Grievance Arbitration — Ontario Employment Law
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About Grievance Arbitration
In a unionized workplace in Ontario, grievance arbitration is the formal, legally-mandated process used to resolve disputes between an employer and a union about the interpretation or application of a collective agreement. Think of it as a private court system for the unionized environment. Unlike non-union employees who must sue in civil court for issues like wrongful dismissal, unionized employees rely on this process. Section 48(1) of Ontario's Labour Relations Act, 1995 requires every collective agreement to contain a mechanism for the final and binding settlement of all disputes through arbitration, without any work stoppage. This process is typically the final step after the internal grievance procedure fails to produce a resolution.
The process begins when the union files a grievance on behalf of an employee (or a group of employees) that they believe the employer has violated the collective agreement. If the parties can't resolve it through discussion, the union can refer the matter to arbitration. A neutral third party, called an arbitrator, is appointed to hear the case. The hearing itself resembles a court proceeding: both the union and the employer present evidence, call witnesses, and make legal arguments. The arbitrator's final decision, known as an 'award,' is legally binding on all parties. Arbitrators have the authority to resolve a wide range of issues, including terminations, discipline, seniority rights, pay disputes, and even human rights complaints that arise under the collective agreement. Because this process is highly specific and governed by both the collective agreement and decades of labour law, understanding your rights and obligations requires careful review of your specific situation, often with guidance from your union representative.
Frequently Asked Questions
What is the difference between a grievance and grievance arbitration?
A grievance is the initial formal complaint filed by the union alleging a violation of the collective agreement. Grievance arbitration is the final, hearing stage of the process that occurs if the grievance cannot be resolved through the earlier steps of the grievance procedure.
Can I take my employer to arbitration by myself?
No. In a unionized workplace, the union 'owns' the grievance. The decision to advance a case to arbitration is made by the union, not the individual employee. Your role is to work with your union representative who will manage the case.
Who pays for grievance arbitration in Ontario?
Typically, the union and the employer share the costs of the arbitrator. This is a requirement under the Labour Relations Act, 1995, unless the collective agreement specifies a different arrangement.
Are there time limits for filing a grievance?
Yes, and they are extremely important. Collective agreements contain strict timelines for filing a grievance after an incident occurs. Missing these deadlines can result in your case being dismissed without ever being heard on its merits.
Is an arbitrator's decision final?
Yes, an arbitrator's award is legally binding and final. It can only be challenged in court on very narrow grounds, such as a denial of procedural fairness, through a process called judicial review. This is a high bar to meet.
My dispute involves discrimination. Does it go to arbitration or the Human Rights Tribunal?
It's complex, but often it must go to arbitration first. Ontario arbitrators have the power to apply the Ontario Human Rights Code. If the 'essential character' of the dispute arises from the collective agreement, arbitration is usually the required forum.
When should I talk to a lawyer about a grievance arbitration issue?
Your first point of contact should always be your union representative, as the union provides legal representation. You might consider seeking independent legal advice if you believe your union is not representing you fairly, which could lead to a separate 'duty of fair representation' complaint.
Common Scenarios
- A transit operator is terminated for a rules violation, and their union takes the case to arbitration, arguing the discipline was excessive and seeking reinstatement.
- A hospital implements a new vacation scheduling policy that the nurses' union argues violates the terms of their collective agreement, leading to a policy grievance that proceeds to arbitration.
- A construction worker is laid off while a more junior employee is kept on, prompting the union to file a grievance for violating the seniority clause, which is then heard by an arbitrator.
- An office administrator in a unionized company is denied a request for accommodation related to a disability, and the union grieves the decision as a violation of both the collective agreement and the Human Rights Code.
- An employer refuses to pay a newly negotiated wage increase on time, and the union files a grievance that proceeds to arbitration to force the employer to comply with the agreement and pay retroactive wages.
What You Should Know
- Carefully document every detail of the incident in question, including dates, times, witnesses, and conversations. Provide this information to your union steward or representative immediately.
- Review your collective agreement to understand the specific timelines for filing a grievance. Acting quickly is critical, as missing a deadline can be fatal to your case.
- Be an active partner in your case by cooperating fully with your union representative, providing all requested documents, and being honest about the facts.
- Understand that an arbitrator's decision is final and binding. The outcome, whether positive or negative, will resolve the matter definitively with very limited grounds for appeal.
- If you are concerned that your union is handling your case in a manner that is arbitrary, discriminatory, or in bad faith, you may need to consult an employment lawyer about filing a duty of fair representation complaint with the Ontario Labour Relations Board.
Featured Cases
Amalgamated Transit Union, Local 113 v. Toronto Transit Commission
2021 ONSC 7658 (CanLII) · 2021-11-20Mandatory Vaccination Policies: Labour Arbitration and Charter Rights
A labour arbitration case involving unionized employees challenging mandatory COVID-19 vaccination policies enforced by their employer. The court is considering whether to intervene in the dispute, balancing individual rights with public health and workplace safety, and whether such policies infringe on constitutional rights under the Canadian Charter of Rights and Freedoms.
