CITATION: Ontario Public Service Employees Union v. Ontario (Solicitor General), 2025 ONSC 1801
DIVISIONAL COURT FILE NO.: 345/24 DATE: 2025/03/21
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Backhouse, Faieta, Ryan Bell JJ.
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION/SYNDICAT DES EMPLOYÉS DE LA FONCTION PUBLIQUE DE L’ONTARIO
Applicant
David Wright and Nancy Dhugga, for the Applicant
– and –
THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF THE SOLICITOR GENERAL)
Paul Meier and Dina Zonoozi, for the Respondent
Respondent
HEARD at Toronto: February 3, 2025
REASONS FOR DECISION
RYAN BELL J.
Overview
[1] On this application for judicial review, the Ontario Public Service Employees Union/Syndicat des Employés de la Fonction Publique de l’Ontario seeks an order quashing a decision of the Grievance Settlement Board dated May 17, 2024 (the “GSB Decision”). In the GSB Decision, Arbitrator McLean declined to hear four grievances about health and safety concerns at the Ontario Correctional Institute leading up to and during a COVID-19 outbreak. The Arbitrator ruled the grievances were barred based on the doctrines of issue estoppel and collateral attack. OPSEU argues the GSB Decision is unreasonable.
[2] For the following reasons, I would dismiss the application for judicial review.
Statutory Context
[3] The Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (OHSA) is “a remedial public welfare statute intended to guarantee a minimum level of protection for the health and safety of workers”: Ontario (Ministry of Labour) v. Hamilton (City), 2002 16893 (ON CA), at para. 16. Accordingly, the OHSA is to be “generously interpreted in a manner that is in keeping with the purpose and objectives of the legislative scheme”: Blue Mountain Resorts Ltd. v. Bok, 2013 ONCA 75, at para. 24, citing Hamilton (City), at para. 16.
[4] Under the OHSA, Ministry of Labour inspectors have broad enforcement powers that include investigating employers in response to worker or union health and safety complaints, work refusals, occupational illnesses, and other health and safety related events in the workplace: OHSA, s. 54(1). Where an inspector finds that a provision of the OHSA or the regulations is being contravened, the inspector may order the contravener to comply with the provision: OHSA, s. 57(1).
[5] Employers or unions (in a unionized workplace) who are “aggrieved by an order made by an inspector” may appeal to the Ontario Labour Relations Board within 30 days after the order is made: OHSA, 61(1). For purposes of an appeal to the OLRB, an order of an inspector “includes any order or decision made or given or the imposition of any terms or conditions…or the refusal to make an order or decision by an inspector”: OHSA, 61(5).
[6] The appeal hearing before the OLRB is a hearing de novo; that is, the OLRB is required to “give full opportunity to the parties to present their evidence and to make their submissions”: OHSA, s. 61(3.6).
The Inspectors’ Decisions
[7] In each of the four grievances, OPSEU, believing that a work requirement was unsafe in light of COVID-19, had sought an order against the Employer from an inspector under the OHSA.
[8] In the first matter – referred to by the parties as the “Sick Inmates” matter – OPSEU alleged that the Employer had failed to take every precaution necessary to protect the employees by providing them with personal protective equipment (PPE) when inmates presented with “influenza-like” illness symptoms. On April 14, 2020, a correctional officer was advised that four inmates had reported flu-like symptoms and had been sent to the health centre at the institution for assessment. They were returned to the dorm and isolated as a precaution. The correctional officer expressed concern about entering the dorm to do his work and requested PPE (a mask) to protect himself against possible COVID-19 exposure. The Employer declined to provide a mask because the health centre had cleared the inmates as their symptoms were not consistent with COVID-19. The Inspector found that the correctional officers did not have the right to refuse work over the absence of masks unless a case of COVID-19 was confirmed.
[9] In the second matter – referred to by the parties as the “Failure to Inform” matter – OPSEU was concerned that the Employer was not providing it with appropriate and required information regarding a hazard in the workplace which OPSEU asserted it was entitled to under s. 25(2)(a) of the OHSA, including daily updates as to the number of positive COVID-19 tests in the workplace. On April 20, 2020, the Inspector held a call with Peel Public Health, the Employer, and the OPSEU representative, at which time the COVID-19 testing results were shared with OPSEU. The Inspector determined that no further action was required at that time by the Ministry of Labour at the time regarding the complaint.
