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HomeMy WebLinkAbout2020-1161.Union.24-05-17 Decision Crown Employees Grievance Settlement Board Suite 600 180 Dundas St. West Toronto, Ontario M5G 1Z8 Tel. (416) 326-1388 Commission de règlement des griefs des employés de la Couronne Bureau 600 180, rue Dundas Ouest Toronto (Ontario) M5G 1Z8 Tél. : (416) 326-1388 GSB# 2020-1161; 2020-1163; 2020-1165; 2020-1169 UNION# 2020-0229-0025; 2020-0229-0027; 2020-0229-0029; 2020-0229-0033 IN THE MATTER OF AN ARBITRATION Under THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT Before THE GRIEVANCE SETTLEMENT BOARD BETWEEN Ontario Public Service Employees Union (Union) Union - and - The Crown in Right of Ontario (Ministry of the Solicitor General) Employer BEFORE Brian McLean Arbitrator FOR THE UNION David Wright Ryder Wright Holmes Bryden Nam LLP Counsel FOR THE EMPLOYER Paul Meier Treasury Board Secretariat Legal Services Branch Counsel HEARING February 5, 2024 -2 - Decision [1] I have before me a number of grievances relating to issues arising out of the circumstances at the start of the COVID-19 pandemic in the late Winter and early Spring of 2020. On February 5, 2024, the parties appeared before me to argue a preliminary motion brought by the Employer with respect to four of the grievances. These grievances were filed by the Union, (OPSEU and its Local 229), with respect to employees who work at the Ontario Correctional Institute in Brampton. [2] The circumstances of the four grievances are different. However, they have a common issue in that in each case the Union, believing that a work requirement was unsafe in light of COVID-19, sought an Order against the Employer from a Ministry of Labour (MOL) Inspector under the Occupational Health and Safety Act (OHSA). In each case the Inspector declined to make an Order against the Employer under the OHSA. Then, rather than utilizing the appeal procedures under the OHSA, the Union filed a grievance in each of the four cases which alleged violations of the collective agreement and the OHSA. [3] The Employer asserts in this motion that the Union’s actions in filing grievances should be barred by issue estoppel, abuse of process, and/or an improper collateral attack on the Inspectors’ decisions. Effectively, it argues, once the Union/Grievors chose the OHSA inspector route they should be precluded from pursuing the grievance arbitration route. The Employer asserts that 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 (OLRB) in accordance with the OHSA. Accordingly, the Employer asks me to dismiss these four grievances. The Facts [4] At the Ontario Correctional Institute there was a significant COVID-19 breakout, and it was eventually decided to temporarily close the facility and move the staff and inmates to a wing of another correctional facility. The four grievances at -3 - issue, broadly speaking, relate to employee concerns around the time of the breakout (both immediately before and after) and the Employer’s actions at the start of the COVID-19 pandemic. Grievance -GSB # 2020-1161 [5] The first grievance alleges that the Employer 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. There is no dispute that this grievance arose out of an incident which took place on April 14, 2020. On that day, a correctional officer (CO) was advised that four inmates had reported flu-like symptoms and had been sent to the institution’s health centre for assessment. They were returned to the institution’s D dorm and were isolated as a precaution. The CO expressed a concern about entering D dorm to do his work and asked for PPE (a mask) to protect himself against possible COVID-19 exposure. The Employer declined to provide a mask on the basis that the health centre had cleared the inmates as their symptoms were not consistent with COVID-19. [6] The CO met with the Employer and Union health and safety representatives in a stage 1 health and safety meeting. At the conclusion of the meeting the CO was not sure if he wished to engage in a work refusal under the OHSA. However, as a result of the CO’s complaint, other COs refused to perform their duties in D dorm unless they were provided masks. The Employer continued to decline to provide masks. [7] A MOL Inspector was called and conducted an investigation of the work refusal by telephone. Many people were on the call, including the COs and their Union representative. At the conclusion of the call the Inspector advised that the COs did not have the right to refuse work over the absence of masks unless a case of COVID-19 was confirmed. The Union representative advised the Inspector that a different Inspector had ordered the Employer to provide masks at another facility, South West Detention Centre. That information did not change the Inspector’s view. -4 - [8] The Union did not appeal the Inspector’s decision. The grievance was filed on July 2, 2020, and alleged a breach of the collective agreement and OHSA with respect to the same incident. Grievance- GSB # 2020-1163 [9] The second grieved incident relates to the April 14 – 20 time period. The Union’s concern was that the Employer was not providing it with appropriate and required information regarding a hazard in the workplace which it asserts it was entitled to under s.25(2)(a) of the OHSA for the dates, among others, April 18 and 19. In particular, it alleged that the Employer was not providing the Union with daily updates as to the number of positive COVID-19 tests in the workplace. In this regard, the Union alleged that Peel Public Health was providing the Employer with this information, but the Employer was not keeping the Union apprised. It now appears that five staff and 40 inmates tested positive for COVID-19 in this period. An OHSA Inspector was called to investigate the Union’s complaint. [10] The Inspector issued a report in which he stated that on April 20 he held a call with Peel Public Health, the Employer and the Union representative, at which the COVID-19 testing results were shared with the Union. The Inspector decided that no further action was required by the Ministry of Labour at the time regarding the complaint. The Union did not appeal the Inspector’s decision or his refusal to make an Order. [11] A grievance was filed and was referred to arbitration on July 2, 2020. It alleged that the