Ontario Public Service Employees Union (De Gryp) v. The Crown in Right of Ontario (Ministry of Children, Community and Social Services), 2026 CanLII 42830

GSB# 2024-02344

UNION# 2024-0224-0004

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (De Gryp)

Union

• and -

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

Employer

BEFORE

Kevin Banks

Arbitrator

FOR THE UNION

Ilija Dimeski Morrison Watts Hurtado Counsel

FOR THE EMPLOYER

Paul Meier Treasury Board Secretariat Legal Services Branch Senior Counsel

WRITTEN SUBMISSIONS

December 12, 2025, January 12 and January 29, 2026

Decision

Introduction

1The Employer brings a motion to strike certain paragraphs (numbered 3 to 24) in the Union’s Statement of Particulars of the grievance. It submits that particulars pre-dating November 7, 2021 should be struck on the basis of the Board’s “three-year rule”, given that the grievance was filed on November 7, 2024.

2The Union resists this motion on two grounds, namely that: (1) the three-year rule should not be applied because it is contrary to rules of natural justice; or (2) in the alternative, if the rule is applied, the particulars that the Employer seeks to strike fall within its exceptions.

3This case is being heard under the expedited procedures of Article 22.16 of the Collective Agreement.

4I provided the parties with a bottom-line decision on February 17, 2026. Reasons for that decision are set out below.

Collective Agreement Context

5Article 22.1 of the Collective Agreement states that the purpose of the grievance procedure is to have matters dealt with “as quickly as possible”. Article 22.2 provides that the Grievor and Union may file a grievance within 30 days of circumstances giving rise to a complaint or difference, or within 30 days of when those circumstances ought reasonably to have come to their attention. Untimely grievances are deemed withdrawn by Article 22.14.1.

Whether the Three-Year Rule Should be Set Aside as Contrary to Natural Justice

6The Board’s jurisprudence establishes that there is an inherent labour relations interest in having grievances brought within a reasonable time frame and that a failure to do so is prejudicial to the conduct of a fair hearing and workplace harmony. Such prejudice is generally to be presumed. As observed by Arbitrator Gee in OPSEU (Barker) v. Ontario, 2020 CanLII 20374 at paragraph 75:

Turning to the question of prejudice, I do not agree that prejudice is not to be assumed but rather must be proven by the Employer. The jurisprudence establishes that there is an inherent labour relations interest in having grievances brought within a reasonable time frame and a failure to do so is prejudicial to the conduct of a fair hearing and workplace harmony. The case of Sault College, supra, relied upon by the Employer, is a recent decision that considers the issue in the context of a grievance alleging harassment. The quote from Sault College set out at paragraph 19 above is instructive. As stated by the arbitrator, the harm caused by delay in the labour relations context has long been recognized:

37. In my view, when striking a balance, an arbitrator should also keep in mind the time honoured principle of labour relations that grievances about alleged violations of the collective agreement should be brought within a reasonable time after the matter in issue arose (see U.E. v. Canadian General Electric Co. (Davenport Works) (1952), 3 L.A.C. 980 (Ont. Arb.) (Laskin))

7This Board generally allows a party to tender evidence to show that events grieved in a timely manner were part of a pattern of harassment that began earlier than the 30-day deadline for filing a grievance. The Board has however long applied a “three-year rule” to limit how far back in time such evidence can reach, in order to avoid undue prejudice to the employer in having to investigate and respond to events not previously grieved: OPSEU (Vrantsidis) v. Ontario, 2025 CanLII 102378 (Anderson) at paragraph 19.

8The Union refers me to George Brown College of Applied Arts and Technology v Ontario Public Service Employees Union, 2016 CanLII 9122 (Bendel) for the proposition that the three-year rule is contrary to natural justice. Respectfully, I disagree with Arbitrator Bendel’s conclusion. In my view, the Supreme Court of Canada’s decision in Université du Québec v. Larocque [1993] S.C.R. 471, upon which Arbitrator Bendel places reliance, does not stand for the proposition that the audi alteram partem principle requires permitting a party to adduce any evidence relevant to the issues in dispute unless there exists a basis for excluding it that is recognized in judicial case-law or established by statute. That proposition is not consistent with the following passage from Chief Justice Lamer’s majority opinion (at page 491) in that case:

For my part, I am not prepared to say that the rejection of relevant evidence is automatically a breach of natural justice. A grievance arbitrator is in a privileged position to assess the relevance of the evidence presented to him and I do not think it is desirable for the courts, in the guise of protecting the rights of parties to be heard, to substitute their own assessment of the evidence for that of the grievance arbitrator. It may happen, however, that the rejection of relevant evidence has such an impact on the fairness of the proceeding, leading unavoidably to the conclusion that there has been a breach of natural justice.

