BRITISH COLUMBIA
LABOUR RELATIONS BOARD
COLLECTIVE AGREEMENT ARBITRATION BUREAU

Practice Guidelines

Preparation for and Conduct of Expedited Arbitration Hearings and Settlement Meetings

Scheduling and Adjournment of Expedited Arbitration Hearings

Preparation for and Conduct of Expedited Arbitration Hearings and Settlement Meetings

Introduction

The following are the Bureau's guidelines concerning the conduct of expedited arbitration hearings under Section 104 of the Labour Relations Code. The guidelines have been developed with advice from the Joint Advisory Committee that was appointed under Section 83(3) of the Code. In preparing these guidelines it is understood that each arbitrator will conduct hearings in a way which recognises that the issue(s) in dispute and the parties to the dispute are major factors in determining how a particular hearing is to be conducted.

The parties to a dispute which is submitted to expedited arbitration and arbitrators who are appointed under Section 104 of the Code should bear in mind the public policy objectives of expedited arbitration: a prompt and inexpensive adjudicative system for resolving grievances.

Any comments or suggestions that would improve these guidelines and/or would assist in achieving this policy objective would be welcomed and should be forwarded to the Director.

Section 89 (h) now contains an express provision giving arbitrators the authority to:

"encourage settlement of the dispute and, with the agreement of the parties, the arbitration board may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlements." (emphasis added)

This new sub-section may not enlarge the powers which arbitrators possessed prior to its enactment. However, its inclusion in the Code signals the Legislature's intention that, wherever appropriate, arbitrators should encourage voluntary settlements and should be willing to facilitate that result.

Sections 92 (1)(a) and 92 (1)(c) also facilitate the process of expedited arbitration by giving an arbitration board the express power to "determine its own procedure" and to "determine pre-hearing matters and issue pre-hearing orders."

These new provisions of the Code are consistent with and supportive of the overall purposes of our labour legislation as set out in:

  • Section 2 (1)(d): "to promote conditions favourable to the orderly, constructive and expeditious settlement of disputes between employers and trade unions;" and
  • Section 2 (1)(f): "to encourage the use of mediation as a dispute resolution mechanism."

Guidelines for Parties to the Dispute

The primary purpose of these guidelines is to encourage an open exchange of information in the interest of resolving disputes and to provide a fair and expeditious resolution of grievances.

The parties should take all reasonable steps to ensure that grievances which are referred to expedited arbitration are dealt with without undue delay. Section 104(4) of the Code requires the Director to fix a hearing date within 28 days of a grievance being referred to the Bureau. However, with the co-operation of the parties an earlier hearing date may be set.

To expedite both the setting of a hearing date and the conduct of the hearing, the parties should ensure that there has been a full exchange of facts and positions during the steps of the grievance process. In particular, the grievance information section of the Request for Appointment form which is submitted to the Bureau should state clearly what provision(s) of the collective agreement are alleged to have been breached.

When a grievance is submitted to the Director under Section 104 of the Code, the Director will encourage the parties to meet with a Settlement Officer with a view to settling the dispute. To this end, the parties should be prepared to provide a full disclosure of their case to the Settlement Officer. The Settlement Officers' expectations will be that each party will set out its understanding of the matter in dispute, including its position on the facts in dispute and the relevant law.

It will be essential that there be a full exchange of documents between the parties in order to facilitate the Settlement Officer's task and to expedite the settlement process or arbitration hearing.

The Settlement Officer is required under Section 87 and Section 104 to report to the Director within 5 days of being appointed to a case. This statutory time-frame will require the parties to be available at short notice when a settlement officer is appointed.

The parties will seek to narrow the issues of fact and law in dispute. They will also attempt to eliminate any irrelevant matters and to conclude agreements on facts to the greatest extent possible.

If a settlement cannot be reached with the assistance of a Settlement Officer, the parties will be expected to identify the names of any witnesses that they intend to call at the arbitration hearing and will advise the other party of the purpose for which that witness will be called. They will also be expected to identify any preliminary issues that they intend to raise with the arbitrator and the remedy being sought.

While it is recognised that there will be "11th hour" settlements, the parties should make every effort to conclude all grievances which will not be proceeding to a hearing at least two weeks prior to the scheduled expedited arbitration hearing date.

Guidelines for Settlement Officers

Section 104 (5) of the Code sets out the Settlement Officer's mandate to:

  1. inquire into the dispute;
  2. assist the parties to settle the dispute; and
  3. report to the Director concerning the settlement effort.

