GSB# 2010-0691; 2011-0641; 2012-0003; 2012-1283; 2013-2048; 2014-0363; 2016-1796

UNION# 2010-0234-0132; 2011-0234-0050; 2012-0234-0042; 2012-0234-0081; 2013-0234-0314; 2014-0234-0074; 2016-0234-0170

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Sampson et al)

Union

• and -

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

Employer

BEFORE

Adam Beatty

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

December 10, 2025

Decision

1There are seven grievances before me. They were filed between 2010 and 2016. At a very high level, the grievances challenge whether the Grievor was placed in the right bargaining unit and whether he was paid the correct rate of pay. The grievances also raise issues related to the correct application of Order in Council (“OIC”) 234/94 (dated February 24, 1994). The Employer brings a motion seeking to have the grievances dismissed on account of delay and/or laches.

Background

2The parties argued the Employer’s motion at a hearing on December 10, 2025. For the purposes of that motion, they agreed to the following timeline of events:

1. The parties attended before the GSB on October 16, 2017;

2. The parties agreed to adjourn the matter sine die to see if the issues might be resolved at the bargaining table;

3. The parties later executed a Collective Agreement for the period of January 1, 2018 to December 31, 2021;

4. The Collective Agreement has a signing date of May, 2020;

5. At the time of the agreement to adjourn sine die, the parties exchanged correspondence as attached;

6. The Grievor’s evidence would be that he was never advised that there was a timeline within which to bring the matter back on before the GSB;

7. The Grievor contacted the Union on September 22, 2023 to request that the proceedings be reinstated before the GSB;

8. Previous Union Counsel had retired. The Union retained present counsel on or about June 17, 2024. Counsel had to locate the file and ascertain who Counsel for the Employer was;

9. Previous Employer Counsel retired. On July 9, 2024, Union Counsel wrote to Counsel supervisor to determine which Counsel would be assigned for the Employer;

10. Present Employer Counsel was assigned July 11, 2024. Counsel advised that he was not aware of any issues regarding the case and that the Employer was reserving on any and all preliminary objections including delay. The Employer’s file had been closed and sent to storage and would need to be retrieved;

11. Emails were exchanged between Counsel. The GSB was advised by Union Counsel that the parties needed a new Arbitrator as previous Arbitrator had retired. The GSB asked the parties to agree to an arbitrator and advise the GSB;

12. On October 29, 2024 Union Counsel advised the GSB that the parties agreed to Arbitrator Beatty;

13. Dates were confirmed on November 13, 2024;

14. The first date confirmed was November 4, 2025.

Position of the Employer

3The Employer argues that these grievances should be dismissed on account of delay. The Employer notes that on October 16, 2017, the grievances were adjourned sine die on the agreement of counsel. While there was no time limit attached to the agreement to adjourn, it was clear to the parties that the adjournment was tied to the hope that these matters might be resolved in collective bargaining. The Collective Agreement that resulted from that round of bargaining was signed in May 2020.

4The Employer submits that once collective bargaining had concluded, if either party wanted to bring the grievances back on, there was an expectation that they would do so at that time. However, as set out above, the grievances were not reactivated until September 2023, approximately 3.5 years later.

5The Employer argues that the delay of three and a half years in reactivating these grievances was excessive. In addition, the Employer submits that the delay is prejudicial.

6The Employer submits that an adjournment sine die cannot mean that an adjournment can last as long as a party wants. It must have a limit, and while the Employer did not ask for the establishment of a bright line test, it argued that three and a half years must be well beyond any such line. In addition, the Employer argued that in the circumstances it was entitled to consider these grievances abandoned.

7The Employer also argued that the delay in these matters, and in particular the prejudicial effect of the delay, has been compounded by the subject matter of the grievances. As set out above, at a high level, these grievances raise issues about whether the Grievor was placed in the wrong bargaining unit and paid the wrong rate. The Employer argues that the issues raised may date back as far as the Grievor’s date of hire in 1994. The grievances may require an assessment of the specific type of work the Grievor was engaged in as late as 2010 and perhaps earlier. The grievances also raise issues related to an Order in Council (OIC) from 1993 and to legislation that has been amended a number of times since the OIC was issued.

