The Honourable Warren K. Winkler, Chief Justice of Ontario
In the late nineteenth century Richard Ely wrote about “the labor problem” in American society: its causes, its manifestations, and possible cures.1 In referring to the “labor problem,” Ely was not portraying labour itself as a problem. On the contrary, he was describing the problem of conflict between workers and the owners of capital. Ely was ahead of the industrial psychologists who followed him in subsequent decades, for he perceived that there is no real “cure” for the labour problem, in the sense that industrial relations are ultimately human relations. All the challenges that humans encounter in getting along with each other end up being played out, in various ways, in our working lives.
Ely was equally perceptive in discerning a potent remedy for the industrial conflict that pervaded society in the wake of the industrial revolution: arbitration. The purpose of arbitration, he wrote, was to prevent strikes and lockouts by providing a mechanism for “the peaceful adjustment of difficulties between wage-receivers and their employers.”2 So sanguine was he about the propitious properties of arbitration that he called the introduction of arbitration in industrial relations “an epoch-making event in the history of applied ethics.”3
But what exactly was this labour problem that stood in need of a cure? The problem, according to Ely, was that “men are getting so far apart that they do not understand one another, and consequently have no mutual sympathy and goodwill.”4 Ely was confident that arbitration could cure this state of estrangement between workers and employers—in part, merely because resentment would often dissipate in the face of personal contact between the parties.
If this sounds familiar, it should. In many ways, we have come full circle with the arbitration saga. Arbitration began as a speedy, cost-effective, fair, and efficient means of resolving disputes between employers and unions. But over the decades—indeed, now centuries—since its first adoption in industrial society, arbitration has become, as Paul Weiler noted, a “victim of its own success.”5 Unions and employers began turning to arbitration as the preferred means of resolving their disputes. The arbitration system has become overburdened in a number of ways and for a number of reasons. The system may not have ground to a halt, but the parties feel as though they are walking through water. In the United States, as early as 1958, critics were warning that arbitration was straying from its original goals; it was becoming the antithesis of speedy, cost-effective, fair, and efficient justice.6
The problems with the arbitration system today are neither uniform nor universal. However, there are some familiar complaints: delay that permeates the grievance procedure and the process of advancing grievances to arbitration; delay in securing the appointment of preferred arbitrators; the costs to both parties associated with delay; the growing costs of the arbitration process itself; and the growing formality of the process (what Rubin and Rubin call “creeping legalism”7). These problems have resulted in a backlog of grievances; a turgid arbitration process that may be impoverishing the parties, especially unions; and a deepening estrangement between the parties.
Clearly, a backlog of disputes can lead to a dysfunctional relationship. Obviously, this is not in either party’s best interest. Nor is it in the public’s best interest to have employer-union relations soured by unresolved conflicts that can spill over into the economy at large and disrupt the production of goods and services. In today’s challenging global economic conditions, we need strong businesses and workplaces that are focused on production objectives, not on nursing their grievances.
As a method of conflict resolution, arbitration not only has great potential; it has a proven track record. But some reform is in order if arbitration is to remain a viable and attractive option for some parties. We need not “throw out the baby with the bath water.” We do need, however, to return to our roots—that is, to go back to the founding of the arbitration system, if for no other reason than to remind ourselves why arbitration became successful as a cornerstone of industrial justice.
The following section provides a broader historical context for the development of Western arbitration systems for labour disputes. This is followed by a description of the origins and characteristics of labour rights arbitration in Canada, and then in Ontario—the main focus of the paper. The analysis outlines the main characteristics of what began as the “golden age” for rights arbitration. While not perfect, this initial period was nonetheless “golden” insofar as the main purposes of arbitration were largely fulfilled, and the process was very effective from the viewpoint of both the parties and public policy-makers.
The analysis then turns to the main changes in the arbitration system, and the factors that began to transform it, by the 1970s. Notable among these factors were the exclusion of judges as arbitrators, the expansion of the legal jurisdiction for arbitrators, and cultural changes that entailed a shift from an industrial relations–based, to a litigation-based, process. The paper then outlines the main principles that are needed to underpin an effective system of rights arbitration, and the reforms required to remedy the system’s deficiencies and correct the current trajectory to better meet the needs of labour and management and to fulfill the original objectives of labour policy.
Arbitration is hardly a new conflict resolution mechanism. As it turns out, arbitration has been around in one form or another for some time. But it is fair to say that labour arbitration as we know it is an outgrowth of industrial society.
Ely notes that arbitration was introduced in France by Napoleon the First in the early nineteenth century.8 Tribunals called conseils des prud’hommes were established, consisting of an equal number of management and employee representatives elected by each side. Presiding over each tribunal was a president and vice-president, who were appointed by the government. These tribunals were further divided into two bureaus:
the bureau général and the bureau particulier. The latter functioned as a conciliation board, and would forward unresolved complaints to the bureau général for an arbitrated decision. These decisions were binding and enforceable in the same manner as were court decrees. The Napoleonic arbitration tribunals managed an impressive caseload. In 1878, for instance, 35,860 cases were brought before 115 conseils; of these cases, 28 percent were withdrawn, 51 percent were settled by conciliation, and approximately 20 percent were referred to the bureau général for binding arbitration.9 Belgium adopted a similar system, though apparently with less success.10
The English likewise embraced arbitration, but opted for a more voluntary system. Presumably they were able to do so because strong labour unions had less need for the paternalistic intervention of government. In any event, the glove and hosiery trade established a permanent board of arbitration and conciliation in Nottingham in 1860.11 Other industries followed suit: the lace trade, the iron trade, and mining, among others. The English tribunals featured representatives chosen by each side with a jointly chosen impartial umpire, usually someone not connected with the trade, whose decision was final, though binding only “by honour.” Notwithstanding the non-binding nature of such decisions, according to Ely enforcement was not usually a problem, since muscular unions were capable of bringing the workers into line. In addition, parties began to insert clauses in their contracts which specified that differences were to be submitted to a particular board.12 This appears to be the origins of permanent arbitration boards, which remain popular in some industries today.
Ely was not confident that a French-style, government-controlled system was feasible in the United States.13 And history has proved him right in that respect. However, he was of the view that parties could be encouraged to adopt a system of binding arbitration voluntarily. Again, history has proved him right, at least with respect to certain key industries in the United States. Sylvester Garrett, former chairman of the Board of Arbitration, United States Steel Corporation and United Steelworkers of America (who also served as impartial chairman for the U.S. Postal Service and the Postal Workers Union—a sort of chief arbitrator position) identifies the 1930s and 1940s as the key growth period for permanent arbitration systems in the United States. In this period several industrial sectors—steel, longshoring, the automotive industry, and the needle trades, for example—developed permanent arbitration systems that suited their particular needs. These sectors often designated a permanent industry arbitrator who would resolve disputes arising under their collective agreements. Other interstate companies, such as Greyhound, developed panels of arbitrators who were rotated. Some national organizations, such as the postal service and postal workers’ unions, used a panel of regional arbitrators with a permanent chairman.14
In Canada, the history of labour arbitration followed a different trajectory. Any expectation of voluntary arbitration was lost in the first and greater struggle for compulsory collective bargaining. Until mandatory collective bargaining legislation was in place, labour had no real voice.