To carry out this mandate, Settlement Officers will initially focus their efforts on identifying the issues in dispute. For this "fact-finding" process to be effective it is essential that the parties do not withhold from the officer any facts or particulars which are relevant to the dispute. As noted above, Settlement Officers will expect the parties to provide a full disclosure of the facts and their position of the facts in dispute.

A Settlement Officer's involvement in a dispute will be "without prejudice" to either party's position and discussions will be of an informal nature.

Settlement Officers may suggest areas of settlement and will assist the parties to narrow the issues in dispute.

If a settlement is not reached and the grievance proceeds to an expedited hearing, there will not be any disclosure to the arbitrator about the settlement discussions. Any discussions with the Settlement Officer cannot be the subject of evidence at the arbitration hearing.

In reporting to the Director, Settlement Officers will be required to provide an estimate of how many hearing days should be scheduled for those grievances which are not resolved with the officer's assistance. This will enable the Director to fix consecutive hearing days, whenever possible.

Guidelines for Arbitrators

Section 104(8) of the Code confers on an expedited arbitrator all of the power and jurisdiction of any arbitrator appointed under the Code or under a collective agreement.

Case-Management Strategies

When an expedited arbitrator is appointed under Section 104, the arbitrator should consider an appropriate case management strategy.

The parties may need to be reminded that the purpose of any case management strategy is to encourage the exchange of information in the interest of resolving disputes and to provide a fair, expeditious hearing of the grievance.

Case management strategies which may be effective, depending on the nature of the grievance and/or the parties to the dispute, include the following:

  1. timely exchange of documents;
  2. timely exchange of particulars;
  3. discussion with the parties designed to expedite evidentiary matters (e.g., statements of agreed facts, presumptive findings based on uncontested facts, stipulation of certain facts, etc.);
  4. discussion with the parties designed to focus or narrow the legal issues;
  5. requiring specific submissions on issues which have not been properly addressed in the materials on file; and
  6. recommending appropriate settlement initiatives.

Pre-hearing Conference(s)

The major benefit of pre-hearing conferences (which may take place by way of telephone conference calls) is to avoid any unnecessary adjournments and/or procedural delays.

Pre-hearing conference calls may be particularly helpful in reducing delays when the hearing is scheduled to take place out of town and the arbitrator's ability to extend and/or change hearing dates is, therefore, more limited.

This conference could also serve to identify the issues in dispute, discuss hearing procedures, establish time periods for dealing with certain matters and generally assist the parties to proceed in an efficient and expeditious manner.

Pre-hearing Disclosures

Under certain circumstances it may be appropriate for the arbitrator to require the parties to exchange documents prior to the scheduled hearing date. The parties should always be encouraged to identify any witness(es) that they intend to call and the purpose for calling the witness(es). Any preliminary issues or procedural matters should be identified and, if possible, resolved at this juncture.

Conduct of Hearing

Agreed Statement of Facts

Arbitrators should expect the parties, wherever possible, to submit an agreed statement of facts or, at least, to identify those facts which are not in dispute. The parties should also be encouraged to narrow the issues of fact and law which are in dispute.

Brief Opening Statement

Each party should present a concise, comprehensive opening statement which sets out the relevant facts of the dispute and provision(s) of the collective agreement which are alleged to have been breached. Responses to opening statements should identify any facts which are in dispute and any additional facts which are available.

Informal Procedure

Section 92 (1) (a) allows an arbitrator to determine his or her own procedure. Consistent with that authority and the nature of the dispute, expedited arbitration hearings should be informal and every effort should be made to avoid procedural delays.

Encourage Settlement

Arbitrators should exercise their authority under Section 89 (h) of the Code to encourage the parties to mediate, conciliate or otherwise settle the dispute.

Case Authorities

There should be limited use of and reliance on case authorities by the parties. Wherever possible, case authorities should be restricted to the same "industry" as the parties to the dispute.

Witnesses

Witnesses should be called only to give evidence concerning facts or issues in dispute and their testimony should be limited to those facts or issues.

Scheduling and Adjournment of Expedited
Arbitration Hearings

Introduction

The following are some general guidelines concerning the scheduling and adjournment of expedited arbitration hearings under Section 104 of the Labour Relations Code.

Section 104(9) of the Code overrides any collective agreement provision relating to arbitration. This is significant because it removes from the parties the right to have grievances determined by way of an arbitration process to which they have agreed in their collective agreement. It is particularly significant when considered in combination with the statutory prohibition against strikes and lockouts which is contained in Section 84 of the Code.

The combined effect of Sections 104(9) and 84(2) is likely to heighten parties' expectations for a fair and expeditious hearing of their grievances.