Employer contravened Article 9 of the collective agreement and the OHSA “by failing to disclose information related to a hazard in the workplace to workers” in contravention of s. 25(2)(a) of the OHSA. The Union asserted that the Employer’s failure to inform workers on [Saturday] April 18 and [Sunday] April 19 that inmates at OCI had tested positive for COVID-19 as per Peel Region Public Health”. In other words, the grievance mirrored the complaint made to the Inspector. -5 - Grievance -GSB# 2020-1165 [12] The third grieved incident related to a work refusal by COs with respect to the Employer’s failure to provide PPE (masks) to COs 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. [13] The Inspector met with the workplace parties and the refusing workers and found that the work refusal did not meet the requirements of Section 43.3 of the OHSA. The Inspector found it was “a normal condition” that masks are only provided when there are confirmed COVID-19 cases and, in the circumstances, the Employer made reasonable provisions for health and safety because there were “no know[n] cases of Covid-19 in the workplace”. The Union did not appeal the decision. [14] The Union grieved the Employer’s failure to provide masks on this occasion. The grievance was referred to arbitration on July 2, 2020. The particulars of the grievance make it clear that the grievance was about the same incident as it stated that: on April 6, 2020, CO Tom Heinbuch and CO Coker “refused to work and requested face masks for staff that were doing transfers… as they would be in a confined space for transport with no ability for physical distancing”. Grievance -GSB# 2020-1169 [15] The fourth grieved incident concerns 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 (JHSC) of details, among other information, when an employee has contracted an occupational illness. The Union filed a complaint on April 24, 2020, and it appears an Inspector contacted the parties a short while later. The Employer had at that time, only provided the initials and addresses of employees who contracted COVID-19. -6 - S.52(2) references the regulations to the OHSA which provide: The Industrial Regulations section 5(2) outline the prescribed information referenced in 52(2): (c) the name, address and type of business of the employer; (d) the nature and the circumstances of the occurrence and of the bodily injury or illness sustained; (e) a description of the machinery or equipment involved; (f) the time and place of the occurrence; (g) the name and address of the person suffering the injury or illness; (h) the names and addresses of all witnesses to the occurrence; (i) the name and address of the physician or surgeon, if any, by whom the person was or is being attended for the injury or illness; and (J) the steps taken to prevent a recurrence or further illness (emphasis added) [16] The Inspector investigated the Union’s complaint. The Inspector consulted with the parties and advised that the investigation was ongoing at the time. The Inspector’s report stated: “Management stated that they are in consultation with their Legal Services Branch who advised a proposed protocol for release of information, including the names of employees, is being discussed corporately with OPSEU. As per their counsel, Management are to wait until this protocol is finalized before providing the names of any employees are provided [sic] in the notices of occupational illnesses.” [17] It appears no Order was made by the Inspector as a result of the discussions occurring at the corporate level. The Inspector stated that the “investigation is ongoing”. The Union did not appeal the refusal to issue an Order requiring the provision of the information required by the Regulation. -7 - [18] The Union filed a policy grievance which 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. The Parties’ Positions [19] The Employer’s position is that I should decline to hear and determine these four grievances because, in each case, the Union first made a complaint to the Ministry of Labour alleging a breach of the OHSA. In each case an Inspector was appointed and either made a decision or did not make a decision after consulting with the workplace parties. In either case, if the Union was dissatisfied with the Inspector’s decision (or refusal to make a decision) it was open to it to appeal to the OLRB. It did not do so and, in the Employer’s submission, is now stuck with the enforcement route it chose. [20] The Employer argues that the grievances and the referrals to arbitration constitute collateral attacks on the Inspectors’ decisions, rather than using the proper review processes found in the OHSA. They also amount to an abuse of process due to an unnecessary multiplicity of proceedings brought with respect to the same issues. [21] The Union argues that it should not be precluded from having its grievances arbitrated. There is no abuse of process because the parties have lost nothing due to the referral of these grievances to arbitration. That is because while the “appeal” to the OLRB of the Inspector’s order (or decision not to make an order) is called an “appeal” under the OHSA, the reality is that it is not a true appeal because the OLRB conducts a hearing “de novo”. In this regard, s. 61-3.3-3.6 of the OHSA states: (3.3) Subject to the rules made under subsection (3.8), the Board shall hold a hearing to consider the appeal unless the Board makes an order under subsection (3.4). … -8 - (3.6) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to present their evidence and to make their submissions. (emphasis added) [22] Because the appeal before the OLRB is a hearing de novo, that means that all the evidence and argument will be essentially the same before the arbitrator as it would have been if the appeal to the OLRB had proceeded. In other words, the Employer is in no different position in the grievance arbitrations than if the Union had appealed the inspectors’ decisions to the OLRB. The Authorities [23] In Toronto Transit Commission and Amalgamated Transit Union, Local 113, 197 L.A.C. (4th) 265, a case relied on by the Employer, Arbitrator Howe had before him a grievance in which the Union sought to prevent its operator members from being required/requested to investigate and extinguish fires in subway tunnels a part of an