De Facendis v. Toronto Parking Authority
2021 ONSC 1695 (CanLII) · 2021-03-08Workplace Sexual Harassment: Arbitration Jurisdiction and Charter Rights
A unionized employee alleged sexual harassment and assault by a co-worker, leading to a dispute over the jurisdiction of labour arbitrators under the Labour Relations Act. The court affirmed the arbitrators' jurisdiction, interpreting section 48(1) to include workplace sexual assault claims and found no violation of the Charter of Rights regarding sex discrimination.
Ottawa (City) v. Girard
2012 ONSC 7256 (CanLII) · 2012-12-19Employment Jurisdiction: Court vs. Labour Arbitration
A court case determining whether it has jurisdiction to hear a dispute over an alleged overpayment of salary after the termination of a former employee, where the dispute is not covered by the collective agreement. The court upholds its jurisdiction as the essential character of the dispute does not fall within the agreement’s scope.
Canadian Broadcasting Corp. v. Joyce
1997 CanLII 16219 (ON SC) · 1997-06-27Arbitrator Authority: Correcting Interim Awards and Lesser Penalties in Dismissal Cases
A grievance arbitration case under the Canada Labour Code involving the authority of an arbitrator to revisit and correct an interim award, as well as the power to substitute a lesser penalty in a dismissal for just cause. The case addresses the doctrine of functus officio and the arbitrator's jurisdiction over preliminary objections.
Ontario (Minister of Community & Social Services) v. Ontario Crown Employees Grievance Settlement Board
1997 CanLII 16262 (ON SC) · 1997-03-14Wrongful Dismissal: Employee Dismissed for Sexual Assault and Evidentiary Ruling Challenged
A merits decision involving a wrongful dismissal case where an employee was dismissed for sexual assault, and the Ontario Crown Employees Grievance Settlement Board refused to admit a certificate of conviction as prima facie evidence of assault. The court ruled that the Board's evidentiary decision was patently unreasonable and contrary to statutory duties under the Labour Relations Act.
United Steelworkers of America, Local 12998 v. Liquid Carbonic Inc.
1996 CanLII 11787 (ON SC) · 1996-06-12Labour Relations Act: Compensation in Lieu of Reinstatement in Grievance Arbitration
A merits decision involving a grievance arbitration where an arbitrator awarded compensation in lieu of reinstatement after finding no just cause for dismissal. The case examines whether the Labour Relations Act permits such compensation as a lesser penalty and the applicable standard of review for judicial review of the arbitrator’s decision.
Ontario Public Service Employees Union v. Ontario (Ministry of Community and Social Services)
1995 CanLII 10660 (ON SC) · 1995-12-14Labour Arbitration: Estoppel and Jurisdiction in Collective Agreement Dispute
A labour arbitration case involving a grievance dismissed by the Grievance Settlement Board, with the court quashing the decision and remitting the matter for reconsideration. The dispute centered on whether the Board had jurisdiction to apply the doctrine of estoppel to claims of employee detrimental reliance under a collective agreement.
National Automobile, Aerospace & Agricultural Implement Workers Union of Canada, Local 127 v. Eaton Yale Ltd.
1995 CanLII 10655 (ON SC) · 1995-03-28Collective Agreement Dispute: Arbitrator's Interpretation of Life Insurance Clause
A judicial review of an arbitrator's decision regarding the interpretation of a life insurance clause in a collective agreement. The employee was laid off and denied life insurance benefits, and the arbitrator relied on extrinsic evidence and booklet terms to interpret the unambiguous clause, raising questions about the proper application of the Labour Relations Act.
O.P.S.E.U. v. Ontario (Minister of Natural Resources) (Div. Ct.)
1990 CanLII 6626 (ON SC) · 1990-09-21Labour and Employment: Grievance Arbitration and Jurisdiction of Crown Employees Board
A labour and employment case involving a grievance arbitration concerning the Crown Employees Grievance Settlement Board's jurisdiction to review and amend class standards established by management. The court applied governing principles of judicial review to assess whether the Board correctly interpreted its statutory jurisdiction under the Crown Employees Collective Bargaining Act.
Ontario (Minister of Correctional Services) v. O.P.S.E.U. (Div. Ct.)
1990 CanLII 6697 (ON SC) · 1990-09-05Grievance Timelines in Collective Agreement: Health and Safety Violation Case
A merits decision involving a grievance arbitration dispute under a collective agreement, where an employee alleged a health and safety violation after being exposed to tuberculosis. The Grievance Settlement Board ruled the grievance was timely, and the decision was upheld on judicial review.
Tele-Direct (Publications) Inc. v. Office and Professional Employees' International Union, Local 131 (Div. Ct.)
