GSB# 2020-0593; 2021-0220

UNION# 2020-0369-0010; 2020-0369-0029

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Bonnett)

Union

• and -

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

Employer

BEFORE

Nimal Dissanayake Arbitrator

FOR THE UNION

Mae J. Nam Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Jordanna Lewis Treasury Board Secretariat Labour Practice Group Counsel

HEARING

June 13, 2025

Decision

1The Board is seized with two grievances dated June 24, 2019 and June 25, 2020 filed by Ms. Heather Bonnett (grievor) who at the time was employed at the Central North Correctional Centre as an Administrative Assistant. The grievances are similarly worded and allege violations of "articles 2, 3 and 9 of the Collective Agreement, and the Respectful Workplace Policy and any other relevant article, law or statute, by failing to provide me a workplace free from harassment and discrimination."

2This decision determines a preliminary motion by the employer relying on the principle of the sanctity of grievance settlements. (hereinafter "sanctity principle"). Reference was made to a previous grievance filed by the grievor which was settled by Minutes of Settlement (MOS). The employer's primary position is that the grievances presently before the board should be dismissed outright as being contrary to the sanctity principle. In the alternative, counsel submitted that the Board should strike any and all references in the union's particulars to matters settled under the prior MOS, and direct that the union is not allowed to lead any evidence relating to those settled matters.

3The employer relied on the "Release" clause in the prior MOS at paragraph 3. It releases the employer … "from any and all actions, causes of action, grievances, claims and demands of every nature and kind directly or indirectly to and arising out of the circumstances giving rise to the grievance, up to the date of signing the Memorandum of Settlement, including but not limited to any and all claims under the Employers' Workplace Discrimination and Harassment Policy, the Ontario Human Rights Code, the Public Service Act of Ontario, the Occupational Health and Safety Act, the Labour Relations Act, the Employment Standards Act and the Common Law."

4Counsel also relied on paragraph 6 of the MOS wherein the grievor agrees that she has "voluntarily entered into this settlement and is fully informed of and understands the consequences of this settlement", and paragraph 7 which provides "The parties agree that this settlement is not an admission or concession of liability, wrongdoing and expressly deny any liability or wrongdoing".

EMPLOYER SUBMISSIONS

5Counsel submitted that it is well established in case law that as a matter of good labour relations policy, parties to a settlement must be able to rely on any and all terms agreed to in a MOS. Counsel stated that the previously settled grievance was about an anonymous and unknown person harassing the grievor at the workplace. It was alleged that the employer by not properly investigating or taking appropriate action, failed to provide the grievor a safe workplace in violation of the collective agreement and Ontario Health and Safety Act.

6Counsel submitted that the allegations in the present grievances are identical. Although the grievor alleges that she received a new harassing message, she does not identify a "new harasser". It is undisputed that the grievor nor the employer knew who the alleged harasser was in the settled grievance or the present grievances.

7Counsel pointed out that the union's particulars state that when the grievor signed the MOS on May 27, 2018 she believed that despite the settlement the employer would proceed to investigate the alleged harassment and take action to ensure that the harassment will not continue. She submitted that the grievor had union representation and the MOS itself explicitly states that she understood the consequences of the settlement, and voluntarily signed it with that knowledge. It was submitted that in any event what matters is not what the grievor believed, but what has been agreed to in the MOS. The MOS explicitly stated that the grievance is withdrawn.

8Counsel stated that the employer made a lump sum monetary payment to the grievor as part of the MOS. Having received that payment, the grievor filed the instant grievances shortly thereafter. Counsel submitted that this is a clear case of the grievor attempting to re-litigate matters previously settled. The Board was urged to dismiss the grievances as being contrary to the sanctity principle.

9Counsel emphasized that the MOS releases the employer from "any and all actions giving rise to the grievance". In the instant grievances the matters the grievor is seeking to litigate are the very same allegations made and settled in the MOS. That is, that the employer failed to properly investigate and take action when the grievor complained about an unknown person harassing her at the workplace. Counsel submitted that when a grievance alleging harassment is settled, the employer has no legal obligation to investigate that alleged harassment. As she put it, the MOS means "those matters are over".

