Introduction
Arbitration is a relatively fast, inexpensive, and flexible way to resolve disputes, compared to litigation in the civil justice system. As an arbitrator and lawyer in Canada, I have had experience with both arbitration and court procedures. I prefer arbitration for many reasons. Perhaps the most important reason is that the arbitration procedure belongs to the parties. The parties select the arbitrator and have control over the procedure in the terms they have agreed upon before the arbitration starts. These terms are found in the agreement to arbitrate or in the collective agreement in the case of labour-management arbitration. There are many variations on the standard arbitration procedure, and the options are limited only by the parties’ creativity.
In this paper I will compare labour-management arbitration with civil litigation in the courts in Canada. Also, I will discuss recent civil justice reform initiatives designed to enhance access to justice in Canada. I conclude that arbitration offers a simplified procedure, with available alternatives for mediation and other dispute resolution methods, that reduces costs, saves time, and supports the objectives of civil justice reform.
The arbitration system works well to provide the parties a final resolution of their dispute through an expeditious procedure conducted by subject-matter specialists. Following are some examples of arbitration procedures from my experience as a labour-management arbitrator and mediator.
One case required the quick resolution of a procedural issue in the week before the arbitration hearing was scheduled to begin. Often, a pre-arbitration meeting or conference call with counsel for both parties will resolve issues before the hearing starts. This case involved the discipline of an instructor following a complaint by a student about inappropriate behaviour. The student had relocated to another province, and the employer wanted the student to testify at arbitration by videoconference. Sometimes, such issues can be resolved by agreement of the parties. However, in this case the union wanted the witness to attend in person, as the complainant’s credibility was a key issue. The union had concerns about its ability to effectively question the witness and the arbitrator’s capacity to assess credibility in videoconference testimony. Both parties needed an answer quickly so that travel arrangements could be made for the witness to attend the hearing in person, if necessary, and preparations could be made for examining the witness. I arranged a meeting that week to hear submissions, considered the legal authorities presented, and issued a written decision with reasons the following day. As a result of the quick decision, necessary arrangements could be made, and the hearing could proceed the following week as scheduled.
In another case, a company and union had agreed to an expedited arbitration procedure to settle disputes about contracting out work. As one of the arbitrators listed on the panel of arbitrators in the collective agreement, I was asked if I could conduct a hearing within the next week. Speed was important because the work the company proposed to contract out was scheduled to start soon. We arranged for a hearing the following week. The parties had agreed to an expedited procedure, limiting the testimony of witnesses and submissions by counsel so that the hearing could be concluded quickly. The arbitration award was issued within five days, as required by the expedited procedure. While the length of the award was limited, it contained the decision and my underlying rationale. The parties received what they needed – an answer to their questions about interpreting the agreement and the facts of the case. Of course, the ability to proceed quickly in such cases depends on the cooperation of everyone involved, including the employer, the union, the legal counsel for the parties, and the arbitrator.
In following articles I will examine in more detail the features of labour management arbitration in Canada and how these features provide a simplified procedure that differs from court litigation. Arbitration in Canada operates under both federal and provincial legislation and rules of court procedure. I will focus on the federal system and the provincial system in my province of Newfoundland and Labrador, with reference to other provinces such as Ontario. Although the arbitration system is very similar across the country, it is necessary to be aware of the applicable legislation and case precedents, as subtle differences may be important in a particular case.