Our modern labour legislation in Canada can be traced back to Privy Council Order 1003, a wartime measures act passed in 1944, although, as Laurel Sefton MacDowell has pointed out,15 PC 1003 was an end as well as a beginning, since it marked the culmination of labour’s struggle for recognition and influence in policy-making.
The war years in Canada were a period of serious industrial unrest, characterized by strikes and by other forms of conflict between labour, on the one hand, and business and government leaders on the other hand. It was also a period of tremendous growth in the labour movement, with union membership doubling during the war years. The labour surplus going into the war was absorbed by the war effort, and quickly became a labour shortage: conditions that were very favourable for trade union organizing.16 Nevertheless, favourable organizing conditions did not translate into success in gaining recognition or collective bargaining rights.
The government’s wage control policies were a flashpoint for labour’s discontent. More generally, however, the government adopted a conciliatory approach to business, “its wartime ally in developing the war economy.”17 The King government was thus unwilling to endorse compulsory union recognition or compulsory collective bargaining, apparently accepting the prevailing management view that collective bargaining legislation would encourage union growth and labour unrest.18
Discontent escalated to outright opposition after the failure of the Kirkland Lake strike by northern miners in the winter of 1942. Kirkland Lake is viewed by labour historians as something of a low point in wartime industrial relations. However, the failed strike helped pave the way for PC 1003 to the extent that it unified fractured interests into a labour movement united in its opposition to the federal government’s labour policies. MacDowell suggests another benefit to the labour movement that emerged from Kirkland Lake: the migration of union activists to southern Ontario, where they assumed union leadership positions in expanding war industries.19
The federal government changed its tune in light of several critical events:
The Ontario Collective Bargaining Act became the precursor to PC 1003. The predominant features were
While modelled on the American Wagner Act of 1935 and informed by the New Deal philosophy which suffused that legislation, the Ontario Act featured a labour court rather than a labour board to administer the statute, with a rotating roster of judges who sat for two-week periods. The federal government later rejected this mechanism and opted for a quasi-judicial administrative tribunal instead.21
The results of the August 1943 Ontario provincial election provided another catalyst for a change in federal labour policy, for the King Liberals were dismayed when the CCF party elected enough members to form the official opposition.22
The final act in setting the stage for a national labour code was the August 1943 report of the government’s own inquiry into the causes of labour unrest, the National War Labour Board Inquiry, which recommended a new labour code featuring compulsory collective bargaining.
The enactment of PC 1003 in February 1944 marked a turning point in Canadian industrial relations, for the legislation became a model for post-war labour legislation in Canada. In particular, PC 1003
Many of these features were also part of the Wagner Act.23 The permanency of these measures was ensured by the post-war enactment of the Industrial Relations Investigation Act at the federal level, which in turn became a model for provincial labour statutes.24
MacDowell summarizes some of the overall gains for employees from the PC 1003 legacy, including a measure of job security in the form of the seniority principle, improved job conditions on the shop floor, and a grievance and arbitration procedure for resolving disputes. With the introduction of the dispute resolution procedure, the legislation introduced a degree of industrial democracy.25
The legacy of PC 1003 and the contribution of post-war labour legislation is the statutory guarantee of a grievance arbitration procedure, backstopped by arbitration.26 This was the original quid pro quo or compromise that became embodied in model labour statutes: a prohibition on mid-term strikes and lockouts in exchange for a guaranteed dispute resolution procedure. This seminal bargain had a dual purpose: to secure industrial peace; and to provide industrial justice that is fair and expeditious, and that serves a conflict resolution function.
Among other consequences, the institution of statutory labour boards effectively removed the resolution of labour disputes from the courts to administrative tribunals. These labour boards were charged with administering and enforcing all aspects of labour legislation.
When Ontario adopted the Collective Bargaining Act in 1943, a labour court, which was part of the High Court of Ontario, had exclusive jurisdiction to administer that Act. The labour court determined matters of certification, decertification, and configuration of appropriate bargaining units, and could reinstate discharged employees.
By the time the federal government enacted PC 1003, some valuable lessons had been learned from the Ontario experience. The court system with its rules of evidence and proof was not well suited to the kinds of issues arising under the legislation, such as bargaining unit configuration. The judges lacked expertise in labour relations matters and rotated too frequently to acquire such expertise. In addition, the labour court was criticized for its formality and “legalism.”27 Although the labour court fulfilled a need, the experiment was abandoned in Ontario.
In 1944, Jacob Finkelman was appointed as the first chair of the Ontario Labour Relations Board. He brought to the position a wealth of experience and knowledge in labour law, having been employed for fourteen years as a labour law professor at the University of Toronto. Professor Finkelman was highly respected as the foremost leading authority on labour law at that time. He served as chair of the Ontario board from 1944 to 1947, and again from 1953 to 1967. He then became first chair of the federal Public Service Staff Relations Board and served in that capacity from 1967 to 1976.
Professor Finkelman’s appointment as chair of the Ontario labour board marked the end of the “judicialization” era in labour disputes and heralded a significant new development: the advent of labour relations expertise in the resolution of labour disputes. It was a trend that took hold not only in labour boards but also in grievance arbitration. Today we take it as a given that labour arbitrators are not only neutral third parties but also bring to their task the specialized knowledge necessary for the fair, intelligent, and informed resolution of disputes between employers and unions.
As discussed above, the various post-war labour statutes in Canada all guaranteed a dispute resolution procedure. Most now contain a model arbitration clause as well, which is deemed to form part of any collective agreement that does not contain a grievance arbitration procedure. Thus armed with both a contractual guarantee and a statutory guarantee, the parties were well equipped to obtain a final resolution to their differences in a speedy, cost-effective, fair, and efficient manner, and they made good use of this system.
Some organizations used an ad hoc system of labour arbitration, while many large organizations developed permanent, sometimes rotating panels of arbitrators. Initially the norm was tripartite panels, with the parties each appointing a nominee; a neutral chair would preside over the panel, and the chair’s decision would become the arbitration board’s decision in the event that neither nominee concurred. As time and experience marched on, many workplaces sought to reduce the expense and delay associated with tripartite panels and moved to a system of sole arbitrators instead.