[10] The third matter – referred to by the parties as the “Inmate Transfers” matter – related to a work refusal by correctional officers with respect to the Employer’s failure to provide PPE (masks) to correctional officers engaged in the transfer of inmates on April 6, 2020. The Employer refused to provide masks because the inmates had been cleared by the institution’s health care department to be transferred. The Inspector found that the work refusal did not meet the requirements of the OHSA. The Inspector determined that “the Employer gives out face masks to the workers when there is a case of COVID-19 in the workplace” and concluded that “[t]his work refusal does not meet the requirements of Section 43.3 of the Occupational Health and Safety Act because there are no know[n] case[s] of Covid-19 in the workplace.”
[11] The fourth matter – referred to by the parties as the “Incomplete Notice of Occupational Disease” – concerned an alleged failure by the Employer to comply with s. 52(2) of the OHSA, which requires the Employer to notify the Joint Health and Safety Committee of details when an employee has contracted an occupational illness. The Inspector’s report stated that the investigation was ongoing and that management “advised a proposed protocol for release of information, including the names of employees, is being discussed corporately with OPSEU” and that “[m]anagement are to wait until this protocol is finalized before providing the names of any employees are provided [sic] in the notices of occupational illnesses.”
The GSB Decision
[12] OPSEU did not appeal the Inspectors’ decisions. Instead, OPSEU filed a grievance in each of the four matters, which alleged violations of the collective agreement and the OHSA. On its motion to dismiss based on issue estoppel, abuse of process, and/or collateral attack, the Employer argued that once OPSEU “chose the OHSA inspector route, they should be precluded from pursuing the grievance arbitration route” and “if the Union and the grievors were dissatisfied with an Inspector’s decision, the appropriate course of action was for them to appeal to the Ontario Labour Relations Board”: GSB Decision, at para. 3.
[13] OPSEU argued that it should not be precluded from having its grievances arbitrated. There was no abuse of process because, given that an appeal before the OLRB proceeds as a hearing de novo, all the evidence and arguments before the Arbitrator would be essentially the same as on appeal to the OLRB. In other words, the Employer was in no different position in the grievance arbitrations than if OPSEU had appealed the Inspectors’ decisions to the OLRB: GSB Decision, at para. 22.
[14] The three preconditions of issue estoppel are: (i) whether the same question has been decided; (ii) whether the earlier decision was final; and (iii) whether the parties, or their privies were the same in both proceedings: Angle v. Minister of National Revenue, 1974 168 (SCC), [1975] 2 S.C.R. 248, at p. 254; British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, at para. 27.
[15] The Arbitrator determined that the requirements for the application of the doctrine of issue estoppel were met in this case. The Arbitrator found that because OPSEU did not file an application to the OLRB to appeal the Inspectors’ decisions, although it had a right to do so, “[t]hat makes the Inspectors’ decisions final in these circumstances”: GSB Decision, at para. 59.
[16] The Arbitrator also found that it was “clear that the parties are the same”: GSB Decision, at para. 60. The parties before the Inspectors were OPSEU and the Employer and, “[w]hile it might be said that the individual employees were the parties before the Inspectors, the Union acts and acted on their behalf”: GSB Decision, at para. 60. The parties before the Arbitrator were also OPSEU and the Employer.
[17] On the issue of whether the questions before him were the same as those before the Inspectors, the Arbitrator found “there is no dispute (with one possible exception) that the questions before me are the same as before the Inspectors”, noting that the grievances before him involved the same people and circumstances: GSB Decision, at para. 61.[^1]
[18] Having determined that the conditions were present for the application of the doctrine of issue estoppel, the Arbitrator considered whether to exercise his discretion to apply the doctrine and dismiss the grievances: GSB Decision, at para. 62. There was no suggestion before the Arbitrator that the proceedings before the Inspectors were unfair – the parties had notice of the case to be met and were given an opportunity to respond: GSB Decision, at para. 64.
[19] On the issue of whether it would be unfair to use the results of the Inspector processes to preclude the arbitration of the four grievances, the Arbitrator determined that “[t]he purposes and the stakes of the two proceedings are essentially identical; to ensure worker health and safety” and that “[i]f they had appealed the Inspectors’ decisions to the Board, they would have likely ended up with a hearing process very similar to that as before the GSB”: GSB Decision, at para. 66. On the other hand, “by grieving and then ultimately referring the matter to arbitration…the Union likely ended up with a much less quick process”: GSB Decision, at para. 67. The Arbitrator concluded:
In these circumstances there is little unfairness to the Union and its members to, having chosen the Inspector route to deal with their health and safety concerns, require them to follow that process through rather than to choose a different process: the grievance and arbitration procedure: GSB Decision, at para. 68.