8The Employer noted that these types of motions are decided on their specific facts. It relied on the following cases in support of its motion: OPSEU (Giorno et al) v. Ontario (Attorney General), 2025 CanLII 102381 (ON GSB); OPSEU (Patterson) v. Ontario (Ministry of Children and Youth Services), 2006 CanLII 42771 (ON GSB); OPSEU (O’Brien) v. Ontario (Ministry of Community Safety and Correctional Services), 2018 CanLII 88988 (ON GSB); and Metropolitan Separate Schools Board, [2000] O.L.R.D. No. 12.

9In Giorno et al the grievors were advised that their positions were being reclassified in June 2014. Approximately nine years later, they filed a grievance claiming that they had become aware of an impact of the reclassification that they had not been aware of before. The Employer brought a motion to dismiss the grievance on the basis of delay. In granting the motion, Arbitrator Abramsky concluded that it was reasonable to assume that any grievance about a reclassification in 2014 had been abandoned because “there was no indication for close to 9 years” that there was any dispute about that reclassification. The Arbitrator also noted that prejudice can be presumed in these kinds of circumstances, where the “passage of time is significant”.

10As set out above, the Employer argued that in this case there are multiple levels of delay. The grievances filed in 2010 raise issues related to the Grievor’s time of hire in 1994. In addition, there is the delay of almost 7 years from 2017 when these grievances were adjourned sine die until the Employer was advised that the Union was seeking to bring these matters back on.

11In Patterson, the grievor filed two job competition grievances in 1990. A hearing was scheduled at the Board in 1991 where the grievances were adjourned sine die. Nothing happened for the following 16 years, until the grievor sought to have the grievances heard. Arbitrator Abramsky found that there was a delay of sixteen years and that there was no evidence that the grievor had made any effort to move her grievances forward. Nor did the grievor provide any explanation for the delay. In the circumstances, Arbitrator Abramsky concluded that the grievances were abandoned. In reaching this conclusion, Arbitrator Abramsky quoted from the following passage of Metropolitan Separate School Board:

In the circumstances of this case, the usual prejudicial effect on any litigation of delay is present. Witnesses will be asked to remember events and their motivation in a decision-making process which tool [sic] place seven years ago. Memories decay, witnesses and documents may not be available. In addition if the applicant were ordered reinstated (presumably with full seniority) this would have a significant effect on both the other parties to this litigation and to the seniority rights held by employees which have been created by years of employment through successive collective agreements.

12Applying the above holding to the present case, the Employer argued that the Grievor sat on his hands for too long. In addition, given the potential complexity of the issues raised by these grievances, the Board should discourage grievors from sitting around for years without taking steps to move their grievances forward. Finally, the Employer submitted that allowing this case to proceed would cause significant prejudicial effects and that such prejudice can be presumed.

13Finally, the Employer relied on the decision of Arbitrator Leighton in O’Brien. The grievor in O’Brien filed one grievance in 2003 and another two in 2009. The grievances related to failed return to work processes in 2003 and 2009. The hearing started in 2010. The grievor started giving her evidence in 2011. Unfortunately the grievor became ill and was unable to continue. In 2016 the grievor sought to resume the hearing. After a further attempt at mediation, the Employer brought a motion seeking to dismiss the grievances on account of delay.

14Arbitrator Leighton noted that there was no dispute that the delay was non-culpable. She noted that there were two significant, distinct periods of delay totalling approximately ten years. There was a delay after the 2003 grievance was filed of approximately five years and another delay of approximately five years from 2011 when the grievor could not continue until 2016 when she sought to resume the hearing. Arbitrator Leighton concluded that any measure, a delay of ten years is extreme.