Practice

When a proper referral is made to the Bureau under Section 104(3), Section 104(4) requires the Director to appoint an arbitrator and to fix a date for a hearing. The hearing date must be within 28 days from the date on which the grievance was referred to the Bureau.

The Director will adhere strictly to the maximum 28-day time-frame set out in Section 104(4). Consistent with the Interpretation Act, where the 28th day falls on a week-end or holiday, the hearing date will be set for the following business day. However, there may be occasions where it will be necessary for an arbitrator to conduct a hearing on a weekend or statutory holiday.

Adjournments

Once a date has been set for an expedited hearing, arbitrators should grant adjournments only in rare circumstances (see, for example, RE: Hawker Siddley Canada Inc. and I.A.M. Lodge 1922 1989, 7 L.A.C. (4th) 172 (Gorsky).

In the Hawker Siddley case, the arbitrator granted the employer's request for a brief adjournment while noting that the statutory purpose of expedited arbitration is ". . . not merely to commence the hearing . . . but to conclude it with necessary dispatch." (page 174) Although granted a brief adjournment, the employer was required to pay the arbitrator's fees and expenses related to hearing the application for adjournment. The test used by Professor Gorsky in Hawker Siddley was:

" . . . it must be shown that the absence of necessary witnesses or advisers is beyond the control of the party seeking an adjournment" (p.174)

In RE: University of Windsor and S.E.I.U. Local 210 1992, 30 L.A.C. (4th) 62 (Roberts), the arbitrator dismissed an application for an adjournment by an intervenor in a promotion grievance. The Union objected to the application for adjournment and argued that the strict time limits associated with expedited arbitration meant that all parties had no more than two weeks to prepare for a hearing.

This case discusses the apparent conflict between two fundamental issues:

  1. The public interest in protecting the right of parties to retain and instruct counsel; and
  2. the public interest in ensuring the speedy resolution of grievances through expedited arbitration.

The arbitrator concluded that a notice period of about two weeks for expedited arbitrations would generally be adequate for the parties. This conclusion was consistent with the views of the arbitrator in RE: Lawson Mardon Graphics Ltd. - and - G.C. I. U. local 500 1992, 25 L.A.C. (4th) 50 (Kaufman).

Arbitrators should also consider the practice of the Labour Relations Board in scheduling hearing dates under Section 5(2) of the Code. When scheduling such hearings, the Labour Relations Board does so without giving advance consideration to the calendars of the parties or their counsel. A discussion of this practice is contained in Bhandal Drywall Ltd. BCLRB No. 42/86 and North Shore Taxi (1966) Ltd. BCLRB No. 38/93.

Timeliness

In RE: City of Ottawa - and - C.U.P.E. Local 503 1993, 34 LAC (4th) 88 (Jamieson), the employer raised a preliminary objection to the arbitrator's jurisdiction based on the timeliness of the union's request for statutory expedited arbitration.

The employer's preliminary objection was dismissed on the following reasoning:

  1. an expedited arbitrator has the same authority as all arbitrators to amend the collective agreement's time limits for referring grievances to arbitration; and
  2. the statutory time limit within which requests for appointment of arbitrators must be made cannot be changed, but time limits in the collective agreement can be extended where reasonable grounds exist for the delay and there is no prejudice due to the delay.

It is important to note that Section 104 (3)(a) of the B.C. Code prohibits a referral to the Director by the party which has already referred a dispute to arbitration under the collective agreement. However, the City of Ottawa case is of interest on the general issue of timeliness.

After discussing the public policy objectives behind expedited arbitration (a prompt and inexpensive system for resolving grievances), the arbitrator concluded that the statutory time limits serve primarily to prevent abuses of the system. For that reason he stated that arbitrators ought to consider extending time limits based on the merits of each case.

The broader context for the arbitrator's award was described in the following manner, at page 95:

To put this in its proper perspective, the starting point is to acknowledge that it is a matter of grave concern to labour relations communities in every jurisdiction in Canada, that grievance/arbitration procedures are not meeting the intended requirements of parties to collective agreements. Simply put, this need was to provide a speedy and informal forum for the resolution of disputes. Unfortunately, the whole system has become overburdened, overly legalistic and dreadfully slow. Considering that the main focus for these dispute resolution mechanisms being mandatory in every collective agreement under s. 45 of the Act, is not only on harmonious labour relations, but also to guarantee industrial peace during the lifetime of collective agreements by providing a quid pro quo for work stoppages, the effectiveness of the arbitration process in general, clearly becomes a matter of public interest.

June 1994 (updated Sept. 2000)


CAAB Home | FeedbackLRB Home