Conduct of the Arbitration Hearing
The arbitration hearing is usually more informal than a civil trial in court. In Canada, the hearings are rarely recorded by a court reporter, and there is no transcript. The arbitrator usually takes notes by hand or computer, which may be supplemented by electronic recording, as an aid to memory. In the event of judicial review of an arbitration award, the record of the proceedings consists of the award and the exhibits entered at the hearing.
The traditional arbitration hearing proceeds in a manner similar to a court hearing. The parties present opening statements about the case, call witnesses to testify, and then give closing statements with copies of legal authorities. The order of proceeding is determined by the arbitrator. Usually the party with the burden of proof will proceed first to call witnesses and give closing argument. In discipline and discharge cases, the employer will proceed first and present the reasons to justify the discipline. In most other cases, the union will proceed first. In Canada, the closing argument is usually given orally at the conclusion of the hearing after the evidence has been presented. Sometimes, the parties agree to submit closing argument by filing written briefs according to a schedule agreed by the parties, usually within 30 days after the hearing.
The procedure for witnesses is similar to a court procedure. The party calling the witness examines the witness and is subject to such court like requirements as avoiding leading questions. The opposing party then cross-examines the witness, and the party calling the witness may re-examine the witness on matters arising from the cross-examination. Arbitrators may ask questions to clarify answers, but it is not considered acceptable to pursue a line of questioning not raised by one of the parties. The practice is that the arbitrators do not prove the case for the parties, and if the parties do not raise an issue, the arbitrator is to assume that the parties have a good reason not to raise the issue. In a traditional arbitration hearing, arbitrators are expected to be passive listeners to an adversarial style system of questioning by counsel, and not to have an inquisitorial style of questioning.
Arbitrators have authority by legislation to receive evidence not admissible in a court. For example, under Canadian federal jurisdiction, an arbitrator may accept such evidence as the arbitrator sees fit, whether admissible in a court of law or not,[1] and in one provincial jurisdiction there is authority to accept the evidence that the arbitrator considers desirable, whether admissible in court or not.[2] This does not mean that the rules of evidence are not important in arbitration proceedings. Although hearsay evidence may be admitted, it will be subject to the weight to give the evidence, and to the principle established by case authorities that a finding of fact should not be made on the basis of hearsay evidence alone, where there is no exception to the hearsay rule applicable.[3] Arbitrators are also careful to exclude evidence that is properly excluded under a rule of privilege, such as communications made during the grievance procedure on a without prejudice basis, solicitor-client communications and union representative-grievor communications. Confidential business information may be redacted from documents, where the information is not relevant and necessary, or evidence may be accepted on a confidential basis for the purpose only of the arbitration proceedings. Arbitrators make rulings on evidence having regard to the principle of fairness, with consideration to the policy reasons for the rules of evidence.
Witnesses may be excluded from the arbitration hearing. There may be a concern that the witness will be influenced by having heard the testimony of other witnesses. Where requested by one of the parties, witnesses are usually excluded from the hearing room until called as a witness.
[1] CLC, s. 16(c).
[2] LRA NL, s. 88(1)(b)(iii).
[3] Mitchnick and Etherington, supra, note 6 at 125, Brown and Beatty, supra, note 6 at paragraph 3:4310.