9Nor is it consistent with the Collective Agreement in cases, such as this one, proceeding under the expedited procedures of Article 22.16. In support of the agreed upon expedited process, the parties have provided in Article 22.16.2 that “when determining the grievance by arbitration, the mediator/arbitrator may limit the nature and extent of the evidence and may impose such conditions as the mediator/arbitrator considers appropriate”.

10For good reasons, this Board should take a consistent approach to deciding questions such as the application of the three-year rule. In OPSEU (Fox et al.) v. Ontario (Human Rights Commission), 2001 CanLII 25821 (Stewart) the then Chair of the GSB stated:

As was noted by Mr. Shime, the former Chair of this Board in Toronto Area Transit Operating Authority and Amalgamated Transit Union (Blake et al), 1276/87, decisions of a panel of the Board are decisions of the Board and are not subject to reconsideration or appeal. The Grievance Settlement Board speaks in one voice, providing the parties with consistent direction and discouraging the relitigation of issues that have been ruled upon. It is only in exceptional circumstances, circumstances that extend beyond manifest error.

11For all of these reasons, I will apply the three-year rule and consider whether any of its exceptions apply.

Whether To Make an Exception to the Three-Year Rule

Availability of Exceptions to the Three-Year Rule

12The “three-year rule” allows for exceptions, including where required to ensure procedural fairness or natural justice. The Board has observed that it is in fact not so much a rule as a guideline: Vrantsidis, supra, at paragraph 19. In OPSEU (Akintunde) and Ministry of Community Safety and Correctional Services, 2019 CanLII 42398 (ON GSB), 2018 CanLII 55850 at paragraph 7, the Board identified the following criteria to determine if the Three-Year Rule should apply:

a. whether the grievor was aware of the right to challenge or grieve the earlier events which the Union seeks to rely on;

b. whether the hearing would be unduly protracted by the application of the rule, as a result of the need to present and consider voluminous evidence relating to the past events; and

c. whether extending the period of arbitral review would raise concerns from both an equitable and procedural standpoint.

13I take these factors to be indicative rather than exhaustive. In general, they assist in determining whether procedural fairness or natural justice requires extending the 3-year period despite presumed or demonstrated prejudice to the Employer’s ability to defend itself in these proceedings. The Board has made exceptions to the rule in “special” or “unique” circumstances: Ontario Public Service Employees Union (O’Brien) v. Ontario (Community Safety and Correctional Services), 2011 CanLII 10242 (ON GSB); Ontario Public Service Employees Union (Lunan) v Ontario (Labour), 2015 CanLII 36166 (ON GSB).

Summary of Relevant Allegations in the Particulars

14According to the Union’s Particulars, the Grievor worked with his current supervisor, Ms. Michelle Shipley, in 2010 and 2011 in the Employer’s Kitchener office. He then moved to the Owen Sound Office in 2011. In late 2022 or early 2023, Ms. Shipley moved to the Owen Sound Office and, once again, began supervising the Grievor.

15The Union alleges that in the Owen Sound Office Ms. Shipley carried out a pattern of unfair, targeted and unreasonable managerial actions against the Grievor. There is one alleged incident preceding the grievance by less than 30 days. The Grievor says that Ms. Shipley scheduled a staff meal following a work event at the home of a colleague who was a close friend with one of the persons responsible for an alleged prank on the Grievor carried out in 2011, described below. Further, the Particulars allege, over the 19 months prior to this Ms. Shipley unfairly targeted or harassed the Grievor in raising with him concerns about his expense reports, scheduling case file reviews, delaying her response to his request to attend a work-related event, stopping Performance Development Plans for the Grievor, failing to respond to his concerns about a particular report, and failing to discuss with him his professional learning objectives.

16The Union contends that the foregoing events amount to a resumption of a pattern of harassment that was begun in 2011.

17The Union alleges that the initial acts of harassment took place in July of 2011 when the Grievor’s co-workers falsified a judge’s requisition to the Grievor requiring him to appear in the judge’s chambers. Then, the Union alleges, co-workers falsified a young person’s presentencing report to suggest that the young person would perform oral sex on the judge. The Union alleges further that approximately one week after the initial prank incident, one of the Grievor’s co-workers posted a video of his reaction to it on Facebook. These allegations are set out in paragraphs 3 to 9 of the Particulars.