In general, the system of grievance arbitration worked well in delivering on its goals of speedy, cost-effective, fair and efficient justice for the parties. Grievance arbitration was responsive to the needs of workplace parties in a way that courts could never be.
However, as Paul Weiler noted some thirty years ago, labour arbitration became a victim of its own success. In many large workplaces the grievance system became clogged with too many unresolved disputes, which often took years to resolve. There were likely several reasons for the increased delays involved. But from the outset at least some of the delay could be attributed to parties waiting for the services of a few select, busy arbitrators. To counteract problems of delay and availability, in Ontario the government stepped in and did two things: it enacted a system of statutory expedited arbitration, and it began to train arbitrators.
The Ontario government adopted a statutory expedited arbitration system in 1979, as an alternative to parties’ arbitration systems under their collective agreements, by amending the Labour Relations Act.28 The overall goal was to reduce the costs of arbitration and to reduce delay by imposing time frames for convening the hearing after the Minister appoints a sole arbitrator and by imposing time frame guidelines for issuing awards. At the same time, the government began a training program for arbitrators, presumably to meet the growing demand for the services of arbitrators.
Professor Joseph Rose’s research on the early experience with statutory expedited arbitration in Ontario found that the expedited alternative was very popular from the outset. 29 It reduced delay within the internal grievance procedure, promoted settlements through a system of mediation, and provided hearings and arbitration awards more quickly.30 Later amendments to the Ontario LRA further streamlined the statutory process by adding a provision for mediation-arbitration, s. 50.
In the meantime, however, countervailing pressures were afoot. What we now tend to refer to as “the Weber effect” actually has its roots in an earlier case, the landmark decision of Professor (as he then was) Bora Laskin in Polymer.31
In the first of two decisions the Laskin board found the union liable for an illegal strike. In the second Polymer decision the board awarded damages as the remedy for the illegal strike. The issue in the second hearing was whether the arbitration board had jurisdiction to award damages, for the union had argued that the board did not have that power. In support of this view the union pointed to the familiar “do not alter/amend” constraint on arbitral jurisdiction in the collective agreement, as well as the “intention of the parties” principle—that is, if the parties had wanted to confer such jurisdiction on the arbitrator, they would have expressly said so.32 Either and both of these principles of interpretation had been invoked by a well-entrenched school of thought on the matter of arbitrators’ jurisdiction, namely, that an arbitration board’s remedial authority was limited to declaratory relief in cases involving injury to one of the institutional parties.
The Laskin board held firm to an emerging and competing school of thought: that an arbitrator’s remedial authority was much broader than declaratory relief and that, in fact, the arbitrator had authority to provide such relief as would be necessary to redress violations of the collective agreement, including the awarding of damages. This authority existed notwithstanding the absence of any express provision to that effect in the agreement, as a necessary adjunct to the statutory command that arbitration provide for the final and binding resolution of disputes between the parties.
The board held that the awarding of damages was not a question going to jurisdiction, but rather a matter of the powers of an arbitration board once it was properly seized of a dispute under a collective agreement. Referring to a judgment of the Permanent Court of International Justice, and that court’s pronouncement that “[r]eparation … is the indispensable complement of a failure to apply a convention and there is no necessity for this to be stated in the convention itself,” the Laskin board said,
This board would apply the phrase “indispensable complement” to the violation found to exist here. What the Permanent Court saw as a principle of civilized conduct to govern the affairs of “sovereign” nations is certainly no less applicable to parties to a collective agreement. Once the parties have submitted themselves to the jurisdiction of a board of arbitration authorized to adjudicate on an alleged violation of a collective agreement obligation, they have accepted the full range of the tribunal’s adjudicative powers (unless expressly limited) which are immanent in such adjudication. To seek to thwart their exercise by appeal to a fictional intention of the parties is to seek indirectly to nullify the duty of observance and performance of collective agreement terms.33 (emphasis added)
Polymer was an important decision for labour arbitrators since it appeared to broaden the scope of arbitrators’ remedial jurisdiction beyond the relatively passive exercise of declaring a breach of the collective agreement. At a more theoretical level, the decision facilitated discussion and debate about the proper role of an arbitrator, particularly the “judicial” model versus the “labour relations physician” model.34
Polymer was followed by generations of subsequent arbitrators, and its central message of a broad remedial authority for labour arbitrators became so accepted and so self-evident that today it is almost tautological.
Then came Weber v. Ontario Hydro.35 In Weber, the Supreme Court held that a labour arbitrator has exclusive jurisdiction over all aspects of a obligations provided by such statutes as the Human Rights Code38 and the Employment Standards Act (ESA)39 were incorporated into each collective agreement, and so the arbitrator had jurisdiction over them.
Section 48(12)(j) of the Labour Relations Act, 1995 and the Supreme Court of Canada’s progressive interpretation of it had the profound effect of including all cases involving human rights and ESA employment rights within the purview of arbitration. The affirmation of labour arbitrators’ power and duty to apply “the law of the land” has also led to the recognition that arbitrators have jurisdiction to grant equitable remedies such as rectification of the collective agreement.40
The result of these jurisprudential developments was the salutary avoidance of fragmentation in the resolution of disputes. No longer did employees have to access multiple administrative tribunals in search of multiple, sometimes conflicting decisions and remedies. Arbitrators could deal with occupational health and safety claims, human rights claims, defamation claims, and basically any claim that related to a grievance grounded in a collective agreement.
The expansion of an arbitrator’s jurisdiction as a result of the Weber and Parry Sound decisions has also meant that a significantly larger volume of cases are now routed to arbitration rather than to the court process. Since many labour disputes deal with complex legal issues in such areas as human rights, employment standards, assault, and defamation, the parties have increasingly felt that they needed representation by lawyers at arbitration hearings, to ensure that all legal arguments are adequately argued at the pre-hearing and hearing stages.
While the labour arbitration system grew substantively, it shifted from a process unencumbered by complexities and costs—and which was intended to provide a timely decision on the merits—to a system that overemphasized process over outcome. In a vast number of unionized workplaces, grievance arbitrations can often take months to get scheduled and sometimes years to be heard. When they are finally heard, whole days can be consumed at the outset with a series of technical objections and preliminary matters—a kind of perpetual prologue, with the parties never reaching the first act.
Added to these complications are the occasional parties who approach the hearing process as a battleground overloaded by an endless stream of disclosure requests, lengthy witnesses, evidentiary objections, expert evidence, and judicial review. Depending on the complexity of the case, there can also be a lengthy time lag between the hearing and the rendering of the decision. Of course, a judicial review of the decision also results in further delays and costs to the parties. In this environment, it has become very difficult to obtain what grievance arbitration originally promised to deliver in the first instance: a fair, final, and timely decision on the merits.
