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Practice Guidelines
Preparation
for and Conduct of Expedited Arbitration Hearings and Settlement Meetings
Scheduling and Adjournment of Expedited Arbitration Hearings
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:
- inquire into the dispute;
- assist the parties to settle
the dispute; and
- 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:
- timely exchange of documents;
- timely exchange of particulars;
- 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.);
- discussion with the parties
designed to focus or narrow the legal issues;
- requiring specific submissions
on issues which have not been properly addressed in the materials on
file; and
- 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:
- The public interest in protecting
the right of parties to retain and instruct counsel; and
- 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:
- an expedited arbitrator
has the same authority as all arbitrators to amend the collective agreement's
time limits for referring grievances to arbitration; and
- 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)
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