18When the Grievor complained about these events to Ms. Shipley, the Union alleges, she spoke publicly about the incident at a staff meeting, warning staff about misuse of public documents but appearing, in the Grievor’s view, to endorse the commission of office pranks, while effectively informing the entire staff in the Kitchener office that the Grievor had complained about them. These allegations are set out in paragraphs 10 to 14 of the Particulars.

19Further, the Union alleges, in the following years the Grievor was subjected to several co-workers’ isolating and making rude and unprofessional comments to him after hearing about the incident. These allegations are set out in paragraphs 15 to 21 of the Particulars.

20Finally, the Union alleges that when the Grievor complained about the conduct of his co-workers to another manager in 2017, his complaints were never followed up on. These allegations are set out in paragraphs 22 to 24 of the Particulars.

Summary of Employer Position

21The Employer insists that hearing evidence concerning the alleged 2011 prank and subsequent actions of the Grievor’s coworkers and supervisors would cause fundamental unfairness to it from both an equitable and procedural point of view. It contends that the alleged event is so old and has “lain dormant” for so long that it would cause undue prejudice to the Employer in having to investigate and respond. For example, the Employer submits, it would be required to locate old meeting minutes to test assertions by the Grievor that could have been made over a decade ago, to locate alleged 2011 Facebook posts that were never provided to management by the Grievor or anyone else, and to attempt to call witnesses who have retired and, in any event, whose memories have faded with the passage of time. In addition to Vrantsidis, Barker, Akintunde, all cited above, the Employer refers me to OPSEU (Barnard et al.) v. Ontario, 2024 CanLII 40081 (Herlich).

Summary of Union Position

22The Union maintains that in order to properly understand the actions that form the basis of the grievance, it is necessary to consider the origins of the alleged pattern of harassment, even though it was interrupted for a period of time. The Union argues that it is impossible to fully appreciate the effects of Ms. Shipley’s more recent actions without understanding the dynamic that was established early in their relationship, and the consequences of her actions on the Grievor’s life and career.

23The Union makes no claim that the Grievor was not aware of his right to grieve these incidents. Rather, it maintains that in 2011, the time of its first set of contested particulars, the Grievor was in a precarious work situation and feared reprisal. Specifically, the Union says that: (1) when the Grievor first raised his concerns about a prank played on him by colleagues at work in 2011, his supervisor did not investigate the incident, but rather made a statement that made it clear to the rest of the staff in his office that he had reported the incident; (2) at the time he was on a temporary contract and working to secure permanent employment; and (3) the public humiliation and intimidation that the Grievor experienced during the prank incident made him rationally fearful of pursuing a grievance, which would be a public process involving people who had harassed him, and which he believed would further isolate him at work.

24The Union maintains that this course of conduct amounted to bullying and intimidation designed to dissuade him from pursuing his complaint further, and that the Employer should not be able to benefit from that behaviour in having evidence of his alleged harassment excluded.

25Finally, with regard to effects on the length of the hearing and equitable and procedural concerns, the Union says that it is seeking only to introduce “a small set of evidence related to the actions of only a few individuals”; that the primary witnesses for most of the alleged conduct are the Grievor himself and his supervisor, Ms. Michelle Shipley, both of whom will testify regardless; and that while some additional evidence may be necessary, through other witnesses, the vast majority of evidence will focus on the initial incident of harassment and the subsequent staff meeting.

26Union maintains that this case is analogous to the situations in Lunan and O’Brien, cited above, in which the Board made exceptions to the three-year rule. The Union submits that this case, like those two, involves a limited set of events separated by a period of years from a pattern of alleged harassment falling within the three-year rule that the earlier events are key to understanding.

Employer Reply

27The Employer responds that the Grievor’s allegations are simply that Ms. Shipley mishandled management’s response when addressing staff about the alleged “prank” at the next staff meeting, and do not support a conclusion that Ms. Shipley would subject the Grievor to repercussions if the Grievor filed a grievance.

28Further, the Employer submits, the Grievor never prepared any kind of report or raised any kind of complaint against any member of management either around the time of the alleged “prank” in July of 2011, or later when he became a permanent employee in November of 2011, or even when Ms. Shipley became his manager in the Owen Sound Office, in April of 2023. Rather, the Employer notes, the Grievor only raised his complaint about Ms. Shipley after she had raised issues about expense claims that he had submitted in September and October of 2024.