This is in marked contrast to the early model of grievance arbitration in which hearings were brief and uncluttered by a plethora of procedural and preliminary issues. The focus was on getting the parties a fair and functional decision so that they could “get back to business.” The turnaround time for issuing decisions was short. Decisions were final; they were not subject to routine review by the courts. Not surprisingly, for the various workplaces that rely on labour arbitrations to effectively and efficiently resolve their disputes, this shift has been undesirable and antithetical to the original shared goals for the system.
Three dominant factors have been at work in moving labour relations dispute resolution away from its fundamental goals—all of which are foreshadowed in the historical discussion above. First, with the expanded jurisdiction of arbitrators came the inevitable increase in the complexity and the volume of grievance arbitrations.
Second, the shift from the pragmatic county court judges to young (often professor) arbitrators in the mid-1960s changed the tenor of both the hearings and the decisions to a more academic discourse. County court judges stopped hearing arbitration cases in 1967 by parliamentary initiative. It appears that the last reported decision heard by a county court judge was on July 3, 1968.41 (Refer to Appendix A for the legislative history and parliamentary discussion related to this key development.)
The final contributing factor, and perhaps the most important, is the incremental but powerful cultural shift in the way that grievances are handled, from the early stages through to the point of final decision.
While these three factors can explain most, if not all, of the causes of the very real increase in costs and delays in the resolution of grievances, it is the undue legalization of the system that has had the most profound and negative effect on timely, affordable, and fair dispute resolution. This cultural shift has led the sector to mistakenly adopt the most cumbersome attributes of our civil litigation process; and, thus, labour dispute resolution has become too slow, costly, inflexible, and legalistic to meet the true needs of the parties.
There can be no doubt that the recognition by the courts of the expanded jurisdiction of arbitrators and the widening of their remedial powers has resulted in an increase in the volume and complexity of cases heard by labour arbitrators which, in turn, has contributed to an increase in delays, backlog, and a “creeping legalism.”42 Coupled with the transition from knowledgeable county court judges to young labour relations academics and then, more recently, to lawyers with a specialization in labour law, the tendency to legalize the process has been very real.
These developments taken on their own have been, nonetheless, quite beneficial overall for the parties. Arbitrators now enjoy a wide scope of authority to resolve the full range of issues giving rise to a grievance, decisions are more holistic, and arbitrators are able to provide the parties with a much-needed, expert, “one-stop shop” approach to resolving all related disputes. The expanding jurisdiction of the non-judicial, expert decision-makers is a clear and positive acknowledgement by the courts and government that the arbitration community has a proven track record in resolving the wide range of disputes that arise in this sector.
But the present system of grievance arbitration can be slow, expensive, and detached from the realities of the workplace. Despite the advancements gained from the expanded role and increased expertise of the arbitrator community, this trend, if permitted to continue unimpeded, puts the system in danger of becoming dysfunctional and irrelevant. A major failing in our modern labour arbitration system can, therefore, be distilled down to the growing lack of proportionality and over-formalization of the arbitration process.
Disproportionate representation can take many forms. In this context, proportionality means the practice of maintaining a reasonable balance between the time and money expended on the case on the one hand, and the significance of the case to the parties and the value of what is involved on the other. The lack of proportionality in the carriage of a case can include the adding of needless steps at the outset of a hearing or the calling of unnecessary evidence; or it can be the failure to limit the expectations and thus the demands of a client, allowing the client to effectively take carriage of the case. While often difficult to put into practical terms, proportionality is a critical component of ensuring that the parties to a dispute get meaningful access to just, timely, and affordable results.
Proportionality has become the leading issue in civil justice reform. It is at the heart of the civil justice system’s rigorous examination of how to enhance access to justice. Its importance is underscored by the changes made in Ontario to the Rules of Civil Procedure that mandated proportionality for practitioners. Lawyers are now required to consider proportionality in preparing and presenting their cases. In the world of labour relations, however, there is no statutory or other binding requirement for proportionality.
There is a clear link between the decline in proportionality and the formalization of labour arbitrations. The adversarial system, upon which our arbitration system is based, often discourages proportionate behaviour and encourages protracted, cumbersome, and costly litigation steps. There are well-entrenched aspects of the typical grievance arbitration process that have developed into systemic barriers to accessing timely justice. Consequently, procedural delays and backlogs plague many arbitration systems and routinely occur at numerous points along the path to dispute resolution. Regrettably, the entrenchment of these often unproductive practices has become the norm in many relationships, rather than the exception.
Procedural delays often begin at the early stages of the grievance procedure and may be attributable to multiple steps, dilatory advancement through the steps, or system overload where the number of grievances greatly exceeds the processing capacity of management and union representatives.43 The setting of hearing dates for matters that have successfully made it through the early grievance stages may also add to lost time because of the lack of availability of the various persons involved. Scheduling hearing dates can be logistically challenging. Hearing dates are often booked years, not months, into the future.
Delay can also be ascribed to matters where the parties are represented by legal counsel and where the case is heard by a tripartite board.44 A portion of the delay in getting to arbitration could also be linked to undue reliance on a select number of arbitrators. Often parties are prepared to wait for a preferred arbitrator with limited availability. In his examination of delay in grievance arbitration, Kenneth Thornicroft found that delay was often caused by the difficulties arising from booking busy arbitrators.45 The busyness of arbitrators has a further effect on delay later on in the process in terms of the delivery of a timely award. Where a tripartite panel hears a case, the process of issuing an award will predictably be even more protracted.
By all accounts, the arbitration itself has increasingly become more like a full-blown trial and less like an innovative, informal forum that quickly and fairly achieves workplace justice. As noted above, the exhaustive list of witnesses, objections, adjournments, refusals by counsel to make concessions that they should be making, and the general inability of counsel to exercise the necessary judgment about what will help their case prolong hearings well beyond what is necessary and affordable. This is often exacerbated by inexperienced counsel.
The lack of proportionality in the conduct of a hearing does not, however, fall only at the feet of those who have carriage of the file. Rather than providing the necessary cues and guidance to keep the parties focused on the real issues in dispute, arbitrators themselves at times fall prey to this deleterious behaviour. Arbitrators can fall short of their role if they fail to take the necessary control over the hearing process.
Arbitral awards have also become increasingly intellectual in nature, lengthier and, at times, too esoteric to meet the needs of those working on the front-line. There are no doubt times when a particular case requires fulsome reasons. But, for most grievances, the significance of the case does not outweigh the cost and the delay of resolution. In most grievances, the parties simply need a timely decision on the merits.
