Arbitrators
Selection of the Arbitrator
In labour-management arbitration in Canada, the parties select the arbitrator by agreement or ask an appointing agency to appoint the arbitrator. The parties have control over selection of the person who makes the decision, subject to the collective agreement and legislation. In Canada, the most common methods of selection are: (1) ad hoc appointment, where the parties agree to select an arbitrator for a particular case; (2) selection from a list of arbitrators agreed upon in advance by the parties and in accordance with a process for selecting from the list in the collective agreement, usually based on the availability of the arbitrator; and (3) in the absence of agreement, asking the government ministry of labour to appoint an arbitrator from a list used for that purpose.[1] Arbitrators on the Government’s list are selected according to their qualifications. Training programs have been developed in some provinces to train arbitrators who are placed on the list upon successful completion of the program.[2]
Arbitrators are independent, impartial, and neutral. The accepted practice in labour-management arbitration is that arbitrators maintain neutrality by not representing employers or unions. This is an accepted requirement to be appointed to lists of arbitrators used by appointing agencies. For example, to be added to the list of arbitrators used by the Labour Relations Agency of the Government of Newfoundland and Labrador, a person must not have represented employers or unions for at least one year. Arbitrators are also very careful to avoid conflicts of interest or appearances of bias in any particular case by withdrawing from the case or by informing the parties of a potential conflict and seeking their approval to continue as the arbitrator. Arbitrators follow codes of professional conduct in this regard, such as the Code of Professional Responsibility of the National Academy of Arbitrators, the American Arbitration Association, and the Federal Mediation and Conciliation Service.[3]
Parties to litigation do not usually have any control over the person selected to decide their dispute. A judge will be appointed by the Court. The parties do not have any choice over the appointment, and the judge assigned to the case will not be a person whom they mutually selected. Judges are not usually assigned to a case based on specialist expertise, although there may be exceptions such as in family court or tax court.
Qualifications of the Arbitrator
Arbitrators are usually selected based on subject matter expertise. Labour-management arbitrators have expertise in labour relations, labour law, collective agreement interpretation, collective bargaining, and related subject areas. Courts in Canada have commented on the expertise of arbitrators in judicial review applications. Having regard for the expertise of arbitrators, the courts tend to defer to the decisions of arbitrators when applying the standard of reasonableness in a judicial review application. The specialized knowledge of arbitrators was accepted by the Supreme Court of Canada in a ruling that the Ontario government could not appoint interest arbitrators to decide terms of collective agreements where those persons were not already acceptable to the parties as independent, impartial arbitrators.[4] An arbitrator’s specialized expertise is important to the parties.
The expertise of arbitrators also underlies the expanding jurisdiction of arbitrators in Canada. Courts accept the authority of arbitrators to decide questions of general law, including applications of the Canadian Charter of Rights and Freedoms and in applications of employment-related statutes.[5] As such, the Courts recognize the expertise and experience that arbitrators bring to bear on those cases.[6]
Costs of the Arbitrator
Typically, the fees and expenses of the arbitrator are shared equally by the union and the employer in labour-management arbitration. This is a requirement of labour relations legislation when the parties have not agreed on this term in their collective agreement.[7] The parties may agree in their collective agreement on a different arrangement, such as having the loser pay for the arbitrator’s fees or having the arbitrator decide who pays the fees. The agreement may also list the factors to be applied by the arbitrator when deciding who pays. However, the most common arrangement is that the costs of the arbitrator are shared equally. When there is a three-person arbitration board, each party will pay for the fees and expenses of its own nominee to the board, and the cost of the chairperson of the board is shared equally by the parties. The expenses of the arbitrator may include the cost of the meeting room used for the hearing (such as a hotel meeting room) and the travel expenses of the arbitrator when the hearing is located away from the arbitrator’s office.
In a court dispute, the fees and expenses of the judge are not paid by the parties but are paid by the government. In Canada, the federal government pays for the salaries of judges of the Supreme Court of Canada, the Federal Court, and the superior courts in each province.
While the fees charged by the arbitrator is not a cost encountered in civil litigation, the total cost of arbitration is usually much less than litigation, with the added advantages of the speed and adaptability of the arbitration process.
[1] For example, the Federal Mediation and Conciliation Service.
[2] There were recent arbitrator development programs in Ontario in 2013-2014 and in Newfoundland and Labrador in 2015.
[3] http://naarb.org/code.asp.
[4] C.U.P.E. v. Ontario (Minister of Labour) 2003 SCC 29 (CanLII).
[5] See Weber v. Ontario Hydro (1995) 2 S.C.R. 929 (SCC), Parry Sound (District) Social Services Administration v. OPSEU Local 324 2003 SCC 42 (CanLII).
[6] Rt. Hon Beverley McLachlin, Chief Justice of Canada, Keynote Address: Labour Arbitrators and the Courts: an Evolving Relationship, in Arbitration 2013: a Tale of Two Countries (NAA Proceedings of the Sixty-sixth Annual Meeting), (Arlington: Bloomberg BNA, 2014).
[7] LRA NL, s. 86(2)(g), s. CLC, s. 63(b).