An Ontario arbitrator has dismissed an employee’s grievance challenging a COVID-19 vaccination policy and his placement on unpaid leave, ruling the grievance was filed too late and rejecting attempts by the Ontario Public Service Employees Union (OPSEU) to expand its original scope.
J.J., an overnight support worker employed by Reena, a non-profit supporting adults with developmental disabilities in Toronto, sought a religious exemption from the mandatory vaccination policy implemented by his employer in October 2021. After the employer denied his request, J.J. was placed on unpaid leave starting Oct. 30, 2021.
The policy, first implemented on Oct. 6, 2021, required employees to have at least one COVID-19 vaccine dose, with proof due by Oct. 29, 2021. Those who failed to comply would be placed on unpaid leave.
J.J. sought a religious exemption from the vaccination policy on Oct. 25, 2021. The employer denied this request, citing that it did not meet the criteria for a creed-based exemption. Consequently, J.J. was placed on unpaid leave.
Over a year later, on Oct. 28, 2022, J.J. emailed the employer requesting to return to work, arguing that the public health situation had changed. The employer denied the request, noting that the vaccination policy had been updated in April 2022 to require a third vaccine dose for frontline staff. J.J. reiterated his refusal to be vaccinated, claiming the policy infringed his rights.
J.J. subsequently requested a formal complaint meeting on Nov. 4, 2022. The employer objected to the timeliness of the complaint, noting that it was filed over a year after the initial decision. The grievance itself was filed on Dec. 23, 2022, again beyond the seven-day limit outlined in the collective agreement.
At arbitration, the union attempted to broaden the grievance to challenge the overall reasonableness of the vaccination policy, asserting it was outdated and no longer provided health and safety benefits. The employer objected, arguing this constituted a new grievance, improperly expanding the original complaint.
The arbitrator sided with the employer, concluding that the original grievance did not explicitly challenge the reasonableness of the policy. The grievance initially focused only on whether J.J.’s request for religious accommodation was improperly denied. The arbitrator cited prior cases to affirm that grievances must be liberally construed but cannot be expanded into entirely new claims.
The arbitrator noted the grievance specifically alleged violations of the collective agreement related to discrimination and accommodation but made no mention of challenging the employer’s management rights or the reasonableness of its vaccination policy. The requested remedy, reinstatement with retroactive pay, also aligned strictly with the individual accommodation claim.
Additionally, the arbitrator emphasized that a challenge to the policy’s reasonableness would require substantially different evidence, likely including expert testimony. Allowing the union to broaden the grievance at this stage would cause significant prejudice to the employer.
On the question of timeliness, the arbitrator found that J.J.’s grievance was not a continuing breach of the collective agreement. Rather, the breach occurred only once—on Oct. 29, 2021, when the employer initially denied J.J.’s religious exemption request. Subsequent requests to revisit this decision did not constitute new breaches or reset the timeline for filing a grievance.
The arbitrator acknowledged the authority to extend timelines under the Labour Relations Act but declined to exercise this discretion. While the union argued that delays were caused by internal miscommunication and administrative confusion, the arbitrator ruled that no reasonable grounds justified an extension. The union conceded the grievance was late, but argued there was no prejudice to the employer. However, the arbitrator emphasized that the critical issue was the delay itself, not solely the question of prejudice.
Ultimately, the arbitrator upheld the employer’s objections on both counts, dismissing the grievance for being filed outside prescribed timelines and rejecting the union’s attempt to challenge the vaccination policy’s reasonableness as an inappropriate expansion of the original grievance. The arbitrator noted the union retained the option of filing a separate grievance specifically challenging the policy if it wished.
For more information, see Ontario Public Service Employees Union, Local 554 v Reena, 2025 CanLII 20267 (ON LA).