Yet, it is unrealistic to think that we can return to the labour arbitration model that was used in the immediate post-WWII period, nor would this be desirable: there has been an evolution in the substantive approach to grievance arbitration, the Weber effect is here to stay, cases are more complicated, and parties tend to be more sophisticated in their presentations. Nevertheless, steps can be taken to restore the original effectiveness of grievance arbitration to resolve disputes in a speedy, cost-effective, fair, and efficient manner without hampering the real strides that have been made in this area.
If the goal is to return to the fundamentals of labour arbitration, proportionality must be understood by all involved as the defining feature of any modern dispute resolution regime. This presumption is reasonable and necessary if a more successful labour relations dispute resolution system is to evolve.
Within the labour relations community, there has been a growing recognition of the need to remedy the systems’ deficiencies and better meet the needs of workplaces. Increasingly, parties are seeking to find ways to reduce or eliminate disproportionate practices. While fully aired grievances are a laudable objective, parties (especially those with a large workforce and therefore a potentially greater number of grievances) are increasingly eliminating some of the steps in the grievance procedure or reducing the time intervals between steps. Parties are voluntarily adopting deadlines beyond the grievance procedure in relation to the scheduling of hearings, the selection of arbitrators, and the issuing of awards. Finally, parties are embracing mechanisms that compress the hearing procedure itself such as eliminating the use of tripartite panels in favour of a statutory alternative, which is usually faster and cheaper than conventional tripartite panels. Others are turning to expedited arbitrations or mediation-arbitrations, which allow the arbitrator to both mediate and arbitrate a given case. Such streamlined techniques reduce most of the problems associated with backlogs, delays, cost overruns, and legal formalization.
For example, the postal service in Canada has long differentiated between “formal” arbitrations and “regular” or expedited arbitrations. In Ontario, the electricity industry has likewise turned to an expedited alternative, clearing a huge backlog of cases in the first instance, and processing cases at a much faster rate on a continuing basis.46 These expedited systems can hear and dispose of as many as four or five discharge cases a day. In a large organization with a large number of grievances to be resolved, a system that can process disputes at that rate will necessarily be a great asset to the parties, and thus their workplaces.
The expedited format may not, of course, be appropriate for all disputes. Some grievances that by their nature raise multiple, complex legal or technical issues, or issues of great systemic consequence for the institutional relationship, will very often require a full conventional arbitration hearing. Nonetheless, serious consideration of these expedited techniques, whether statutory or private, should be considered and encouraged even in relation to systemic disputes.47
There are, of course, aspects of the traditional labour arbitration model that have proven effective and appropriate for some workplaces. For example, the early model of “industry arbitrators” endures, and is appropriate for certain types of organizations; and relying upon an arbitrator or a panel of arbitrators who are familiar with the operations and with the issues arising from a particular workplace can also be effective. Garrett, in his study of the emergence of permanent systems for grievance arbitration in the United States,48 gives examples of several such successful ventures in key American industries. There are Canadian counterparts as well, such as the postal service, the rail system, the air industry, and the electricity industry in Ontario, that continue to be well served by the specific expertise of their mediators and arbitrators.
Generally, the parties themselves are in the best position to design a system that meets their particular needs. Perhaps this will take the form of a permanent panel; an ad hoc system; an expedited system, whether statutory or in-house; or some combination of systems new and conventional. The choice or choices will depend on a number of factors, such as the size of the workplace, the nature of its operations, the types of grievances generated in the workplace, the level of trust between the parties, their level of sophistication, the general culture of the workplace, and the volume of grievances per year.
The labour-management community is sophisticated, and has a long history of innovation and leadership. There are some common threads to the reforms emerging that are worth naming and reflecting upon as new dispute resolution frameworks are developed for any given workplace. While the list is not intended to be exhaustive, consideration of these practical, simple, and achievable enhancements could take many parties a long way toward the goal of recapturing proportional, responsive, and affordable industrial justice.
Compression. Delay can start within the grievance procedure. To counteract this, steps in the grievance procedure can be eliminated or compressed and time intervals reduced. Deadlines can be imposed for scheduling hearings, selecting arbitrators, and issuing awards.
Choice of arbitrator. To avoid delays caused by busy arbitrators, parties should consider expanding their pool of arbitrators to include those who are more available. The parties must consciously balance their interest in getting a particular arbitrator with their interest in getting their dispute resolved sooner.
Venue. In the early days of grievance arbitration, arbitrators typically went right into the workplace to resolve the parties’ dispute. Instead of booking facilities at “neutral” off-site premises, the parties could agree to alternate between using employer and union premises, or use videoconferencing, thereby saving the costs and delays associated with accommodation and travel.
Preparation. Importantly, issue definition should occur during the grievance procedure and should precede the hearing. Too often, the first day of arbitration is treated like a day of discovery. For parties to a collective agreement, the grievance procedure is, or at any rate should be, their discovery process.
Proportionate process. A case must be resolved in a manner that reflects the complexity, monetary value, and importance of the dispute. The onus of being proportional in addressing a case is on the parties and, to a much more limited extent, the arbitrator.
Backlogged grievance systems are a symptom of a failure to prioritize. Often advocates, and arbitrators hearing the grievances, have little perspective on the relative import of different cases. Yet, a scarcity of resources demands that parties rank their issues. Not all discipline cases, for example, require a full and exhaustive hearing. A discharge grievance likely requires a greater expenditure of time, effort, and cost than a one-day suspension. If perspective and proportionality are lacking, it is the role and the professional responsibility of all of the players to supply it. Ultimately, they are accountable for their decisions, especially those that do not promote an affordable, timely, and proportionate process.
In order for the parties and the arbitrator to focus on what is really in dispute, as opposed to what is not in dispute, there should be a wide-ranging sharing of documents at the outset, and a broader use of admissions and pre-agreed statements of facts to narrow the issues.
Evidence should be limited and focused on what is essential to making the case, and restricted to the examination and cross-examination of necessary witnesses. Other evidence can often be exchanged in advance of the hearing through written briefs. The goal should not be to cross-examine a witness exhaustively or to the point of public capitulation, but to use the hearing time efficiently.
Although one cannot take the complexity or the legal issues out of the process, all involved can find ways to eliminate the unnecessary procedural roadblocks, the over-lawyering, and disregard of the true value of an expeditious and effective grievance arbitration process to the entire workplace. Employers and unions need to acknowledge that the true value and utility of the process arises from having their case heard on the merits, without prolonging the resolution of the dispute.
Proportionate decision-making. Not every grievance requires an exhaustive, publication-quality analysis but, rather, reasons that are “sufficient.”49 More often than not, the delay in the delivery of reasons causes more hardship for the workplace than the decision itself. The parties need to get back to their day-to-day responsibilities. What they require is clarity on how to deal with a specific conflict and how to right the wrong. One need only observe the increasing use of mediation as a means to resolve disputes to identify the often limited value of written reasons for the workplace.
