proceedings, and to do an end-run around those proceedings. In order to prevent that impermissible collateral attack and abuse of process, it is necessary and appropriate to decline to hear the grievance.

40The Arbitrator in this case reached the same conclusion. His conclusion that the grievances constituted a collateral attack on the Inspectors’ decisions was reasonable.

55The rule against collateral attacks thus requires that once an MOL occupational health and safety inspector has rendered a decision, challenges to that decision must generally proceed by way of the appeal mechanism prescribed by Act.

56The Union argues that it launched the grievances in reasonable reliance on earlier Board jurisprudence allowing similar grievances to proceed, and that declining to hear all aspects of them would be unfair.

57This argument appears not to have been raised before Arbitrator MacLean in the Union Grievance case, supra. It is in any event not addressed in his reasons. But it was raised at least in general terms at the Divisional Court on judicial review. There, notwithstanding that “OPSEU argue[d] that in exercising his discretion to apply the doctrine of issue estoppel, the Arbitrator ignored OPSEU’s reasonable and legitimate expectations that the GSB would hear the grievances”, the Court concluded that Arbitrator MacLean’s decision with respect to exercising his discretion to apply issue estoppel was reasonable: OPSEU v. Ontario, supra, at paras 33 and 36.

58In support of its claim of reasonable reliance on Board precedent, the Union relies on Greenbank, supra. In Greenbank, the Union had filed both a grievance and an appeal of an occupational health and safety inspector’s decision. Arbitrator Mikus allowed the grievance to proceed.

59This ruling does not, however, speak to the issues at hand. In Greenbank the Employer did not raise the questions of issue estoppel or collateral attack. Rather, it maintained that the Ontario Labour Relations Board had exclusive jurisdiction to hear matters arising out of the Occupational Health and Safety Act. Arbitrator Mikus concluded, correctly in my view, that this Board has concurrent jurisdiction with the OLRB to hear and determine such matters, and that therefore she had no basis upon which to decline jurisdiction. But the fact that the Grievance Settlement Board has concurrent jurisdiction says nothing about whether it should exercise it in the face of objections based on issue estoppel and collateral attack. Nor do the other decisions provided to me by the Union.

60Those issues were however directly addressed in the subsequent decisions cited by the Employer. In 2010 Arbitrator Howe determined in Toronto Transit Commission, supra, that a grievance filed to challenge the decision of an inspector under the Occupational Health and Safety Act amounted to an impermissible collateral attack. That case was on all fours with the present one, in that the collective agreement imposed no material obligations beyond those of the Act and the grievance raised no issues not determined by the inspector. In 2011 the Supreme Court of Canada summarized the principles underlying the doctrines of issue estoppel and collateral attack in administrative proceedings as follows:

34At their heart, the foregoing doctrines exist to prevent unfairness by preventing “abuse of the decision-making process” (Danyluk, at para. 20; see also Garland, at para. 72, and Toronto (City), at para. 37). Their common underlying principles can be summarized as follows:

• It is in the interests of the public and the parties that the finality of a decision can be relied on (Danyluk, at para. 18; Boucher, at para. 35).

• Respect for the finality of a judicial or admin­istrative decision increases fairness and the integrity of the courts, administrative tribunals and the administration of justice; on the other hand, relitigation of issues that have been previously decided in an appropriate forum may undermine confidence in this fairness and integrity by creating inconsistent results and unnecessarily duplicative proceedings (Toronto (City), at paras. 38 and 51).

• The method of challenging the validity or cor­rectness of a judicial or administrative deci­sion should be through the appeal or judicial review mechanisms that are intended by the legislature (Boucher, at para. 35; Danyluk, at para. 74).

• Parties should not circumvent the appropriate review mechanism by using other forums to challenge a judicial or administrative decision (TeleZone, at para. 61; Boucher, at para. 35; Garland, at para. 72).

• Avoiding unnecessary relitigation avoids an unnecessary expenditure of resources (Toronto (City), at paras. 37 and 51).

[Emphasis added.]

61In this context, I do not think that applying the doctrine of issue estoppel is unfair. Its potential application and that of the doctrine of collateral attack to situations such as this one were foreseeable in light of more directly relevant decisions issued long before the grievances were filed.

62For all of these reasons, the Employer’s motion is allowed. I decline to hear all aspects of the grievances raising issues under the Occupational Health and Safety Act except those relating to compliance Section 50, or raising issues under the first sentence of Article 9.1 of the Collective Agreement.