employer policy called “Plan B”. An OHSA inspector had previously been called in by the union to investigate the issue. In that case, the employer brought a motion that is essentially identical to the one before me. [24] The grievance before Arbitrator Howe was filed in 2008. In 2009 a MOL inspector investigated a complaint with respect to the same issue brought by a certified union member of the JHSA. The inspector made an order. Later in 2009 a different inspector also conducted an investigation and made orders against the TTC. In 2010 another inspector, Mr. Fenwick, also investigated and made further orders although not the ones sought by the union. Arbitrator Howe found that the issue investigated by inspector Fenwick was the same as the one in the grievance: 13. …It is evident from Mr. Fenwick's report that the issue of whether the portion of Plan B impugned by the grievance is unsafe was squarely raised by Mr. Jackson (in his capacity as a Certified Worker Representative appointed by the Union as a JHSC Co-Chair) and presumably also by Mr. Mackay (in his capacity as a Union Executive Board Member) on behalf of the Union and the operators whom it represents. The Inspector did not order the Employer to cease -9 - requesting operators to investigate tunnel incidents on a voluntary basis. [25] He later found in that same paragraph: Thus, although the OHSA proceedings have not yielded the result sought by the Union, Mr. Fenwick's report leaves open the possibility of further MOL involvement if the parties are unable to satisfactorily resolve the matter themselves. Consequently, if the Union is of the view that the Employer is failing to "continue to review and amend the plan with worker and operator involvement to ensure as safe a workplace as possible", to duly script the wording for the control centre workers asking operators to voluntarily investigate incidents so as to re-confirm and emphasize to operators that the requested action is voluntary in nature, or to otherwise satisfactorily resolve the Union's concerns regarding the safety of the impugned portion of Plan B, it is open to the Union to further pursue the complaint which gave rise to Mr. Fenwick's report, or to file a further complaint with the MOL regarding that portion of Plan B. [26] Finally, Arbitrator Howe held: 22 Although Union counsel disclaimed that his client is seeking to attack the results of the aforementioned MOL proceedings under OHSA, 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. [27] I note that while the union in that case first filed a grievance on the disputed issue and then sought enforcement of the OHSA through an Inspector, the key point is not the order in time of the commencement of enforcement efforts. The key point seems to have been that the Union actually obtained decisions from the Inspectors on the concerns it had raised prior to the start of the arbitration proceedings before Arbitrator Howe. [28] The Employer also relies on the Supreme Court of Canada decision in British Columbia (Workers' Compensation Board) v. British Columbia (Human Rights Tribunal) 2011 SCC 52, 2011. In that case three injured workers sought to be compensated for chronic pain suffered following separate workplace injuries. -10 - The WCB granted each of them a fixed compensation award in accordance with WCB policy. Each complainant appealed to the WCB’s Review Division, arguing that a policy which set a fixed award for chronic pain was patently unreasonable, unconstitutional under the Canadian Charter of Rights and Freedoms, and discriminatory on the grounds of disability under s. 8 of the B.C. Human Rights Code (the Code). [29] At the Review Division of the WCB, the review officer found that only the Workers Compensation Appeals Tribunal (the WCAT) had the authority to review WCB policies for patent unreasonableness. He also concluded that he had no jurisdiction to determine whether the policies were contrary to the Charter. Finally, he accepted that he had jurisdiction over the Human Rights Code complaint. However, he ultimately decided that the Board's chronic pain policy was not discriminatory and therefore not contrary to the B.C. Code. [30] The complainants appealed the review officer's decision to the WCAT. Before the appeal was heard, the B.C. legislature amended the Administrative Tribunals Act and the Workers Compensation Act, removing the WCAT's authority to apply the Code. Based on the amendments, the complainants' appeal of the review officer's human rights conclusions could not be heard by the WCAT, but judicial review remained available. [31] Instead of applying for judicial review, however, the complainants filed a complaint with the B.C. Human Rights Tribunal (the HRT), repeating the same Code arguments about the WCB's chronic pain policy that they had made before the review officer. They did not proceed with their appeal to the WCAT from the review officer’s decision that he did not have jurisdiction to find the WCB’s chronic pain policy to be patently unreasonable. [32] The WCB raised a preliminary objection before the HRT arguing that the human rights complaint was an improper collateral attack on the WCB review officer’s decision. In rejecting the objection, the HRT concluded that the substance of the complaints was not appropriately dealt with in the review process. This decision -11 - was ultimately appealed to the Supreme Court of Canada (the SCC). The SCC reviewed the concepts of issue estoppel, collateral attack and abuse of process. The Supreme Court held: 38 When an adjudicative body decides an issue within its jurisdiction, it and the parties who participated in the process are entitled to assume that, subject to appellate or judicial review, its decision will not only be final, it will be treated as such by other adjudicative bodies. The procedural or substantive correctness of the previous proceeding is not meant to be bait for another tribunal with a concurrent mandate. … 47 "Relitigation in a different forum" is exactly what the complainants in this case were trying to do. Rather than challenging the Review Officer's decision through the available review route of judicial review, they started fresh proceedings before a different tribunal in search of a more favourable result. This strategy represented, as Stromberg-Stein J. noted, a "collateral appeal" to the Tribunal (para. 52), the very trajectory that s. 27(1)(f) and the common law doctrines were designed to prevent: ... this case simply boils down to the complainants wanting to reargue the very same issue that has already been conclusively decided within the same factual and legal matrix. The complainants are attempting to pursue the matter again, within an administrative tribunal setting where there is no appellate authority by one tribunal over the other. [para. 54] 48 The Tribunal's analysis made it complicit in this attempt to collaterally appeal the merits of the Board's decision and decision-making process. Its analysis represents a litany of factors having to do with whether it was comfortable with the process and merits of the Review Officer's decision. 