Finality. Grievance arbitration should not be seen as an interim step en route to judicial review. The grievance procedure was originally held out as a quid pro quo for no strikes or lockouts during the term of the collective agreement. Therefore, the backstop of a grievance procedure was arbitration, and not judicial review. Statutory privative clauses and the “final and binding” promise were to be respected by the parties; otherwise, the trade-off would be undermined.50 As several observers have pointed out, the courts are not usually the most appropriate forum, in any event, and are often unhelpful in resolving the problems that confront a workplace.51
Respect the ongoing relationship between the parties. Jacob Finkleman, during his tenure as chair of the Ontario Labour Relations Board, often referred to the long-term nature of the relationship between the parties as one of the foremost reasons why the expert and responsive administrative sector was more appropriate for overseeing mid-contract labour-management disputes. He correctly contrasted the purpose of court litigation—which disposes a particular controversy with little regard for future relations between the parties—with the purpose of grievance arbitration:
In industrial relations, however, the primary purpose of any process established for the settlement of disputes is to enable the parties to continue to live together; a breach of a collective agreement does not put an end to the collective relationship. It is for these reasons, among others, that court procedures are ill-adapted to the needs of modern labour management relations.52
The emphasis that Professor Finkleman placed on the importance of the ongoing relationship between labour and management is equally relevant today. Collective bargaining must remain the dominant mechanism to define the terms of employment, working conditions, safety, and other standards that govern a workplace. Grievance arbitrations are not meant to be mid-agreement workplace “disruptions.” Controlling the grievance resolution process in a proportionate manner—from start to finish—is required in order to ensure that arbitrations do not become a backdoor way of reopening the collective agreement or disrupting workplace peace.
The importance of a workable grievance resolution system for both employers and unions cannot be overstated. The lack of such a system is a prescription for discontent and conflict in the workplace. A dysfunctional grievance system destabilizes the work environment, demoralizes employees, and sidetracks productivity. It is the symptom of a soured and unhealthy relationship.
It is essential to bring the parties back into the process. By encouraging parties to design and take charge of their own grievance procedures, and to do so in a manner that reflects proportionality and innovation, it is possible to achieve the fundamental goal of delivering fair, timely, and affordable mid-contract dispute resolution. It is not beyond the reach of any workplace to develop a model of conflict resolution that serves the interests of both labour and management, and therefore promotes workplace harmony.
A well-functioning grievance arbitration procedure is vital to a well-functioning workplace. In order to have a peaceful and productive workplace, conflict within that workplace must be diverted to an appropriate dispute resolution mechanism. That system is grievance arbitration, and properly used, it is well equipped to avoid, defuse, and resolve conflicts between parties to a collective agreement.
If we can get back to our roots and remember why the arbitration system was embraced in the first place, then we can accomplish our original goals, and labour arbitration will regain its deserved reputation and respect as the cornerstone of industrial justice: a model of conflict resolution that serves the interests of labour and management, and therefore of labour policy as well.
American Arbitration Association. “AFL-CIO and Management Support ‘EXCELLERATION’ Program to Expedite Grievance Arbitration,” Dispute Resolution Journal, Apr–Sept96, Vol. 51, No. 2/3, p. 9
Carrothers, A.W.R. Labour Arbitration in Canada (Toronto: Butterworths, 1961)
Dassios, Christopher M. “Taking a Walk on the Wild Side: Over a Decade of Expedited Arbitrations in the Ontario Electricity Industry,” paper delivered at the 2010 National Association of Arbitrators Conference
Ely, Richard T. “Arbitration,” The North American Review, Vol. 143, No. 359 (Oct. 1886), pp. 317-328 (published by University of Northern Iowa)Finkelman, Jacob. “Public Sector Collective Bargaining,” Relations industrielles/ Industrial Relations, Vol. 41, No. 4 (1986), pp. 691-703Finkelman, Jacob. “Separation of Powers: A Study in Administrative Law,” University of Toronto Law Journal, Vol. 1 (1935-1936), pp. 313-342
Finkelman, Jacob and Shirley B. Goldenberg. Collective Bargaining in the Public Service: The Federal Experience in Canada, Vol. 2 (Montreal: The Institute for Research on Public Policy, 1983)
Garrett, Sylvester. “Permanent Systems for Grievance Arbitration,” Proceedings of the American Philosophical Society, Vol. 118, No. 5 (Oct. 15, 1974), pp. 417-421Lipsky, David B. “Workplace Arbitration in the Current Economic Crisis” Dispute
Resolution Journal, Vol. 64, No. 1 (February/April 2009) p. 7, 9
MacDowell, Laurel Sefton. “The Formation of the Canadian Industrial Relations System during World War Two,” Le Travail, Vol. 3 (1978), pp. 175-196 (published by Athabasca University Press)
Palmer, Earl E. “The Remedial Authority of Labour Arbitrators,” in R. St.J. Macdonald, ed., Current Law and Social Problems (Toronto: University of Toronto Press, 1960), pp. 125-161
Rose, Joseph B. “Statutory Expedited Grievance Arbitration: The Case of Ontario,” The Arbitration Journal, Vol. 41, No. 4 (December 1986), pp. 30-45
Rubin, Barry M. and Richard S. Rubin. “Creeping Legalism in Public Sector Grievance Arbitration: A National Perspective,” J. Collective Negotiations, Vol. 30, No. 1 (2003), pp. 3-14
Thornicroft, Kenneth W. “Sources of Delay in Grievance Arbitration,” EmployeeResponsibilities and Rights Journal, Vol. 8, No. 1 (1995), pp. 57-66
Weiler, Paul. Reconcilable Differences: New Directions in Canadian Labour Law (Toronto: Carswell, 1980)
Weiler, Paul. “The Role of the Labour Arbitrator: Alternative Versions,” University of Toronto Law Journal, Vol. 19, No. 1 (Winter 1969), pp. 16-45
In 1967, Parliament enacted Bill C-267, which amended the Judges Act and effectively made it more difficult for judges to sit on arbitration panels. The amendments received royal assent on March 1, 1967.
According to the Hansard evidence, one of the purposes of the amendment was to discourage judges, particularly county court judges, from accepting extrajudicial assignments to serve, for example, as royal commissioners, arbitrators, and conciliators. Parliament felt that such assignments threatened judicial independence and impartiality, and also contributed to the backlog of cases in the court system.
Before the amendments in 1967, s. 38 of the Judges Act53 was as follows:
38. (1) Except as provided in subsection (2), no judge shall act as commissioner or arbitrator on any commission or inquiry without the consent of the Governor in Council.