15Arbitrator Leighton also concluded that extreme delay results in inherent prejudice to the arbitration process. In reaching that conclusion the arbitrator agreed with the line of cases that stands for the proposition that an employer need not demonstrate actual prejudice as a result of delay.

16The Employer argued that the facts in this case were very similar to those in O’Brien and supported the conclusion that these grievances should be dismissed on account of delay. Here there has been an inordinate delay in bringing these matters back. The subject matter of the grievances was already old when these matters were first brought forward. As such, there is substantial prejudice to the Employer. Accordingly, the Employer submitted that the grievances should be dismissed.

Position of the Union

17The Union argued that the Employer’s motion should be dismissed. The Union noted that motions such as these, whether relying on laches, delay, or abandonment are fact specific. While there are a number of factors arbitrators will look at, at the end of the day, the motion falls to be determined on the facts at issue. Here, the Union submits the facts do not support the Employer’s motion.

18The Union emphasized the period of time from May 2020 to September 2023. Prior to that, the timeline establishes that there was a hearing for these grievances on October 16, 2017. At that hearing, the parties agreed to adjourn the grievances sine die to see if the issues raised in the grievances could be resolved at the bargaining table. The Union noted there is no indication that the Employer raised any timeliness concerns about the grievances at that time.

19The Union noted that the bargaining referred to in the agreement to adjourn sine die lead to a Collective Agreement that was signed in May 2020. At the time, Covid-19 had shut down wide swaths of activities, including grievance arbitrations at the GSB. In September 2023, the Grievor contacted the Union and asked to have the case reactivated.

20In considering the Employer’s motion, the Union also noted that the Grievor was not aware of any time-limits for bring these grievances back on. In addition, both counsel involved in the October 16, 2017, hearing, and the arbitrator seized of the matter at that time, had retired. While not dispositive, these factors contributed to any delay in getting this matter back before the Board.

21The Union relied on the following six arguments in support of its position that the Employer’s motion should be dismissed:

1. The grievances raise important issues for the Grievor;

2. The delay occurred at the late stage of the proceedings, after a hearing date had already taken place;

3. There is no real prejudice to the Employer;

4. There was never any clear or unequivocal indication from the Union that it wanted to abandon these grievances;

5. There was no indication from the Employer, prior to this motion, that the Employer considered the grievances to be abandoned; and

6. There was no specific time limit connected to the adjournment sine die.

22The Union relied on the following cases in support of its position: Becker Milk Co. (1978), 1978 CanLII 3436 (ON LA), 19 L.A.C. (2d) 217; Greater Niagara General Hospital and Ontario Nurses’ Association, 1981 CanLII 4449 (ON LA); OPSEU (Sidhu) and Ontario (Ministry of Community Safety and Correctional Services), 2007 CanLII 24177 (ON GSB); Schlegel Villages and Service Employees International Union, Local 1, 2015 CanLII 67643 (ON LA); The Corporation of the County of Elgin (Terrace Lodge) and Ontario Nurses’ Association, 2025 CanLII 92291 (ON LA); and MukiBaum Association and OPSEU, 2008 CanLII 28040 (ON LA).

23The Union argued that Becker Milk stands for the proposition that arbitrators will extend the time for taking a step in the grievance procedure when the arbitrator is satisfied that there are reasonable grounds for granting the extension and the extension will not substantially prejudice the other party. In order to answer those questions, Becker Milk requires consideration of the following three factors:

1. The reason for the delay given by the party responsible for the delay;

2. The length of the delay; and

3. The nature of the grievance.

24The Union argued that the central proposition in Becker Milk is that where appropriate (based on the questions set out above) the merits of grievances should be heard and that grievances should not be dismissed on a technicality.

