Arbitration Procedures
In labour-management arbitration in Canada, the parties are required by legislation to have a grievance and arbitration procedure in their collective agreements.[1] The grievance procedure is initiated by one of the parties, usually the union but sometimes the employer, by filing a grievance on a grievance form or by letter. The grievance procedure usually requires the other side to provide a written reply to the grievance and for both to take part in a grievance meeting to discuss resolution of the grievance. Offers of settlement at grievance meetings are made on a “without prejudice” basis and considered privileged from disclosure at a subsequent arbitration hearing.[2] If the dispute is not resolved during the grievance procedure, then the parties are required to have a procedure for binding arbitration to settle the dispute. During the term of a collective agreement, strikes and lockouts are illegal. It is an important feature of labour relations legislation that the peaceful resolution of disputes by means of arbitration replaces the disruption of a strike or lockout, with the intent that labour peace will prevail.
If the parties do not have an arbitration clause in their collective agreement, then the legislation states that the collective agreement shall be considered to contain a grievance and arbitration procedure on the terms set out in the legislation. The legislation also provides for appointment of an arbitrator by the applicable Government Ministry in the event the parties do not agree on the chairperson of the arbitration board.[3]
The legislation provides authority for arbitrators to subpoena witnesses, to conduct the hearing, to decide questions of the arbitrator’s jurisdiction, and to issue an order that the parties may enforce with the same effect as an order of the Courts.[4]
Discovery procedures are limited in arbitration compared to court procedures. There is no formal examination for discovery procedure, although the parties may have asked each other questions at meetings during the grievance procedure. Since a party may not compel attendance of a witness at a discovery examination before the arbitration hearing but may subpoena a witness to the hearing, witness testimony may be unknown prior to the hearing. This simplifies the procedure in most cases but can occasionally cause a postponement when a party is taken by surprise at the hearing.
Similarly, there is limited scope for production of documents in advance of the arbitration hearing, depending on the applicable legislation. In Ontario, arbitrators have authority to require any party to produce documents before or during the hearing.[5] In the federal Canadian jurisdiction, at any stage of a proceeding an arbitrator may compel any person to provide information or produce documents after providing the parties an opportunity to make representations.[6]
Parties may adapt the available discovery procedures to meet their needs. In one of my recent cases, the parties were in discussions about accommodation of a disability and needed to review certain documents in the employee’s file from the workers compensation agency. While the hearing had already been scheduled, the parties needed more time for discussions. The quickest procedure, which was acceptable to the agency and the parties, was for me to issue a subpoena ducus tecum, at the request of one of the parties, that required a representative of the agency to attend the arbitration hearing with the documents listed on the subpoena. The file was produced at the hearing without any difficulty, and the parties were able to review the documents and continue their discussions. While there were other procedures available to obtain the file, everyone agreed this was the arbitration system’s most efficient means to serve the parties.
[1] For example, in federal Canadian jurisdiction, CLC s 57, in Newfoundland and Labrador, Labour Relations Act, RSNL 1990, c. L-1, (“LRA NL”) s. 86, in Ontario, LRA ON, s 48(1).
[2] Morton Mitchnick and Brian Etherington, Labour Arbitration in Canada, 2nd edition, (Toronto: Lancaster House, 2012) at 130, Donald J.M. Brown and David M. Beatty, Canadian Labour Arbitration, 4th edition, (Aurora: Canada Law Book, 2008, updated quarterly) at paragraph 3:4342.
[3] CLC, s. 57(2), LRA NL, s. 86(2).
[4] LRA ON, s. 48 (19). LRA NL, s. 90.
[5] LRA ON, s. 48(12)(b), there is no similar authority to order production of documents in Newfoundland and Labrador.
[6] CLC, s. 16(f.1).