[20] Finally, the Arbitrator found that the process chosen by OPSEU amounted to a collateral attack on the Inspectors’ decisions. The Arbitrator noted that in an appeal to the OLRB, the Inspector is routinely made a party to the appeal and that, as a party, the Inspector can be represented by counsel at the OLRB hearing: GSB Decision, at para. 69.
Issues
[21] The parties agree that the standard of review is reasonableness. To determine whether the decision is reasonable, the reviewing court asks whether the decision bears the hallmarks of reasonableness – justification, transparency, and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 99.
[22] OPSEU argues the GSB Decision is unreasonable because (i) the Arbitrator misapplied the test for issue estoppel; (ii) the Arbitrator failed to consider and weigh relevant factors in determining whether it would be unjust to apply issue estoppel; and (iii) the Arbitrator erroneously found the grievances were collateral attacks on the Inspectors’ decisions. The Employer argues the GSB Decision invites a high degree of deference and bears the hallmarks of reasonableness – justification, transparency, and intelligibility.
The Reasonableness of the GSB Decision
[23] The Arbitrator correctly identified and applied the two-part test for issue estoppel. The Arbitrator first considered whether the three preconditions for issue estoppel were met; after concluding that the preconditions were met, the Arbitrator then considered whether he should exercise his discretion to decline the application of issue estoppel: Angle; Figliola; Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44; Penner v. Niagara (Regional Police Services Board), 2013 SCC 19.
(i) The Preconditions for Issue Estoppel
[24] OPSEU argues that the Arbitrator’s analysis of the “same question” precondition is unreasonable because the Inspectors did not answer the collective agreement questions raised in the grievances (the Failure to Inform and Incomplete Notice of Occupational Disease matters); the Inspectors did not determine whether there was an OHSA violation (the Sick Inmates and Failure to Inform matters); the Incomplete Notice of Occupational Disease matter was still under investigation; and the Inspectors did not decide the questions at issue in the grievance (Inmate Transfer matter).
[25] The Employer submits OPSEU’s argument – that different legal and factual issues are raised by the grievances – is newly asserted on review and urges us to decline to review OPSEU’s change in position: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, at para. 50. OPSEU submits that these are not new or fresh issues being raised for the first time and that each of the relevant issues was raised before the Arbitrator.
[26] In my view, it is preferable to determine the application for judicial review on the entirety of the submissions made.
[27] In Figliola, Abella J., writing for the majority, addressed the principles underlying the doctrine of issue estoppel at para. 27:
These concepts [the three preconditions for issue estoppel] were most recently examined by this Court in Danyluk, where Binnie J. emphasized the importance of finality in litigation: “A litigant…is only entitled to one bite at the cherry…Duplicative litigation, potential inconsistent results, undue costs, and inconclusive proceedings are to be avoided” (para. 18). Parties should be able to rely particularly on the conclusive nature of administrative decisions, he noted since administrative regimes are designed to facilitate the expeditious resolution of disputes (para. 50). All of this is guided by the theory that “estoppel is a doctrine of public policy that is designed to advance the interests of justice” (para. 19).
[28] In considering whether the issue is the same, the task is to identify whether the “source of concern” has already been decided “within the same factual and legal matrix”: Canadian Union of Public Employees, Local 59 v. City of Saskatoon, 2014 SKCA 14, at para. 47; Hebron v. University of Saskatchewan, 2015 SKCA 91, at para. 69. Parties should not try to impeach findings by the “impermissible route of relitigation in a different forum”: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, at para. 46.
[29] The Arbitrator analyzed the Inspector’s decision and the subsequent grievance for each matter and concluded that “[t]he grievances before me involve the same people and circumstances” and “the purposes and the stakes of the two proceedings are essentially identical; to ensure worker health and safety” GSB Decision, at paras. 61, 66.
[30] In particular, in the Sick Inmates matter, the Arbitrator found the grievance alleged a breach of the collective agreement and the OHSA with respect to the same incident considered by the Inspector: GSB Decision, at para. 8. In the Failure to Inform matter, the Arbitrator found the grievance alleged the Employer contravened the collective agreement and the OHSA “by failing to disclose information related to a hazard in the workplace to workers” and concluded “the grievance mirrored the complaint made to the Inspector”: GSB Decision, at para. 11. In the Inmates Transfer matter, the Arbitrator concluded that “[t]he particulars of the grievance make it clear that the grievance was about the same incident”: GSB Decision, at para. 14. In the Incomplete Notice of Occupational Disease matter, the Arbitrator found that OPSEU’s grievance “alleged a breach of the OHSA by the Employer in its failure to notify the Union of the names and other details of workers that contracted COVID-19 as an occupational illness”: GSB Decision, at para. 18.