25In Greater Niagara General Hospital, Arbitrator Schiff fleshed out the factors first set out by Arbitrator Burkett in Becker Milk. Arbitrator Schiff identified the following six factors that should be addressed when determining if an extension is appropriate:

1. The nature of the grievance;

2. Whether the delay occurred in initially launching the grievance or at some later stage;

3. Whether the Grievor was responsible for the delay;

4. The reasons for the delay;

5. The length of the delay; and

6. Whether the employer could reasonably have assumed the grievance had been abandoned.

26Applying these factors to the grievances at issue, the Union argued that the grievances raised issues of the Grievor’s pay, whether he was in the correct bargaining unit, and whether the OIC is being followed properly. The Union submitted that these were not trivial issues.

27The Union noted that the delay occurred after the grievance had been filed, and after the parties had had one hearing day. As such, the prejudicial impact of any delay is lessened. Here, unlike if the delay occurs earlier in the process, the Employer was made aware of the issues raised by the grievances and had the opportunity to marshall its evidence.

28The Union argued that there was no evidence that the Grievor was responsible for the delay. While he did not ask for the grievances to be brought back on until September 2023, the Grievor would indicate that he was never told there were specific timelines for reactivating the grievances.

29In Sidhu, the grievor filed two grievances, one in 1996 and one in 1999. They were both filed in a timely manner. The first hearing date for both grievances was in January 2004. Subsequent to the grievances being filed, the Employer destroyed certain documents related to the grievances. Arbitrator Abramsky concluded that given that the 1999 grievance was timely when filed, the Employer had been put on notice regarding the grievor’s allegations. In the circumstances, the subsequent destruction of documents did not justify the dismissal of the grievance on the basis of prejudice to the Employer.

30Conversely, in her discussion of the 1996 grievance, Arbitrator Abramsky noted that at some point prejudice can be presumed. In making that determination, the key issue is the ability of both sides to have a fair hearing. The 1996 grievance had been delayed eight years from the last hearing date. No explanation was provided for the delay. The Employer was not provided any specifics with respect to this grievance. As such, the Employer’s ability to defend these claims was found to be irreparably prejudiced.

31The Union argued that the decision in Sidhu was instructive for a number of reasons. There was no indication that any documents related to the seven grievances currently before the Board had been destroyed. The Employer in this matter was before the GSB in 2017. It had ample notice to marshal its evidence. Arbitrator Abramsky found a delay of 8 years was too long with respect to the 1996 grievance but the delay of 4.5 years in the 1999 grievance was not. The delay in this matter is shorter.

32In Schlegel Villages, Arbitrator Luborsky summarized the case law before him on the application of the doctrine of laches, before concluding that the following, non-exhaustive list, should be considered:

I. The delay must be inordinate in the circumstances;

II. In order to determine if the delay is inordinate consideration must be given to the excuse for the delay which must be reasonable and incurred in good faith with no improper motives;

III. Timing of the delay; the earlier the delay occurs the greater the likely resulting prejudice;

IV. Does the delay justify a conclusion that the delaying party acquiesced to the position taken by the opposing party on the merits of the dispute (the onus of establishing this acquiescence lies with the party seeking to rely on the doctrine of laches); and

V. The party seeking to apply the doctrine of laches must demonstrate real as opposed to notional prejudice.

33Applying this analysis to the facts of these grievances, the Union argued that the delay was not inordinate. There was no improper motive or abusive intent with respect to the delay. The delay took place late in the process, after a hearing date had already taken place. The Employer has not established that the Union acquiesced to its position on the merits of the grievances and has not established that it suffered any real prejudice. Notwithstanding that the grievances may raise issues that go back to 1994 or 2010, the parties were aware of those issues when they agreed to adjourn in October 2017 pending collective bargaining. That bargaining concluded in May 2020.

34In Schlegel Villages, Arbitrator Luborsky concluded that the actual length of the delay before him was 2.5 years. While such a delay was “regrettable” it did not warrant the “extraordinary result of prohibiting the Union” from proceeding with the grievance. The Union argued that the same conclusion should apply with respect to the seven grievances before me.