49 To begin, it questioned whether the Review Division's process met the necessary procedural requirements. This is a classic judicial review question and not one within the mandate of a concurrent decision-maker. While the Tribunal may inquire into whether the parties had notice of the case to be met and were given an opportunity to respond, that does not mean that it can require that the prior process be a procedural mimic of the Tribunal's own, more elaborate one. But in any event, I agree with Stromberg-Stein J. that there were no complaints about the complainants' ability to know the case to be met or the Board's jurisdiction to hear it: Each of the complainants participated fully in the proceedings; each knew the case to be met and had the chance to meet it. Each of the complainants had the benefit of competent and experienced counsel who raised the human rights issues within the workers' compensation context. The issues were analyzed and addressed -12 - fully by the Review Division. It was implicit in their submissions to the Review Division that they accepted the Review Division had full authority to decide the human rights issue. [para. 52] (See also Rasanen v. Rosemount Instruments Ltd. (1994), 112 D.L.R. (4th) 683 (Ont. C.A.), at p. 705.) As long as the complainants had a chance to air their grievances before an authorized decision-maker, the extent to which they received traditional "judicial" procedural trappings should not be the Tribunal's concern. [33] The Employer also relies on another decision of the Supreme Court of Canada, Danyluk v. Ainsworth Technologies Inc. 2001 SCC 44. In Danyluk an employee made a complaint against his employer under the Employment Standards Act (the ESA) for alleged unpaid commissions. An employment standards officer (ESO) was assigned to investigate the employee's complaint. The ESO spoke with the employee by telephone and on or about January 30, 1994, met with her for about an hour. The employee gave the ESO various documents, including her correspondence with the employer. They had no further meetings. [34] More than six months after filing her claim under the ESA but having not yet received a decision from the ESO, the employee commenced a lawsuit for wrongful dismissal. In her suit, she also claimed the unpaid wages and commissions that were the subject matter of her ESA claim. Later the ESO advised the respondent employer (but not the employee) that she had rejected the claim for unpaid commissions. At the same time, she ordered the employer to pay the employee two weeks' pay in lieu of notice of termination under the ESA. The employer then brought a motion asserting that the employee’s wrongful dismissal and other claims were barred by issue estoppel. The matter was ultimately appealed to the Supreme Court of Canada. [35] The Supreme Court first found that the adjudication of the claim following the ESO’s investigation was judicial in nature. It then applied the three-part test from Angle v. Minister of National Revenue, 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248 to establish whether the doctrine of issue estoppel applied: 1) Was the same question decided? 2) Was the decision final? -13 - 3) Were the parties the same? [36] The Supreme Court determined that each of these questions should be answered in the affirmative. The Supreme Court then went on to discuss whether it should exercise its discretion to refuse to apply issue estoppel even though the three factors had been satisfied. It reviewed cases where it had been repeatedly noted that a court might not apply the doctrine of issue estoppel where to do so would result in an injustice. [37] The Supreme Court noted that there was no right to an appeal in that a dissatisfied party had to apply to the Director of Employment Standards to be granted an appeal. In this regard, s. 67(3) of the ESA provided, “the Director may appoint an adjudicator who shall hold a hearing”. The Supreme Court found that the use of the word “may” in the statute indicated that the Director had discretion about whether to permit an appeal to proceed. I note that this is not the case under the OHSA; a party who is dissatisfied with an inspector’s decision may appeal as of right. [38] The Supreme Court held that the doctrine should not be applied. The allegations before the Court were set out in the decision in describing the employee’s argument: 26 The appellant’s argument is that even though the ESA officer was required to make a decision in a judicial manner, she failed to do so. Although she had jurisdiction under the ESA to deal with the claim, the ESA officer lost jurisdiction when she failed to disclose to the appellant the case the appellant had to meet and to give the appellant the opportunity to be heard in answer to the case put against her. The ESA officer therefore never made a “judicial decision” as required. 