Grievance Mediation vs. Arbitration in Ontario

Grievance mediation is confidential and, unless the collective agreement makes it a required step, voluntary: a neutral helps the employer and union try to settle a grievance but does not decide it. Arbitration is the final and binding step every collective agreement under Ontario's Labour Relations Act, 1995 must provide for: a neutral hears the evidence and issues a decision the parties must follow. Mediation lets the parties settle on their own terms; arbitration decides if they cannot.

Two different jobs for a neutral

Ontario's ministry grievance mediators are neutral and do not issue binding decisions; parties may instead retain a private mediator. Grievance arbitration, also called rights arbitration, is final and binding: a neutral hears submissions and evidence and decides. Under the Labour Relations Act, 1995, the decision binds the parties and affected employees and, if not complied with, can be filed in the Superior Court of Justice and enforced as a judgment.

What the collective agreement controls in Ontario

Section 48 requires every collective agreement to provide for final and binding arbitration, without stoppage of work, of all differences about its interpretation, application, administration or alleged violation. If the clause is missing, the Act deems one in.

Ministry mediation is voluntary: a ministry mediator needs a joint, written request with the grievance(s), the collective agreement and each representative's contact information; the ministry charges a fee, which the parties decide whether to share. Also check the agreement for:

• Grievance time limits. Mediation does not jeopardize either party's ability to arbitrate, but those timelines still apply.
• How the arbitrator is appointed. If the parties fail to appoint, either may request an appointment under section 48, which is at the Minister's discretion.
• Any specific penalty for the conduct. If none, an arbitrator who finds discipline was for cause may substitute a penalty that seems just and reasonable.
• Whether it states that section 48(16) does not apply. If not, an arbitrator may extend grievance procedure time limits where there are reasonable grounds and the other party will not be substantially prejudiced.

Expedited arbitration under section 49

Section 49 lets a party ask the Ontario Minister to refer a grievance to a single arbitrator, replacing the agreement's arbitration procedure for that grievance. Unlike under section 48, the Minister must appoint.

• Timing: a written request may be made once the grievance procedure is exhausted or 30 days after the grievance was first brought to the other party's attention, whichever is first (14 days for discharge or other termination), but not beyond the time stipulated in or permitted under the agreement for referring it to arbitration.
• Speed: the hearing must begin within 21 days after the Minister receives the request; the decision is due within 30 days after hearings end, unless extended.
• Scope: the arbitrator has exclusive jurisdiction, including over arbitrability and timeliness, and the Minister may assign several differences to one arbitrator.
• Cost and settlement: each party pays half the arbitrator's remuneration and expenses, and the Minister may appoint a settlement officer before the hearing.

In the construction industry, section 133 also lets a party refer a grievance to the Ontario Labour Relations Board, which may refuse it but, if it accepts, must hold a hearing within 14 days after receiving it (no hearing is needed if the responding party files no material).

Mediation inside arbitration

An Ontario arbitrator may mediate at any stage with the parties' consent and still decide if mediation fails. Under section 50, the parties may at any time agree to send grievances to a single mediator-arbitrator for expeditious, informal resolution, once they agree on the nature of the issues. If mediation fails, the mediator-arbitrator tries to help them agree on the material facts, then decides by arbitration, may limit evidence and submissions, and must give a succinct decision within five days after completing proceedings.

When each one fits

Mediation suits parties who would rather shape the outcome than receive a decision; the ministry describes it as confidential and not subject to the rules of evidence. Arbitration fits when facts are contested, a binding answer is needed, or a party will not compromise. Ontario arbitrators can compel documents and witnesses, accept evidence a court might not admit, and apply human rights and other employment-related statutes. In Ontario, arbitration is also more public: arbitrators must file awards with the Ontario Minister, who is required to publish them.

Other statutes and federally regulated workplaces

The Act does not cover every Ontario workplace: section 3 excludes, among others, police, firefighters (except as Part IX of the Fire Protection and Prevention Act, 1997 provides), employees of colleges of applied arts and technology and, with exceptions, members of teachers' bargaining units. Apart from certain Crown agencies, the Act does not bind the Crown. Bargaining under that 1997 Act has its own appointment and expedited arbitration rules.

Most federally regulated workplaces, such as banks, air transportation and telecommunications, fall under Part I of the Canada Labour Code (Part I does not apply to the federal public service), not Ontario's Act, so the Ontario rules above, including the ministry's mediation and appointment services, do not govern them. The Code requires every collective agreement to provide for final settlement without stoppage of work, "by arbitration or otherwise". If the parties cannot agree on an arbitrator or chair, either may make a written request and the federal Minister of Labour appoints one, even where the agreement has no such provision. Federal arbitrators may, if the parties agree, help resolve the difference without losing the power to keep arbitrating, and can expedite proceedings and extend time limits where there are reasonable grounds and the other party would not be unduly prejudiced. Federal awards can be filed in the Federal Court and enforced as judgments.

Getting help

Zamat Workplace Solutions supports employers and unions with grievance strategy, settlement, mediation and arbitration, and with collective agreement interpretation and administration. Rima Zamat is available for appointment as an independent mediator or arbitrator; in that role she acts independently and impartially and does not represent either party. All appointments are subject to appropriate conflict and independence screening.

Frequently asked questions

The content of this site is general information and is not legal advice. Contacting the practice does not create a solicitor-client relationship. Appointment of a mediator or arbitrator is subject to confirmation and conflict screening.