35The Union noted that in Terrace Lodge, Arbitrator Crljenica applied the framework set out in Schlegel Villages. In reviewing that framework Arbitrator Crljenica emphasized that the doctrine of laches requires consideration of the “equities as between the parties” and the “importance of the subject matter of the grievance to the grievor.” In Terrace Lodge, the Arbitrator found that the equities favoured the union, and that laches should therefore not apply, for the following reasons:

• The employer had knowledge of the grievances;

• The grievances were processed in a timely manner under the collective agreement; and

• The employer consented that the grievances be held in abeyance.

36The Union argued that these same factors applied to the current matter and that the Employer’s motion should be dismissed.

37In response to the Employer’s argument that it had been prejudiced by the passage of time; Arbitrator Crljenica held that the employer should have been alert to the possibility that the grievances could proceed to arbitration in light of the employer consenting to the grievances being held in abeyance. Arbitrator Crljenica also held prejudice associated with fading memories did not justify applying the doctrine of laches where the parties had agreed to adjourn the grievances. In those circumstances, the parties knew that the grievances would be delayed.

38Here too, the Union submitted that the Employer should have been aware that the seven grievances could come back on and proceed to arbitration. The Employer had ample opportunity to marshal its evidence. It was on notice from at least 2017 (if not before) of the issues raised by the grievances. Any alleged prejudice related to fading memories and the passage of time since 2017 is insufficient to justify applying the doctrine of laches in light of the parties agreement to adjourn these grievances sine die.

39The Union also relied on the decision of Arbitrator Crljenica in Terrace Lodge in support of its position that the onus lies with the Employer to establish that the Union abandoned the grievances at issue. In Terrace Lodge, Arbitrator Crljenica quoted from the decision of Arbitrator Knopf in Sault Area Hospitals and Canadian Auto Workers, Loc. 1120, (2003), 2003 CanLII 89508 (ON LA), 117 L.A.C. (4th) 406 where she held that abandonment of a grievance requires “unequivocal or clear evidence of a decision to relinquish rights.” The Union noted that there was no such evidence before me. Arbitrator Crljenica also held that if the employer was no longer prepared to allow the grievances to be held in abeyance it was incumbent on the employer to tell the union.

40The Union relied on the decision of Arbitrator Gray in MukiBaum Association in support of its position that if the Employer believed the seven grievances had been abandoned, it was incumbent on the Employer to advise the Union. The Union also noted that in MukiBaum Association, Arbitrator Gray concluded that in the absence of demonstrated prejudice a lengthy delay did not, in and of itself, justify dismissing a grievance without a hearing on the merits.

41Based on all of the foregoing, the Union argued that this motion should be dismissed.

Employer Reply

42In reply, the Employer argued that the issues raised by the seven grievances may not be as important to the Grievor as suggested by the Union. The Employer noted that the first of the seven grievances was filed in 2010 but did not reach the GSB until 2017. The Employer suggested that such a lengthy delay belies the Union’s argument that the grievances were particularly important to the Grievor.

43While the Employer acknowledged that Covid was an important issue in 2020 that may have contributed to a delay, it also noted that there was no evidence that Covid had any impact on these specific grievances. In addition, the Employer argued that the Province’s Correctional Facilities continued to operate throughout this period of time.

44The Employer also urged me not to lose sight of the fact that, from its perspective, the Grievor sat on his hands for a protracted period of time. The Employer also asked me to reject the Union’s argument that somehow the Employer was responsible for “checking in with the Grievor” with respect to the seven grievances despite the fact that it was the Grievor’s inaction that was largely responsible for the delay. According to the Employer, it was not obliged to advise the Union that it considered these grievances to be abandoned.

45The Employer submitted that I should reject the Union’s characterization of its motion as a technical bar. The Employer argued that the issues raised in this motion go well beyond any technicalities and address proper labour relations issues.

46The Employer also asked that I reject the Union’s argument that I cannot find inherent prejudice resulting from delay. The Employer argued that arbitrators at the GSB can presume prejudice or find inherent prejudice resulting from extended delays. Even in the absence of evidence, that type of prejudice is “real” according to the Employer.