(2) Every judge nominated for the purpose by the Governor in Council or the Lieutenant-Governor in Council may act as commissioner or arbitrator on any commission, inquiry or arbitration for which he may be
appointed under any authority in that behalf exercisable by the Governor in Council or the Lieutenant-Governor in Council respectively.
(3) Subsection (1) does not apply to judges acting as arbitrators or assessors of compensation or damages under the Railway Act or any other public Act, whether of general or local application, of the Dominion or of any province, whereby a judge is required or authorized without authority from the Governor in Council or Lieutenant-Governor in Council to assess or ascertain compensation or damages.54
On March 1, 1967, Bill C-267, An Act to Amend the Judges Act,55 received royal assent. It amended s. 38 of the Judges Act as follows:
5. Subsections (1) and (2) of section 38 of the said Act are repealed and the following substituted therefor:
38. (1) No judge shall act as commissioner, arbitrator, adjudicator, referee, conciliator or mediator on any commission or on any inquiry or other proceeding unless
(a) in the case of any matter within the legislative authority of Parliament, the judge is by an Act of the Parliament of Canada expressly authorized so to act or he is thereunto appointed or so authorized by the Governor in Council; or
(b) in the case of any matter within the legislative authority of the legislature of a province, the judge is by an Act of the legislature of the province expressly authorized so to act or he is thereunto appointed or so authorized by the Lieutenant-Governor in Council of the province.56
Although the amendment seems to be substantively minor (in both cases, a judge may not act as an arbitrator unless he or she is authorized to do so by the Governor in Council or Lieutenant-Governor in Council, as the case may be), the stronger wording of the new provision more clearly asserted that the presumptive position was for a judge not to act as an arbitrator. As well, the amendments ensured that judges who undertook arbitration would not receive anything more than they would have received had they been performing their ordinary judicial functions.57
The debates about the bill in the House of Commons and Senate confirm that one of the purposes behind the amendments was to discourage judges from continuing to serve on arbitration boards.
At the second reading of Bill C-267,58 the Honourable L. T. Pennell, Solicitor General of Canada, stated the following in the House of Commons:
Finally, we are proposing to broaden the provisions of the law to make it clear that judges can act as commissioners or arbitrators, etc., if there is either a federal or provincial statute authorizing them to do so, as well as in cases where, as at present, there is proper executive authority from the governor or lieutenant governor in council. However, judges who do undertake these special duties will be permitted to receive only their actual travelling and other expenses while away from their ordinary places of residence, if these expenses are paid by the governments concerned.… The result will be that judges who do undertake extrajudicial duties cannot be accused of doing so for pecuniary motives or personal gain at the expense of their brother judges who in some cases are required to assume additional judicial burdens as a result.59
The comments from the other Members of Parliament supported the bill and stressed the need to discourage judges from accepting extrajudicial duties. For instance, the Honourable R. A. Bell from Carlton stated:
In this particular [sic] I want to state my firm objection to what I may describe as moonlighting by judges. With the new salaries proposed I believe that only in cases of greatest urgency should judges be permitted to accept outside employment. In most courts there is a heavy backlog of work, much of it created by judges accepting non-judicial assignments as royal commissioners, arbitrators, conciliators or the like. These extrajudicial duties are prejudicial to the independence and impartiality of the judiciary, and should be stopped.60
Another Member of Parliament, Mr. Fulton, stated:
The general arguments against acceptance by judges of appointments to extrajudicial functions have been made already, so I will not do more than summarize them. They are first, that with the pressure of litigation and business which is properly the function of judges this practice imposes an extra burden on those judges who do not take such appointments. It is also unfair to litigants when delays occur because judges are not available to dispose of their cases. An equally undesirable result is that we have been inclined to appoint judges to boards and commissions … [and this] has brought them into political controversy and has lowered the standing and reputation of the bench.61
The Senate expressed similar concerns regarding judges doing extra-judicial duties like sitting on arbitration boards. At the Senate debate on February 28, 1967,62 Honourable W. Ross Macdonald performed the second reading of Bill 267 and had this to say:
Clause 5 is quite important because it prevents a judge from acting as a commissioner, arbitrator, adjudicator, referee, conciliator or mediator. He is, indeed, prevented from acting in those capacities unless he is appointed by a government, either federal or provincial, or by an order in council. If he is so appointed he can act as an arbitrator, but if he does so act he cannot receive any fees, or any payment apart from his actual travelling and living expenses. This is a change from what has existed in the past.
As honourable senators know, a number of judges, especially County Court judges, have been acting as arbitrators, and have been spending considerable amounts of time in doing so. In some counties there have been complaints from the Bar that the County Court judge has been away too much in connection with arbitrations.
It has been decided that in future a judge cannot act as an arbitrator unless he is expressly authorized by statute to so act. I might repeat here what I said before, namely, that if he does act he is paid only his actual travelling expenses.
Honourable senators, that explains the provisions of this bill. I should like to comment on the fact that County Court judges will now be relieved in large part of the duties they have assumed in the past in respect of arbitrations. They will now be able to spend considerably more time in their counties.63 (emphasis added)
Given the opinions expressed at these political debates, it is unsurprising that county court judges soon stopped hearing labour arbitrations. A review of labour arbitration cases reveals that one of the last (if not the last) reported decision heard by a county court judge was on July 3, 1968.
1 Richard T. Ely, “Arbitration,” North American Review, vol. 143, no. 359 (October 1886), pp. 317-328 (University of Northern Iowa).
2 Ibid. at p. 318.
3 Ibid. at p. 319.
4 Ibid. at p. 327.
5 Paul Weiler, Reconcilable Differences: New Directions in Canadian Labour Law (Toronto: Carswell, 1980), p. 109.
6 See Barry M. Rubin and Richard S. Rubin, “Creeping Legalism in Public Sector Grievance Arbitration,” J. Collective Negotiations, vol. 30, no. 1 (2003), pp. 3-14.
7 Ibid.
8 Ely, “Arbitration,” pp. 321-323.
9 Ibid. at p. 322.
10 Ibid. at p. 322.
11 Ibid. at p. 322.
12 Ibid. at p. 323.
13 In the United States, a philosophical objection to a government-managed system of labour arbitration was apparent from the outset, at least according to Ely, who observed that it would never be palatable to Americans. He wrote, “Nor is there any probability that it could be employed in this country.… [Government] might encourage the use of arbitration in certain cases, but could scarcely do more than that.” Ely at p. 323.
14 Sylvester Garrett, “Permanent Systems for Grievance Arbitration,” Proceedings of the American Philosophical Society, vol. 118, no. 5 (Oct. 15, 1974), pp. 417-421.
