The Ontario Divisional Court has upheld an arbitrator’s decision dismissing grievances by the Ontario Public Service Employees Union (OPSEU) related to COVID-19 safety concerns at the Ontario Correctional Institute, concluding the grievances were barred by issue estoppel and amounted to an impermissible collateral attack on Ministry of Labour inspectors’ decisions.
OPSEU had challenged an earlier Grievance Settlement Board (GSB) ruling that dismissed grievances arising from four separate incidents where corrections staff expressed concerns regarding workplace health and safety amid the COVID-19 pandemic.
OPSEU initially raised concerns through Occupational Health and Safety Act (OHSA) inspectors, who rejected the union’s claims. Instead of appealing those inspector decisions to the Ontario Labour Relations Board (OLRB), OPSEU filed grievances alleging violations of both the collective agreement and the OHSA.
Inspectors’ decisions on COVID-19 safety matters
The incidents at issue involved:
Sick Inmates: Correctional officers requested personal protective equipment (PPE), specifically masks, when dealing with inmates showing flu-like symptoms. The employer refused masks as the inmates had been medically cleared for COVID-19. The inspector found no entitlement to refuse work without confirmed COVID-19 cases.
Failure to Inform: OPSEU sought daily updates on COVID-19 infections, alleging the employer withheld necessary safety information. Inspectors concluded no further action was needed as the requested data had been shared during a meeting with health officials.
Inmate Transfers: Officers requested masks for inmate transfers due to COVID-19 concerns. The inspector ruled there was no right to refuse work because no confirmed COVID-19 cases were present.
Incomplete Notice of Occupational Disease: OPSEU alleged the employer failed to disclose employee names associated with confirmed COVID-19 cases. The inspector noted ongoing discussions regarding disclosure protocols and took no immediate action.
Arbitrator rules issue estoppel applies
The arbitrator dismissed the grievances, applying issue estoppel, stating that OPSEU’s choice not to appeal inspectors’ decisions to the OLRB rendered those decisions final. The arbitrator concluded the grievances involved the same parties and identical concerns, focusing on workplace health and safety during COVID-19.
“Having chosen the inspector route to deal with their health and safety concerns, [the union is required] to follow that process through rather than to choose a different process,” stated the arbitrator. Additionally, the arbitrator identified OPSEU’s grievances as an impermissible “collateral attack” on the inspectors’ decisions, emphasizing that established statutory appeal mechanisms under OHSA were ignored.
Judicial review confirms arbitrator’s reasoning
OPSEU sought judicial review, arguing the arbitrator unreasonably applied issue estoppel and incorrectly characterized their grievances as collateral attacks. The court disagreed, affirming that the arbitrator properly identified all elements of issue estoppel—finality, identical parties, and identical issues.
Justice Ryan Bell wrote that the arbitrator’s decision demonstrated “justification, transparency, and intelligibility,” stating it appropriately balanced finality and potential unfairness. The court also supported the arbitrator’s assessment of collateral attack, emphasizing that OPSEU had disregarded the statutory appeal process explicitly outlined by the OHSA.
“In challenging the Inspectors’ decisions, OPSEU ignored the statutory appeal mechanism,” said the court. It cited prior rulings indicating that permitting grievances under these circumstances would improperly allow relitigation in a different forum.
Decision emphasizes finality of administrative processes
The court’s ruling underscores the significance of adhering strictly to designated statutory appeal mechanisms, emphasizing that once parties choose a procedural route, they must exhaust that avenue fully. The judgment highlights the importance of finality and avoiding duplicated litigation in workplace safety disputes.