66 In my view it was an error of principle not to address the factors for and against the exercise of the discretion which the court clearly possessed. This is not a situation where this Court is being asked by an appellant to substitute its opinion for that of the motions judge or the Court of Appeal. The appellant is entitled at some stage to appropriate consideration of the discretionary factors and to date this has not happened. -14 - 67 The list of factors is open. They include many of the same factors listed in Maybrun in connection with the rule against collateral attack. A similarly helpful list was proposed by Laskin J.A. in Minott, supra. The objective is to ensure that the operation of issue estoppel promotes the orderly administration of justice but not at the cost of real injustice in the particular case. Seven factors, discussed below, are relevant in this case. [39] The factors found by the Court to be relevant in that case were as follows: (a) The Wording of the Statute from which the Power to Issue the Administrative Order Derives. In this case the ESA provided in s.6(1) that: No civil remedy of an employee against his or her employer is suspended or affected by this Act. In other words the ESA contemplated the possibility of parallel proceedings. (b) The Purpose of the Legislation. The Court found: 73 Nevertheless, the purpose of the ESA is to provide a relatively quick and cheap means of resolving employment disputes. Putting excessive weight on the ESA decision in terms of issue estoppel would likely compel the parties in such cases to mount a full-scale trial-type offence and defence, thus tending to defeat the expeditious operation of the ESA scheme as a whole. This would undermine fulfilment of the purpose of the legislation. (c) The Availability of an Appeal. As noted, the Court found the statute did not provide for an automatic right of appeal, although she had the possibility of an administrative review. (d) The Safeguards Available to the Parties in the Administrative Procedure. The Court found that the expeditious procedures suitable for an ESO’s determination “may simply be inadequate to deal with complex issues of fact or law”. Moreover, in this case, the ESO’s actions breached the natural justice rights of the employee. (e) The Expertise of the Administrative Decision Maker. The Court found this factor weighed against deference since the ESO was not legally trained. Moreover, the ESO applied a “rough and ready “approach which was “not the expertise required…” (f) The Circumstances Giving Rise to the Prior Administrative Proceedings. The Court appeared to find this factor to be neutral. The ESA claim was filed at a time of personal vulnerability for the employee. However, she also claimed $300,000 in unpaid commissions as part of her ESA claim. (g) The Potential Injustice The Court found that a “final and most important factor” was, taking into account all of the circumstances, whether an injustice would result if issue estoppel were applied. In this regard the Court was concerned that the employee’s claim for $300,000 in unpaid commissions had never been adjudicated and therefore the doctrine should not be applied against her. -15 - [40] Another case relied on by the Employer is Hebron v. University of Saskatchewan 2015 SKCA 91 in which the Saskatchewan Court of Appeal considered whether a human rights complaint brought by a student enrolled in a veterinary medicine program could proceed. The case arose out of the fact that the student advised the University that he had a learning disability and needed accommodation for his studies. Sufficient accommodations were allegedly not provided, and the student was required to discontinue his studies because he failed to achieve and maintain the requisite academic standard. The student unsuccessfully appealed through the University's internal appeal board and then commenced a human rights complaint, alleging a failure to accommodate by the University. The University argued that the student had chosen the internal appeal route and should be precluded from advancing a human rights complaint to the Saskatchewan Human Rights Commission (SHRC). The SHRC disagreed with the University. [41] The Court of Appeal held that the Human Rights Commission should not have accepted the complaint and commenced investigating it. The Court stated: 69 As the record in this appeal has amply demonstrated — and to paraphrase Abella J. (at para. 47) — relitigation in a different forum is exactly what Mr. Hebron was trying to do when he filed his SHRC complaint. Rather than challenging the UCAB panel decision through the available route of judicial review, he started fresh proceedings before the SHRC in search of a more favourable result. The effect of the Chief Commissioner's decision was to permit Mr. Hebron to reargue the very same issue that has already been conclusively decided within the same factual and legal matrix. In as much as this would be a 'collateral appeal' to the UCAB panel decision, it is exactly what s. 27.1(1)(d) of our Human Rights Code and the common law doctrines of issue estoppel, res judicata and collateral attack were designed to prevent. On an overall basis, the Chief Commissioner's decision would have had the effect of obstructing the goal of avoiding unnecessary litigation and it was, therefore, properly found to be unreasonable. [42] The Employer argues that together these cases stand for the proposition that a party may not choose one legal/statutory avenue and then, dissatisfied with the result, start down another legal/statutory path to try to obtain the desired result. This it says, is exactly what is going on here. OPSEU and its members asked a -16 - health and safety inspector to determine whether the Employer was in violation of the OHSA on four occasions, and the inspector exercised powers under the OHSA to do that. It notes these powers include: 57 (1) Where an inspector finds that a provision of this Act or the regulations is being contravened, the inspector may order, orally or in writing, the owner, constructor, licensee, employer, or person whom he or she believes to be in charge of a workplace or the person whom the inspector believes to be the contravener to comply with the provision and may require the order to be carried out forthwith or within such period of time as the inspector specifies. (6) Where an inspector makes an order under subsection (1) and finds that the contravention of this Act or the regulations is a danger or hazard to the health or safety of a worker, the inspector may, (a) order that any place, equipment, machine, device, article or thing or any process or material shall not be used until the order is complied with; (b) order that the work at the workplace as indicated in the order shall stop until the order to stop work is withdrawn or cancelled by an inspector after an inspection; (c) order that the workplace where the contravention exists be cleared of workers and isolated by