10With respect to the employer's alternate argument employer counsel pointed out that the union's particulars consist of 154 paragraphs. Counsel submitted that if the Board does not uphold the employer's primary position, for the same reasons she presented in support of the primary position, the Board should strike the following from the union's particulars as being contrary to the sanctity principle: Paragraphs 5 to 37, 47, 63, 72, 95, 152, 154. She submitted that those paragraphs are exclusively about matters that were resolved. The Board should direct that no evidence will be allowed relating to those. Counsel relied on Re Hawke 2007-2388 (Leighton); Re Kyba 2016-2013 (Dissanayake) CLAS90 and Re Greco 2014-2593 (Dissanayake) in support of the alternate position.

UNION SUBMISSIONS

11Union counsel agreed that the sanctity principle is an important principle that should be upheld. However, in applying that principle, it is necessary to carefully read the language the parties agreed to in the MOS. Counsel referred to the following statement in Ontario Power Generation 2012 CanLII 81972 (Ont) (Surdikowski):

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

12Union counsel pointed out that when employer counsel read out and relied on the release clause in the MOS, she omitted key words in that clause. While the clause releases the employer from any and all actions, causes, grievances etc., the parties have explicitly put a time-limit on what is released. The actions, causes, grievances released are those "arising out of the circumstances" giving rise to the grievance "up to the date of signing of the Memorandum of Settlement". Therefore, the parties only agreed to release claims based on circumstances that occurred up to the time the MOS was signed.

13Counsel pointed out that it is undisputed that the circumstances that gave rise to the instant grievances took place on June 27, 2019, when the grievor received a harassing message. That is the incident that gave rise to the grievance before the board, and it clearly post-dates the MOS signing date. Therefore, the release clause does not apply to those circumstances.

14Counsel submitted that the decision in Re Kyba (supra) is distinguishable. There the subsequent grievance did not allege a fresh violation. The union was attempting to rely on the allegations previously grieved and resolved. There was no explicit time-limit in the release clauses in the MOS in any of the cases the employer relied on. In the present case there is a clear time-limit.

15Counsel submitted that the only allegation grieved in the instant grievances is the post MOS violation. The union is relying on facts alleged in the prior grievance only to provide the context or pattern of similar harassment of the grievor in the past. It is offered by way of background to assist the Board to understand the present allegation. The union has no intention of proving any allegation other than the post MOS harassment. Nor will it seek any remedy with respect to anything other than the fresh violation. The only facts relied on by the union in the present proceeding are post-MOS facts, which are not captured by the release clause in the MOS.

16In reply, employer counsel agreed that despite the MOS, the employer had continuing obligations under OHSA to provide the grievor a safe working environment. However, that does not entitle the union to relitigate matters settled. Counsel disagreed that the decisions she relied on are distinguishable. She stated, that in Re Kyba the Board dismissed the grievance in those circumstances.

17Citing Ontario Power Generation, (supra), counsel submitted that there is another reason to dismiss the grievance. In that decision arbitrator Surdikowski stated that the language in a collective agreement ought not be given its plain and ordinary meaning if that would lead to an absurd outcome. Here, if the Board agrees with the union's interpretation, that will lead to the absurd outcome of relitigating settled matters contrary to the sanctity principle.

18Finally, employer counsel relied on Re Greco (supra) to argue that in the absence of exceptional circumstances, facts relating to a settled grievance ought not be allowed for purposes of providing a background, or context. Therefore the employer's alternate position objecting to evidence relating to the settled grievance should be upheld.

DECISION

19I first turn to the employer's primary position that the prior MOS is a complete answer, which makes the instant grievances inarbitrable. I have no hesitation concluding that in this case that position is not sustainable. Where there is disagreement between the parties as to the scope or meaning of any terms in a MOS the arbitrator's task is to try to ascertain the intention of the parties based on the language used in the MOS. It is no different than when interpreting provisions in a collective agreement. The intention of the parties is paramount.

20It is unnecessary to review the extensive and consistent authorities that the principle of sanctity of grievance settlements must be strictly applied, subject to exceptions in very limited extreme circumstances. The arbitral approach to interpretation of agreements between unions and employers are summarised in Ontario Power Generation (supra).