[31] The Arbitrator relied on Figliola, citing Danyluk, at para. 57: “Having chosen not to judicially review the decision as they were entitled to do, the complainants cannot then claim that because the decision lacks “finality” they are entitled to start all over again before a different decision-maker dealing with the same subject matter.” The Arbitrator found that OPSEU had the right to file an application to the OLRB to appeal each of the Inspectors’ decisions. For purposes of an appeal to the OLRB, an order of an inspector specifically includes the refusal to make an order or a decision: OHSA, s. 61(5). That OPSEU did not appeal made “the Inspectors’ decisions final in these circumstances”: GSB Decision, at para. 59.
[32] The Arbitrator’s findings and conclusions on whether the preconditions for issue estoppel were met were reasonable and justified in relation to the relevant factual and legal constraints having a bearing on his decision.
(ii) Exercise of the Arbitrator’s Discretion
[33] OPSEU argues 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; that OPSEU did not initiate the processes resulting in two of the Inspector decisions; and that the GSB Decision may discourage unions and members from accessing OHSA protections.
[34] The Arbitrator correctly observed that, “the essential question in any given case is whether it would be unfair to apply the doctrine [of issue estoppel] in the circumstances of the case”: GSB Decision, at para. 52. The Arbitrator reasonably found that in the circumstances of this case, there was “little unfairness” to OPSEU, having chosen the Inspector route to deal with their health and safety concerns, to require them to follow that process through rather than to choose a different process”: GSB Decision, at para. 68. In exercising his discretion, the Arbitrator had regard for the principles underlying the doctrine of issue estoppel, including the general presumption of finality and the advancement of the interests of justice through the avoidance of duplicative proceedings. OPSEU’s argument that the OLRB “likely would have deferred to the grievance process” is speculative.
[35] OPSEU’s argument that the GSB Decision may discourage unions and members from accessing OHSA protections is also speculative. OPSEU’s argument that the Arbitrator failed to consider the “unfairness” of barring OPSEU’s grievances as a result of employee-initiated work refusals seemingly ignores the GSB’s labour relations expertise. Given its discretionary nature, the GSB Decision is entitled to a high degree of deference.
[36] In the result, applying the correct legal tests, and considering the circumstances of the case, the Arbitrator refused to hear the grievances because of the similarity in the issues and the parties. The Arbitrator balanced the need for finality against any potential unfairness in exercising his discretion, reasonably, to apply the doctrine of issue estoppel. His decision was reasonable.
(iii) Collateral Attack
[37] The Arbitrator reasonably interpreted and applied the doctrine of collateral attack. The common law doctrines of issue estoppel, abuse of process, and collateral attack are related: Toronto (City), at para. 22. 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.”
[38] Where 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.
[39] In 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.
[40] The Arbitrator in this case reached the same conclusion. His conclusion that the grievances constituted a collateral attack on the Inspectors’ decisions was reasonable.
Conclusion
[41] For these reasons, the application for judicial review is dismissed. In accordance with the parties’ agreement, OPSEU shall pay the amount of $5,000 all-inclusive to the Employer.
_________________________ Ryan Bell J.
I agree: _________________________
Backhouse J.
I agree: _________________________
Faieta J.
Date of Release: March 21, 2025
CITATION: Ontario Public Service Employees Union v. Ontario (Solicitor General), 2025 ONSC 1801
DIVISIONAL COURT FILE NO.: 345/24 DATE: 2025/03/21
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Backhouse, Faieta, Ryan Bell JJ.
BETWEEN:
ONTARIO PUBLIC SERVICE EMPLOYEES UNION /SYNDICAT DES EMPLOYÉS DE LA FONCTION PUBLIQUE DE L’ONTARIO
Appellant
– and –
THE CROWN IN RIGHT OF ONTARIO (MINISTRY OF THE SOLICITOR GENERAL)
Respondent
Respondents
REASONS FOR DECISION
Ryan Bell J.
Released: March 21, 2025
[^1]: The additional issue in one of the grievances that OPSEU said was not addressed was not raised as an issue on the application for judicial review.