Sources of Legal Authority (Part 2 – Labour-Management Arbitration in Canada)

Sources of legal authority

In Canada, labour-management arbitration is both contractual and legislative. Unions and employers usually agree to grievance and arbitration procedures as terms in their collective agreement. There are also contractual terms implied by legislation. Therefore, the powers of arbitrators are derived from both statute and the collective agreement.

Arbitrators in Canada do not have inherent authority in the same manner as the courts.[1] While the jurisdiction of arbitrators arises from statute and from the collective agreement, jurisdiction in a particular case arises from the grievance or the submission to arbitration.[2]

Procedural powers may be exercised by an arbitrator to control the hearing process.[3] Arbitrators have authority to conduct the arbitration hearing in accordance with the rules of natural justice, as it is known in Canada, or otherwise known as due process. For example, one of the requirements of due process is that the parties have a right to know the case they have to meet.

A party can seek relief from any prejudice or unfairness that may result from surprise at the hearing. Usually, relief takes the form of a postponement of the hearing. To avoid unnecessary delay, disclosure in advance of the hearing is encouraged. For example, the union’s grievance form may be vague and lacking in particulars. The employer may need more information about the grievance to properly prepare for the hearing. Previously, I had to deal with this situation by ruling on an employer’s request for particulars. In a court procedure, by comparison, there is usually the option for a party to file a Demand for Particulars if a statement of claim or other pleading is vague and lacking in particulars. The collective agreement and the applicable legislation in my case were silent on the topic of particulars.[4] I held a pre-hearing conference and heard submissions from the parties. The wording of the grievance was vague. The Employer argued that it could not effectively prepare for the arbitration hearing without disclosure of particulars of the case it had to meet. I ordered the Union to provide particulars of the grievance to the employer in advance of the hearing on the basis that I possessed implied authority under my power to conduct the hearing and to give effect to the right of the parties to be heard. Accordingly, the union provided a letter giving particulars, and the hearing proceeded as scheduled.

[1] The inherent jurisdiction of the superior courts in Canada cannot by altered, except by constitutional amendment, MacMillan Bloedel v. Simpson 1995 CanLII 57 (SCC).

[2] On jurisdiction of the arbitrator arising from the scope of the grievance, see Newfoundland and Labrador Association of Public and Private Employees v. Newfoundland 2009 NLCA 15.

[3] For example, see Canada Labour Code, RSC 1985 c L-2, (“CLC”) s 61.

[4] There is express authority to order particulars in other jurisdictions, for example in Ontario, Labour Relations Act, S.O. 1995 (“LRA ON”), s 48(12)(a).