GSB# 2022-0590

UNION# 2022-0128-0137

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Semenuk)

Union

• and -

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

Employer

BEFORE

Barry Stephens

Arbitrator

FOR THE UNION

Ed Holmes Ryder Wright Holmes Bryden Nam LLP Counsel

FOR THE EMPLOYER

Joohyung Lee Treasury Board Secretariat Legal Services Branch Counsel

HEARING

January 7, 2026

Decision

Introduction

1The grievor is a Correctional Officer (CO) who was terminated on March 31, 2022. In a decision issued on March 4, 2025, I upheld the discharge grievance. This award deals with a motion by the union with respect to the payment of a portion of the remedial compensation arising from the award on the merits.

Union Submissions

2Paragraph 60 of the award on the merits reads as follows:

The grievor is reinstated effective the date of this award and is entitled to full compensation under the collective agreement retroactive to the date of termination, less the three-day suspension and any income earned in mitigation. I remit the issue of compensation and the details of his return to work to the parties for discussion and resolution but remain seized with respect to any issues arising from the implementation of this award. I note in particular that the employer reserved the right, should the grievor be reinstated, to pursue the issue of the grievor’s duty to mitigate his damages, and I confirm that both parties will be free to make submissions on that issue should they be unable to resolve the issue of compensation.

The union acknowledged the grievor had been reinstated to the payroll after the award on the merits, but some issues of compensation remain outstanding more than a year later, and further litigation may be necessary in order to determine the full remedy. The union now seeks an order to release payment to the grievor of a portion of the compensation. The union submitted that the order sought was not one for interim compensation but was more properly seen as a procedural step in enforcing issues of implementation arising from the award on the merits.

3The union set out the calculations for the grievor’s potential losses. The gross figure for lost wages was calculated at just under $175,000, accounting for mitigation. The union also calculated that this figure would have to be adjusted upward to account for such factors as vacation pay, statutory holidays, missed overtime opportunities, interest, pension adjustments, the repayment of healthcare costs that should have been covered by the collective agreement benefits, a claim for damages, a claim for a tax gross-up and claims associated with the grievor’s subsequent reinstatement to EMDC. At the same time, compensation will also be affected by issues raised by the employer, including the submission that the grievor was medically unfit to work during part of the claim period and that he failed to properly mitigate his damages.

4The union argued that the framing of the motion was important, arguing the motion should not be considered an application for interim relief but a motion for partial payment of compensation, which amounted to a procedural step in the resolution of outstanding compensation issues. The actual dispute between the parties, i.e. whether the grievor was terminated with just cause, was decided by the award on the merits. The union submitted there was no further process required to ‘dispose of the grievance’ given that the issues that led to the grievor’s termination have been fully addressed and there is no balance of harm or convenience to be weighed, as is featured in the jurisprudence associated with applications for interim relief. The union submitted this becomes clear when one looks at the concerns reflected in the cases relied upon by the employer in that those cases all dealt with circumstances in which the merits of the case were yet to be decided and there was a risk of prejudging or in some way disposing of the issues in dispute before they were litigated. The union submitted there is no such risk in the determination of the procedural question as to when the grievor should be paid a portion of the total compensation to which he is entitled.

5The union pointed out that, even in the jurisprudence with respect to interim relief, some of the cases allow for the possibility of an overpayment. There was less risk of an overpayment in this case where it is clear that substantial compensation would have to be paid. The union asserted that, because this was not an application for interim relief there was no need for the union to take the formal steps set out in the GSB’s interim relief policy relied upon by the employer.

6In this case, the union argued, it was seeking implementation of a decision already rendered. The remaining differences between the parties require a calculation that includes the various heads of compensation that arise from the grievor’s rights under the collective agreement, arising from the lengthy litigation process. Some of those issues may require litigation and further rulings. The process might well be quite lengthy, especially when the scheduling realities are factored in. The union argued the balance of harm or inconvenience favours the motion, because the effect of delaying payment is only to continue to inflict unnecessary financial harm on the grievor. This continued harm to the grievor can be addressed by a procedural order to award a sum of money as partial payment to the grievor to compensate for his losses while the parties continue to calculate the final figures. The union argued the grievor should be entitled to