The Ontario Labour Relations Board has dismissed a worker’s request to reconsider its decision rejecting his fifth duty of fair representation complaint against his union, finding the worker was attempting to relitigate issues already ruled upon.
The tribunal issued its decision earlier this month, ending a multi-year dispute between the worker, a Ministry of Health employee in the Emergency Health I&IT Solutions & Technology Management Branch, and the Ontario Public Service Employees Union.
The worker had filed the reconsideration request after the tribunal dismissed his section 74 application in an April 30, 2025, decision. That application alleged OPSEU violated its duty of fair representation in handling his grievances during an arbitration process that spanned more than six years.
Pattern of complaints
The April 30 application marked the worker’s fifth duty of fair representation complaint against OPSEU. The tribunal dismissed the first four complaints as premature because the arbitration process remained ongoing and incomplete.
The worker filed the fifth complaint after the Grievance Settlement Board dismissed his grievance. In his application, the worker stated he brought the complaint “because the 3 critical grievances of the applicant have been wrongfully and prematurely dismissed without Arbitration process and without completing the required legal obligations and process.”
The tribunal summarized the worker’s allegations in its earlier decision, stating “the applicant alleges that the arbitration of his three grievances took too long, that his wishes in how to advance the arbitration were not considered, that external counsel hired by OPSEU to litigate the grievances colluded with MOH counsel to ensure that the grievances were not litigated in a fair and expeditious manner.”
Narrow scope established
In a June 26, 2024, decision, the tribunal dismissed most of the worker’s allegations as failing to disclose a prima facie case. The tribunal allowed only two issues to proceed to consultation:
- Senior union officials refused to meet with the worker to discuss issues he claimed to have with the arbitration process
- OPSEU showed no interest in taking steps to complete the arbitration process for 3.5 years
The worker did not request reconsideration of the June 26, 2024, decision.
The tribunal held a consultation over two days in September and November 2024, then issued its April 30, 2025, decision dismissing the application.
Reconsideration request
The worker’s reconsideration request contained 240 paragraphs. Paragraphs 3 through 184 set out the worker’s version of events leading up to the filing of his fifth complaint under various headings including “Arbitrary OPSEU conduct at workplace before filing the grievances,” “Arbitrary OPSEU Conduct after Filing Grievances,” and “OPSEU and Employer Mutual Arbitrary conduct to dismiss grievances without arbitration.”
The worker advanced several grounds for reconsideration:
- The tribunal should have proceeded by way of a full hearing rather than a consultation
- Counsel for OPSEU sought to curtail his submissions during the consultation process
- The decision was issued without including required material and evidence
- The decision was issued without addressing critical issues in the case
- The decision contradicted the tribunal’s previous decisions
- The decision contradicted the arbitrator’s decision in the same case
High bar for reconsideration
The tribunal outlined the stringent test for reconsideration, noting it “will not reconsider its decisions unless there are good reasons for doing so.”
The tribunal cited its own previous decision, which stated: “The limitations upon requests for reconsideration are well-known. The Board reconsiders its decisions in limited circumstances. It balances the public interest in the finality of Board decisions against the need to correct decisions which are erroneously made, or which were made on the basis of inadequate or misleading information, or by default.”
The grounds for reconsideration include: important issues of policy not adequately addressed, a party not having had opportunity to make representations previously, new relevant evidence that could not previously have been obtained through reasonable diligence, or an obvious error made by the tribunal.
The tribunal noted “there is a significant difference between a patent or obvious error in a decision and a finding or conclusion that was open to the Board to reach as a result of it weighing evidence and assessing competing arguments.”
Attempt to relitigate
The tribunal found most of the worker’s grounds for reconsideration related to sections of his original application that it had dismissed in its June 26, 2024, decision.
“I agree with the submissions of OPSEU and the intervenor that the applicant seeks to go behind the June 26, 2024, decision and argue issues which the Board had previously ruled it would not entertain,” the tribunal stated. “As the Board has ruled on many occasions, a request for reconsideration will not be entertained if it seeks to relitigate issues which had previously been argued and ruled on by the Board.”
The tribunal noted the worker’s submissions on four of his grounds “do not relate to the two discrete issues that Board had determined would be investigated at the consultation.”
The worker claimed the tribunal ignored documents he filed in response to those submitted by OPSEU. The tribunal found these documents were filed “without invitation or leave of the Board” after the conclusion of final arguments at the second day of consultation and “were therefore not properly before the Board.”
Process objections rejected
Regarding the worker’s claim that the tribunal should have held a full hearing rather than a consultation, the tribunal noted the June 26, 2024, decision had identified the matter would proceed by consultation. The worker did not seek reconsideration of that decision and did not object to the consultation format before filing his reconsideration request.
The tribunal stated it has “previously stated that the principles of natural justice are not violated by proceeding by way of a consultation rather than a hearing.”
On the worker’s complaint that union counsel curtailed his submissions, the tribunal found OPSEU’s objections “were made in response to the applicant’s attempts to expand the scope of the inquiry to issues beyond those identified by the Board in its June 26, 2024, decision.”
The tribunal noted it had ruled in that earlier decision that the worker “had not made out a prima facie case in respect of the majority of his allegations spanning the six year period” and determined a prima facie case existed only for the two narrow issues. “OPSEU’s objections during the course of the consultation were therefore entirely proper,” the tribunal stated.
The tribunal concluded: “For all of the foregoing reasons, I find that the applicant has not met any of the general conditions the Board has stated must be met before it will exercise its discretion to reconsider one of its decisions.”
For more information, see (Plaintiff) v Ontario Public Service Employees Union – OPSEU, 2025 CanLII 108330 (ON LRB).