Decision

29The particulars challenged by the Employer concern four sets of events:

• An alleged prank in 2011 by the Grievor’s coworkers (paragraphs 3 to 9)

• Ms. Shipley’s response to it in her capacity as his supervisor (paragraphs 10 to 14);

• Alleged disparaging and ostracizing statements about the Grievor by his former coworkers in the Kitchener office, in reprisal for his having reported the prank to Ms. Shipley, during the period between 2013 and 2017 (paragraphs 15 to 21).

• The alleged failure of the Grievor’s supervisor, Mr. Pigozzo, in 2017 to take action in response to the Grievor’s report to him of the above (paragraphs 22 to 24).

30The matters that form the basis of the grievance are alleged actions by Ms. Shipley during her time as manager at the Owen Sound office. The Union advances the challenged particulars to show the origins of an alleged pattern of action by Ms. Shipley, and why and how her actions have negatively affected the Grievor.

31Given the basis of the grievance, I can see no justification for extending the three-year rule to allow evidence for the purpose of proving alleged harassment by the Grievor’s coworkers. There is nothing in the Particulars suggesting that Ms. Shipley had any active participation in the alleged prank. Nor is there any suggestion that she had any knowledge of or participation in the alleged ostracizing or disparaging comments of colleagues in subsequent years. Proof of allegations against the Grievor’s coworkers is not necessary to show the origins of the more recent pattern of alleged action by Ms. Shipley. Nor is it particularly relevant. For that purpose, evidence of her response to any concerns that he raised with her about the conduct of his colleagues would be sufficient.

32Further, Mr. De Gryp could have grieved the Employer’s alleged failure to prevent or act in response to the prank long ago. The Union says that he sought to avoid isolation and criticism from his coworkers, including by moving from the Kitchener to the Owen Sound Office. I might be able to infer from this that, as the Union submits, the public humiliation and intimidation that the Grievor experienced during the prank incident made him rationally fearful of pursuing a grievance involving his coworkers. But these things cannot account for a 13-year delay. By 2013 he had been at another office for about two years when he became aware that his former coworkers in the Kitchener office were allegedly disparaging him in reprisal for reporting the 2011 prank. He had a new supervisor. Yet he did not make a report to management or file a grievance. He could have grieved a failure by the Employer to respond adequately to their disparaging remarks, and to the prank incident itself, as a pattern of conduct. Further, he did not do so on later occasions when, he alleges, his co-workers repeated similar behaviour.

33Evidence concerning the alleged conduct of the Grievor’s co-workers would require hearing from several witnesses whose memories may well have faded and some of whom the Employer indicates have retired. The Employer has raised concrete concerns about its ability to effectively respond. These add to the presumption of prejudice recognized by the Board in Barker, cited above.

34I have concluded that it is simply too late now to seek to grieve and pursue a remedy for any harms flowing directly from the alleged actions of the Grievor’s coworkers.

35The same considerations apply to the allegations that Mr. Pigozzo failed in 2017 to investigate their conduct.

36That leaves the allegations concerning Ms. Shipley’s response to the Grievor’s 2011 complaint, which are set out in paragraphs 10 to 14.

37I cannot see in the Particulars before me a basis upon which to conclude that the Grievor was prevented from or otherwise justified in not filing a grievance concerning the conduct of Ms. Shipley until November of 2024. This matter, like the behaviour of his coworkers, could have been raised once the Grievor was in a permanent position in the Owen Sound office, if not sooner.

38On the other hand, hearing evidence from the Grievor and from Ms. Shipley on how and why she responded to the Grievor’s report to her of the prank incident would not require voluminous evidence nor unduly extend the hearing. Both will be giving evidence in any event. Given the interruption in Ms. Shipley’s supervision of the Grievor of about 12 years, I am inclined to allow the Union to seek to prove those particulars on the basis that they are arguably relevant to establishing the origins of the alleged pattern of action by Ms. Shipley in 2023 and 2024, and why and how those actions have allegedly negatively affected the Grievor. In this limited respect, this case is analogous to Lunan, supra, in which Arbitrator Leighton allowed the Union to present evidence of an incident involving comments made by a co-worker 8 years prior to the date of the grievance, in support of a discrimination grievance. In that case, Arbitrator Leighton concluded that whether the evidence in question was relevant or necessary was better decided during the hearing.

Disposition

39The motion is allowed in part. Paragraphs 3 to 9 and 15 to 24 of the Particulars are struck. Nonetheless, the Union may tender evidence that the Grievor reported matters described in paragraphs 3 to 9 to Ms. Shipley, in seeking to prove the allegations set out in paragraphs 10 to 14 of the Particulars.