1990 CanLII 6807 (ON SC) · 1990-05-30Grievance Arbitration: Employee Entitled to Return to Work Under Collective Agreement
A merits decision involving a grievance arbitration under a collective agreement, where the employer placed the grievor on a disability pension instead of allowing them to return to work. The arbitrator upheld their jurisdiction to determine the grievor’s right to return to work, and the decision was found reasonable and within jurisdiction under the Labour Relations Act.
C.U.P.E. Local 1394 v. Extendicare Health Services Inc. (Ont.Div.Ct.)
1990 CanLII 6904 (ON SC) · 1990-01-26Labour Relations Grievance Arbitration Case Under Ontario Labour Relations Act
A labour relations case involving grievance arbitration and judicial review under the Labour Relations Act, R.S.O. 1980, c. 228, s. 106(1).
Windsor Western Hospital Centre Inc. (I.O.D.E. Unit) v. O.N.A. (Div.Ct.)
1989 CanLII 4154 (ON SC) · 1989-06-08Judicial Review of Arbitration: Conflicting Collective Agreement Interpretations
A judicial review case concerning conflicting interpretations of collective agreement provisions by different arbitrators. The hospital sought review of an arbitration award due to its conflict with a prior award upheld by the court. The court ruled that it must defer to reasonable interpretations of arbitrators under the narrow scope of judicial review.
Balanyk v. Greater Niagara General Hospital (Ont.Div.Ct.)
1988 CanLII 4619 (ON SC) · 1988-02-16Nurse Grievance Arbitration: Jurisdiction and Procedural Fairness Issues
A merits decision involving a nurse suspended for refusing to comply with a medical information release and psychiatric assessment. The arbitrator ordered a psychiatric assessment and adjourned the hearing, raising questions about whether the arbitrator exceeded jurisdiction by failing to address substantive grievance issues, including just cause and penalty under the collective agreement.
Metropolitan Toronto (Municipality) v. C.U.P.E. (Div. Ct.)
1987 CanLII 4179 (ON SC) · 1987-11-25Union Grievance Over Ambulance Policy Quashed in Judicial Review
A judicial review case involving a union grievance challenging an employer's policy on the mandatory use of ambulance emergency lights. The arbitration board's decision to review the policy was quashed for acting patently unreasonably, as the board exceeded its jurisdiction by challenging general policy directives absent specific disciplinary action.
Re Greater Niagara Transit Commission and Amalgamated Transit Union, Local 1582
1987 CanLII 4267 (ON SC) · 1987-09-17Grievance Arbitration: Employee Reinstated After Theft Dismissal
A merits decision involving a grievance arbitration under the Labour Relations Act, where an employee was dismissed for theft and reinstated by the arbitration board. The case raises questions about whether the board erred in excluding evidence of the employee's statements to police, which had been ruled inadmissible in criminal proceedings under the Charter of Rights and Freedoms, and whether the board independently assessed the admissibility of the evidence under the Labour Relations Act.
Re Dayco (Canada) Ltd. and National Automobile, Aerospace & Agricultural Implement Workers Union of Canada et al.
1987 CanLII 4272 (ON SC) · 1987-08-27Retiree Benefits and Arbitrator Jurisdiction Post-Collective Agreement Expiration
A labour and employment case concerning the arbitrability of a grievance related to retiree benefits after the expiration of a collective agreement. The union argued that retiree benefits vested during the agreement’s term and extended beyond its expiration, while the company contended that benefits terminated with the agreement. The arbitrator found no jurisdiction to hear the grievance post-expiration, and the case addresses whether retiree benefits under a collective agreement survive its expiration.
Re Ontario Public Service Employees Union and Salvation Army Grace Hospital et al.
1987 CanLII 4311 (ON SC) · 1987-02-10Labour Relations Grievance Arbitration Case Involving Ontario Public Service Employees Union
A labour relations case involving grievance arbitration and judicial review in the context of the Ontario Public Service Employees Union and Salvation Army Grace Hospital.
Re The Queen in right of Ontario and Ontario Public Service Employees Union et al.
1986 CanLII 2476 (ON SC) · 1986-12-18Grievance Arbitration: Authority of Board to Award Interest and Higher Pay
A merits decision involving grievance arbitration under the Crown Employees Collective Bargaining Act, addressing whether the Grievance Settlement Board has authority to award interest on lost wages, order higher pay for substantial equivalence, and interpret 'remuneration' under the Unemployment Insurance Act.
Re Ontario Public Service Employees Union and the Queen in right of Ontario et al.
1986 CanLII 2661 (ON SC) · 1986-10-16Judicial Review of Grievance Arbitration under Collective Bargaining Act
A judicial review case concerning grievance arbitration under the Crown Employees Collective Bargaining Act, involving the Ontario Public Service Employees Union and the Queen in right of Ontario.