47Finally, to the extent the Union relied on cases where grievances were held in abeyance, the Employer argued that an agreement to adjourn sine die is meaningfully different from an agreeing to hold a grievance in abeyance.

Decision

48For the reasons set out below, I am not prepared to grant the Employer’s motion. As set out in many of the cases cited above, whether grievances should be dismissed on account of delay, or laches (or abandonment), requires a fact specific analysis. At its core, this analysis requires a balancing of the grieving party’s right to have a grievance heard against the responding party’s right to a fair hearing. In determining whether a delay has rendered a hearing unfair, arbitrators tend to emphasize two main factors. First, arbitrators look at the length of the delay in order to determine if it is unreasonable in the circumstances. Second, arbitrators review whether the delay resulted in prejudice to Employer.

49The facts in this case are (obviously) unique. While there has been some delay in moving these grievances forward, and the Employer has been prejudiced to a certain degree, I am not satisfied that the delay was unreasonable or that the Employer has been prejudiced to an extent that justifies the dismissal of the grievances.

50Based on the timeline agreed to by the parties, I am satisfied that the delay at issue runs from May 2020 to September 2023. The parties agreed to adjourn these grievances in 2017 pending collective bargaining. That collective bargaining led to a collective agreement signed in May 2020. It is reasonable to conclude that when these grievances remained unresolved following the signing of the Collective Agreement in May 2020, the proverbial clock started ticking. That clock continued to run until September 2023 when the Grievor contacted the Union to ask that the grievances be brought back on.

51The additional delay from September 2023 until November 2025, when this matter was brought back on before the Board, was the result of unique circumstances. Counsel for the Employer, counsel for the Union and the Arbitrator who heard the matter in 2017 had all retired. As such, new counsel had to be assigned to the grievances. A new arbitrator had to be agreed to. Files had to be retrieved from storage. These circumstances delayed the process until November 2024 when the parties agreed to hearing dates beginning in November 2025.

52To be clear, a delay of approximately 3.5 years is not insignificant. There may be cases where a delay of this length would be unreasonable. However, given the facts of this case, it was not unreasonable in the circumstances. There were a number of factors beyond the parties’ control that extended the amount of time it took for this matter to be brought back on.

53Nor is the degree of prejudice sufficient to justify granting the Employer’s motion. In any case involving delay, there is likely to be some prejudicial effect on the “non-delaying” party’s ability to make out its case. I agree with those authorities that note that the passage of time will almost always have a deleterious effect on witnesses’ memories and that this creates a “subtle prejudicial effect”. I also agree with the Employer that this type of prejudicial effect can be inferred from the fact of the delay. Actual prejudice need not always be demonstrated.

54However, regardless of whether the prejudice is inferred or demonstrated, the question to be determined is whether the prejudice jeopardizes, or calls into question, the fairness of the hearing or outweighs the Grievor’s interest in having the grievance heard on the merits. Here the timing of the delay militates against any prejudicial effect resulting from the delay. The delay occurred later in the grievance process, after the parties had already had a hearing day. As such, the Employer was aware of the issues being raised by the grievances and had ample opportunity to marshal whatever evidence it considered relevant to those issues. There is no indication that the Employer raised any concerns regarding the timeliness of the grievances prior to the Union advising it was seeking to have the grievances brought back on in 2023.

55In balancing the parties’ respective interests, it is also worth noting that the grievances raise issues related to whether the Grievor has been placed in the correct bargaining unit and, relatedly, whether he has been compensated at the appropriate rate. These are significant issues.

56Based on all of the foregoing, I am satisfied that in the circumstances, the Grievor’s interest in having the grievances heard outweighs any prejudice caused by the 3.5 year delay between May 2017 and September 2020 in moving the grievances forward. In reaching this conclusion I am also satisfied that the prejudice faced by the Employer does not reach the level that it would call into question the fairness of the hearing process.

57Accordingly, the Employer’s motion to have the grievances dismissed without a hearing is dismissed.

58The parties are directed to contact the Board for additional hearing dates.