21In my view, even in the absence of a release clause, it must be presumed that once a certain matter is settled, the parties intend that the same matter may not be re-litigated in the future. That is simply common sense. In other words, unless the parties have included a language indicating that the settled matter or some aspect of it may be re-litigated, generally or before a particular forum, or there is a legislative or other legal right, the presumption must be in favour of no re-litigation.

22In the instant case, there is no doubt that there is an extensive and broad release clause, as employer counsel correctly pointed out. However, that release is explicitly made subject to a time limit. The parties have agreed that subsequent grievances precluded by the release are only those "directly or indirectly directed to and arising out of the circumstances giving rise to the grievance, up to the date of signing of the Memorandum of Settlement". Even if it is accepted that the matters settled previously by the MOS and the matters grieved in the instant grievances are related and arise out of the same circumstances, as employer argued, for the release clause to apply it is necessary to see whether the matters grieved herein meets the time-limit "up to the date of signing" the MOS the parties have agreed to in the MOS. The union was very clear that the grievance is only about the harassing message the grievor received after that date the MOS was signed. The incident in question and the filing of the grievance, post dated the date of signing. Thus it is outside the time limit the parties had agreed to in the MOS.

23The only grounds the employer counsel argued as to why effect should not be given to that explicit agreement on a time-limit was that extreme circumstances existed that justifies my exercising discretion to do so. Citing Ontario Power Generation, she argued that an arbitrator may refuse to apply a release clause if doing so would lead to an absurd result. She submitted that applying the release clause in this case would lead to the absurd result of permitting the union to relitigate a matter already settled.

24I find no merit in that reasoning. As I pointed out at the outset in this decision, the task for me in determining the motion is to attempt to ascertain, as best as I can, the intention of the parties. In this particular MOS my task of searching for the intention is very easy. There is no interpretation of language required because the parties have clearly and in simple language stated that what is released are only grievances related to settled matters that arose up to the date of signing of the MOS. The employer did not dispute that the incident the union relies on to allege violations in the instant grievance post-dates the date of signing of the MOS. Therefore that is not captured by the release clause and the employer's primary position is not sustained.

25The alternate position of the employer requires a determination whether the union should be allowed to lead evidence about matters which were part of the settled grievance as context and background. The union argued that the context and background will be of assistance to the arbitrator in dealing with the new incident being grieved. The union is not seeking to litigate anything other than its grievance that the employer violated the collective agreement and OHSA arising out of the post MOS incident of the grievor receiving a harassing message. It is not seeking to prove any of the allegations which were part of the grievance settled. The evidence will only be offered only to show the background of a pattern of similar harassment allegations.

26Union counsel referred to p.8 of Re Kyba (supra) and pointed out that there the Board, in refusing to admit evidence relating to settled grievances commented that the union there had not made "a fresh complaint". In the instant grievance there clearly is a fresh complaint. However, in Re Kyba the union was attempting to lead evidence relating to settled matters not merely as background or context, as the union does here. In those circumstances, not surprisingly, the Board in not allowing that evidence observed that there was no fresh complaint. Here, I have already ruled that the union is entitled to lead evidence to prove the fresh complaint, despite the MOS that settled prior similar complaints. Therefore, there is no inconsistency.

27I conclude that in the circumstances of these parties, the background and the context can only result in failure to apply the cardinal principle of sanctity. It serves no purpose. Nor will it in anyway assist in my task of applying the release clause to the facts relating to the post MOS incident. It must be remembered that in the MOS the settlement only involved allegations by the union. The MOS did not acknowledge any violations. Nor was liability admitted in any manner. Therefore, information relating to settled grievances with similar allegations can be of no assistance or relevance to me.

28The fact that similar grievances were filed and settled is not in dispute. I find that any further details of those settled matters would be contrary to the principle of sanctity in the absence of any special circumstances. There are no special circumstances that would cause me to exercise my discretion to not apply the principle of sanctity. Therefore, the union is not permitted to lead evidence relating to the prior grievances which were settled.

29In summary, (1) The employer's preliminary position is denied. The union is permitted to proceed with the arbitration as it relates to the violations alleged in the instant grievance; (2) The employer's alternate position is upheld. The paragraphs in the union's particulars objected to by the employer (para. 10) are struck from the record. The union is not permitted to lead any evidence relating to allegations made in the prior grievance filed and settled, including those paragraphs.

30I remain seized.