barricades, fencing or any other means suitable to prevent access thereto by a worker until the danger or hazard to the health or safety of a worker is removed. (11) An inspector is not required to hold or afford to an owner, constructor, licensee, employer or any other person an opportunity for a hearing before making an order. [43] Moreover, while the Inspector is not required to hold a hearing before making an Order (see s.11) on the facts, each of the Inspectors met with the parties (it appears over the telephone, given the pandemic) and gave them a full opportunity to state their position and make arguments. [44] The Union asks me to keep in mind what the OHSA does and does not do. It argues, most importantly, that the OHSA does not set up a system where the decision of an Inspector is a final decision. That, it argues, is because the “appeal” of the Inspector’s hearing is a de novo hearing rather than an appeal based on alleged errors of fact or law or other similar appeal grounds. In this -17 - regard, s.61(1) (3.6) of the OHSA gives the parties “full opportunity… to present their evidence and to make their submissions” before the OLRB. [45] This means, the Union argues, that an MOL Inspector’s decision is not final “in the normal way”. This contrasts with the statute which creates the GSB which provides that it “shall…” hear and determine grievances”. Importantly, it asserts, the GSB and grievance procedure are the processes under which these grievances must be heard. [46] In addition, the OHSA does not provide the OLRB with exclusive jurisdiction over OHSA matters. It is not disputed that I, as an arbitrator of the GSB, have jurisdiction to interpret and apply the OHSA in the grievances before me. In addition, the Inspector does not have to afford the parties any natural justice rights. He/she may make an order against a party without hearing from them: s.57 (11) An inspector is not required to hold or afford to an owner, constructor, licensee, employer or any other person an opportunity for a hearing before making an order. [47] That, the Union argues, confirms that Inspectors’ decisions do not carry the same gravitas as other administrative decisions so that they must be appealed if a party disagrees, rather than filing a grievance on the same subject. [48] The Union also asserts there is a context to the grievances which could not be raised on an appeal of the Inspectors’ decisions. That context includes the fact that following the SARS outbreak some years ago, the parties agreed to do certain things to protect workers in case of another similar (or worse) outbreak. The Union alleges these agreements were breached and it does not want to wait for another pandemic to have these important questions determined. -18 - [49] The Union relies on the Supreme Court of Canada decision in Penner v. Niagara (Regional Police Services Board) [2013] 2 SCR 125. In that case Penner was arrested for disruptive behaviour in an Ontario courtroom. He filed a complaint against two police officers under the Police Services Act (the “PSA”), alleging unlawful arrest and unnecessary use of force. He also started a civil action claiming damages arising out of the incident. The hearing officer appointed by the Chief of Police under the PSA found the police officers not guilty of misconduct and dismissed the complaint. That decision was reversed on appeal by the Ontario Civilian Commission on Police Services on the basis that the arrest was unlawful. On further appeal, the Ontario Divisional Court concluded that the officers had legal authority to make the arrest and restored the hearing officer’s decision. The police officers then successfully moved in the Ontario Superior Court of Justice to have many of the claims in the civil action struck on the basis of issue estoppel. While finding several factors weighed against the application of issue estoppel, the Ontario Court of Appeal concluded that applying the doctrine would not work an injustice in this case and dismissed Penner’s appeal. [50] On appeal, the Supreme Court first discussed the and the importance of the doctrine of issue estoppel in ensuring fairness to parties: [28] Relitigation of an issue wastes resources, makes it risky for parties to rely on the results of their prior litigation, unfairly exposes parties to additional costs, raises the spectre of inconsistent adjudicative determinations and, where the initial decision maker is in the administrative law field, may undermine the legislature’s intent in setting up the administrative scheme. For these reasons, the law has adopted a number of doctrines to limit relitigation. [29] The one relevant on this appeal is the doctrine of issue estoppel. It balances judicial finality and economy and other considerations of fairness to the parties. It holds that a party may not relitigate an issue that was -19 - finally decided in prior judicial proceedings between the same parties or those who stand in their place. [51] However, the Court then continued in para. 29 to note that the application of the doctrine was discretionary: …However, even if these elements are present, the court retains discretion to not apply issue estoppel when its application would work an injustice. [30] The principle underpinning this discretion is that “[a] judicial doctrine developed to serve the ends of justice should not be applied mechanically to work an injustice”: Danyluk, at para. 1; see also Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at paras. 52-53. [52] The Court agreed that the three conditions necessary for the application of issue estoppel were present. It then discussed the approach to the exercise of discretion. It held that the essential question in any given case is whether it would be unfair to apply the doctrine in the circumstances of the case. [53] The Court noted that in Danyluk there was a list of factors which might be considered to determine whether a prior proceeding was unfair. However, it emphasized that was not an exhaustive list. It then stated: [39] Broadly speaking, the factors identified in the jurisprudence illustrate that unfairness may arise in two main ways which overlap and are not mutually exclusive. First, the unfairness of applying issue estoppel may arise from the unfairness of the prior proceedings. Second, even where the prior proceedings were conducted fairly and properly having regard to their purposes, it may nonetheless be unfair to use the results of that process to preclude the subsequent claim. Ultimately the decision about whether to apply these doctrines is up to the arbitrator based on whether to do so would lead to injustice. -20 - [54] The Court noted that the PSA did not foreclose a civil proceeding after a complaint had been filed. In fact, there were provisions in the PSA which the Court found specifically contemplated parallel proceedings. It noted that Penner’s civil action was filed almost a year before the hearing officer released his decision. In Danyluk, the civil proceedings had commenced before the administrative proceedings concluded. Accordingly, the respondents were well aware that they were faced with parallel and overlapping proceedings. In addition, other cases had found that issue estoppel did not apply in similar circumstances. Finally, Mr. Penner might well not understand that a proceeding in which he had no financial stake could preclude a claim for damages in a civil action. [55] The Court was also concerned that the application of issue estoppel in a case like that might cause someone like Penner to decline to participate in the PSA proceeding for fear of compromising any civil action he might have. This would undermine the police disciplinary process. This is especially the case since it is the Chief of Police who appointed the investigator, the prosecutor and the hearing officer with respect to Penner’s complaint against the officers. While these processes might be appropriate for the disciplinary matters, they might well be seen as unfair by Penner if the findings went against him. [56] The Court held, therefore, that applying issue estoppel to Penner in these circumstances was “fundamentally unfair”. The Court referred the matter back so that Penner’s civil claims could be adjudicated. DECISION [57] As noted above, the test for whether the doctrine of issue estoppel applies is set out in Angle v. Minister of National Revenue, supra, as follows: 1) Was the same question decided? 2) Was the decision final? 3) Were the parties the same? -21 - [58] I deal first with the argument that the decisions of Inspectors are not final. In the BC WCB case the Court had this so say about what makes a decision “final”: (at para 51): "Final" means that all available means of review or appeal have been exhausted. Where a party chooses not to avail itself of those steps, the decision is final. Even under the strict application of issue estoppel, which in my view is not in any event what s. 27(1)(f) was intended to incorporate, the Review Officer's decision was a final one in these circumstances. 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 (Danyluk, at para. 57)”. [59] In the cases before me, the Union had the right to file an application to the OLRB to appeal the Inspectors’ decisions. They did not do so. That makes the Inspectors’ decisions final in these circumstances. [60] In my view, it is also clear that the parties are the same. The parties before the Inspectors were the Union and the Employer. While it might be said that the individual employees were the parties before the Inspectors, the Union acts and acted on their behalf. The parties before me are also the Union and the Employer. [61] Similarly, there is no dispute (with one possible exception) that the questions before me are the same as before the Inspectors. The grievances before me involve the same people and circumstances. I do note that the Union did identify an additional issue in one of the grievances which it said was not dealt with by one of the Inspectors. I am unclear which grievance the Union was referring to and have sought information from the Union at the end of this award. Exercise of Discretion -22 - [62] Having decided that the conditions are present for the application of the doctrine of issue estoppel I must next determine whether to exercise my discretion to apply the doctrine and dismiss the grievances. There is no dispute that I have the authority to do so. [63] The Union argues, nevertheless, that I should not do so. In particular, it notes that the Employer has suffered no prejudice whatsoever if it is required to litigate the grievances at the GSB. That is because the hearing held by the OLRB is a hearing de novo. The hearing at the OLRB and before me would, as a result, take roughly the same amount of time and resources to litigate. The issues before me on the merits are essentially the same as would have been before the OLRB had the Union appealed the Inspectors’ decisions. The Employer suffers no prejudice if the arbitrations proceed. [64] There is no suggestion before me that the Inspector proceedings were unfair since there is no real question whether the parties had notice of the case to be met and were given an opportunity to respond. Indeed, they each participated in the Inspectors’ process after which he made his determination. In each case the Inspector met with the parties over the telephone and gave them a full opportunity to explain their position. There is no suggestion that the Inspectors do not have expertise in health and safety matters. The kinds of issues raised by these complaints are at the heart of the Inspectors’ experience and training. [65] Importantly, each of the parties before the Inspectors had a right of appeal within 30 days of the decisions. Rule 41.2 of the Board’s rules grants the Board or its Registrar wide authority to schedule hearings in way which meets the objectives of OHSA and the needs of the parties and the workplace. I have little doubt that the Board could have scheduled the appeals in an expeditious manner in accordance with the objectives of the OHSA. [66] That leaves whether it would be unfair to use the results of the Inspector processes to preclude the arbitration of these four grievances. The Court in Penner identified an area of potential unfairness, that being “where there is a -23 - significant difference between the purposes, processes or stakes involved in the two proceedings” (at para 42). That is not the case here. The purposes and the stakes of the two proceedings are essentially identical; to ensure worker health and safety. While the processes are somewhat different, those differences are designed to enhance health and safety in the workplace. In the route chosen by the Union/Grievors they got a speedy adjudication of their pressing and serious workplace concerns. If 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. [67] On the other hand, by grieving and then ultimately referring the matter to arbitration, especially given the agreed upon arrangements that were made with respect to grievances during the pandemic, which resulted in significant delays, the Union likely ended up with a much less quick process. [68] 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. [69] Moreover, the process chosen by the Union amounts to a collateral attack on the Inspectors’ decisions which has an impact on the Inspector. In an appeal to the Board, the Inspector is routinely made a party to the appeal either because they are a “Director” as defined in the OHSA or because the Board makes them a party pursuant to s. 61(2). As a party, the Inspector can (and usually is) represented by counsel at the Board’s hearing. I note that there is no evidence before me to suggest that the Inspector was given notice of the hearing in this matter before me or that such notice could be given and the Inspector made a party. These circumstances involve a collateral attack on the Inspectors’ decisions. These circumstances are much the same as the circumstances before Arbitrator Howe in the T.T.C. case discussed above where he decided that allowing the Union to proceed to arbitration would be improper. -24 - [70] It is true, as the Union argues, that the resources which would be needed to be expended at the GSB, if I exercised my discretion to let it proceed, would be similar to the resources which would have had to be expended at the OLRB had the Union appealed. However, that is just one of the considerations in exercising my discretion. I am satisfied that none of the factors identified in Danyluk and Penner apply here while recognizing that the lists of factors set out in those cases are not exhaustive. Those factors are: (a) The Wording of the Statute from which the Power to Issue the Administrative Order Derives. In Danyluk the ESA provided in s.6(1) that: No civil remedy of an employee against his or her employer is suspended or affected by this Act. In other words, the ESA contemplated the possibility of parallel proceedings. That is not present here but there is agreement that the parties’ collective agreement also contains measures for the protection of workers. The two schemes operate in parallel. (b) The Purpose of the Legislation. The purpose of the legislation is to, among other things, to provide and mandate workplace systems to ensure the health and safety of workers. It is identical (and much more broad) than the purpose of the health and safety provisions in the collective agreement. The OHSA is designed to have workplace safety concerns addressed expeditiously. That objective has been thwarted. (c) The Availability of an Appeal. There is an appeal under the OHSA available as a matter of right. (d) The Safeguards Available to the Parties in the Administrative Procedure. In Danyluk the Court found that the expeditious procedures suitable for an ESO’s determination “may simply be inadequate to deal with complex issues of fact or law”. It also found that the ESO’s actions breached the natural justice rights of the employee. Here, there is no suggestion that the natural justice rights of the Union or employees were breached. There is also no suggestion that the expeditious procedures used by the Inspectors were inadequate in the circumstances. -25 - (e) The Expertise of the Administrative Decision Maker. There is no suggestion that the Inspectors do not have expertise in workplace health and safety. The issues before them did not involve complex legal issues. Instead, they mostly involved an assessment of whether the workers’ health and safety was at risk in the circumstances. Under the OHSA inspectors have broad powers to carry out their duties. (f) The Circumstances Giving Rise to the Prior Administrative Proceedings. This factor is discussed below. (g) The Potential Injustice. While it is true that the Union’s claim that arbitration is necessary to deal with respect to alleged breaches of agreements made in a previous pandemic, it is clear that is not the focus of the grievances. Instead, the grievances are about the circumstances which occurred in the instances in question. There is also no suggestion that other grievances directed at alleged breaches of prior agreements could not have been filed as seperate policy grievances. [71] I do have some concerns about the circumstances under which the Inspectors made their decisions. It was the start of a pandemic when it was not entirely clear how deadly the virus was. The COs work in a congregant setting where it might be expected that it would be relatively easy for the virus to take hold among the population. It was critical that decisions be made quickly. As a result, the Inspectors conducted their investigation by telephone. [72] Certainly, the circumstances under which the Inspectors made their decisions were not ideal. However, to some degree that is the nature of being an Inspector. Work refusals, for example, almost always involve considerable workplace tensions. They often happen in the dead of night and often over the telephone. In my view, the circumstances that existed at the time should diminish the deference given to these decisions by these Inspectors. Those circumstances do not justify a collateral attack on them. -26 - [73] Fundamentally, I disagree with the Union that it and the grievors that, to quote the Court in Penner, “even where the prior proceedings were conducted fairly and properly having regard to their purposes, it may nonetheless be unfair to use the results of that process to preclude the subsequent claim”. I do not find any unfairness here. While the Union claims that it should be entitled to continue with the grievances so that it can raise issues regarding breaches of agreements made following the SARS pandemic, as noted, that objective could have been obtained through other means. [74] For all the foregoing reasons I decline to hear and determine these four grievances. Dated at Toronto, Ontario this 17th day of May 2024. “Brian McLean” Brian McLean, Arbitrator