15 Laurel Sefton MacDowell, “The Formation of the Canadian Industrial Relations System during World War Two,” Labour/Le Travail, vol. 3 (1978), pp. 175-196.
16 Ibid. at p. 176.
17 Ibid. at p. 186.
18 Ibid. at p. 186.
19 Ibid. at p. 186-187.
20 Ibid. at p. 192. MacDowell reports that by April 1943 almost a quarter of a million workers were involved in unrest, resulting in over a million man-days lost.
21 Ibid. at p. 192.
22 Ibid. at p. 193.
23 The prohibition on mid-contract strikes, however, was a contrast with the American legislation.
24 MacDowell at p. 195.
25 Ibid. at p. 196.
26 The various labour statutes in Canada do not uniformly mandate arbitration for the resolution of all disputes, though in most jurisdictions the statutory grievance/arbitration clauses have been interpreted as guaranteeing arbitration. For a detailed review of statutory arbitration clauses and their significance see Willis and Winkler on Leading Labour Cases, 2010, ch. 3.
27 MacDowell at p. 191-192.
28 The statutory expedited procedure was contained in s. 45 [now s. 49].
29 Joseph Rose, “Statutory Expedited Grievance Arbitration: The Case of Ontario,” The Arbitration Journal, vol. 41, no. 4 (Dec. 1986), pp. 30-45.
30 Ibid. at p. 38.
31 Re Oil, Chemical and Atomic Workers International Union, Local 16-14 and Polymer Corporation Ltd. (1959), 10 L.A.C. 51 (per Laskin, Dubin, O’Brien), aff’d 26 D.L.R. (2d) 609 (Ont. H.C.J.).
32 As Professor Earl Palmer observed when commenting on Polymer, the union was thereby invoking the maxim expressio unius exlusio alterius—the expression or mention of the one implies the exclusion of the other. Earl E. Palmer, “The Remedial Authority of Labour Arbitrators,” Current Law and Social Problems (Toronto: University of Toronto Press, 1960), pp. 125-161, at p. 151.
33 Polymer pp. 59-60.
34 See, for example, Paul Weiler, “The Role of the Labour Arbitrator: Alternative Visions,” University of Toronto Law Journal, vol. 19, no. 1 (1969), pp. 16-45.
35 (1995), 2 S.C.R. 929, 125 D.L.R. (4th) 583 (S.C.C.)
In Weber, an employee complained of back problems and took an extended leave of absence. The employer Ontario Hydro suspected him of malingering, so it hired private investigators to look into the propriety of the health problems. These investigators, pretending they were someone else, gained entry into the dispute that (1) arises in its essential character from the interpretation, application, administration, or alleged violation of a collective agreement; and (2) falls within the ambit of a collective agreement. Weber was another watershed decision for the labour arbitration community, for it added to the industrial relations “potency” of the labour arbitrator, whose possession of remedial powers was not merely broad and effective, but was also exclusive.
Weber’s vision of an exclusive jurisdiction for labour arbitrators appeared to signal that, within the broader field of administrative law, labour arbitration had truly “come of age.” Moreover, the notion that labour arbitrators had the authority to award damages in tort, or even award Charter remedies, galvanized the business of arbitrating labour disputes. One of the consequences of Weber was that assault and defamation claims arising out of a labour dispute, which were traditionally the subject of civil lawsuits, were effectively transferred out of the court system and into arbitration.
The Supreme Court of Canada’s decision in Parry Sound (District) Social Services Administration v. OPSEU36 further expanded the jurisdiction of arbitrators. The issue in that case was whether an arbitration board could consider whether an employee had been a victim of discrimination under Ontario’s human rights legislation. The Court held that it could. By virtue of s. 48(12)(j) of the Labour Relations Act, 1995,37 the substantive rights and employee’s home. As a result of the information they obtained, the employer suspended the employee for abusing his sick leave benefits. The employee told his union, which filed grievances against the employer. Those grievances were eventually settled. However, the employee also commenced a court action against the employer based on tort and a breach of Charter rights. The main issue in Weber was whether the employee was precluded from making the tort and Charter claims, on the basis that the collective agreement covering this dispute deprived the courts of jurisdiction.
With respect to the tort claim, the Supreme Court unanimously held that once a dispute is seen to arise out of the collective agreement, then, pursuant to the Labour Relations Act, the jurisdiction of the labour arbitrator is exclusive. The Court wrote, “Where the dispute, regardless of how it may be characterized legally, arises under the collective agreement, then the jurisdiction to resolve it lies exclusively with the labour tribunal and the courts cannot try it.” A majority of the Supreme Court also held that Charter claims, if they are components of the labour dispute, also lie within the jurisdiction of the labour arbitrator, and that labour arbitrators should be deemed “courts of competent jurisdiction” for the purpose of ordering a remedy under s. 24(1).
36 Parry Sound (District) Social Services Administration Board v. Ontario Public Service Employees Union, Local 324 (O.P.S.E.U.), [2003] 2 S.C.R. 157 [Parry Sound].
37 S.O. 1995, c. 1, Schedule A [LRA]. Note that Quebec, Nova Scotia, British Columbia and federal (Canada Labour Code) jurisdictions also have a provision like Ontario’s s. 48(12)(j).
38 R.S.O. 1990, c. H.19.
39 S.O. 2000, c. 41 [ESA].
40 The authority of an arbitrator to rectify errors in the written text of a collective agreement has been the subject of some controversy. The early view, as espoused by the Supreme Court of Canada in Port Arthur Shipbuilding (1968), 70 D.L.R. (2d) 693, was that an arbitrator has no such power. That view began to unravel, however, with the Supreme Court’s decision in Heustis v. New Brunswick Electric Power Commission, [1979] 2 S.C.R. 768 and the Court’s emerging vision of a broad remedial power for labour arbitrators. More recently, the Court of Appeal for Ontario has affirmed that labour arbitrators do possess the power to rectify a collective agreement where it can be demonstrated that the written text contains an error and does not reflect the parties’ true agreement: Nav Canada (2002), 212 (4th) 68 (Ont. C.A.).
41 Re: United Automobile Workers and Duplate Canada Ltd. (1968), 19 L.A.C. 300. The arbitration panel was composed of C.E. Bennett C.C.J., D. Wren, and R.A. Williamson.
42 The term “creeping legalism” comes from the authors Rubin and Rubin, who postulated that an increasingly formal approach to the arbitration process was actually impeding the use of grievance arbitration. They set about to test their hypothesis through an empirical study. See “Creeping Legalism in Public Sector Grievance Arbitration: A National Perspective,” J. Collective Negotiations, vol. 30, no. 1 (2003), pp. 3-14.
43 Rose at p. 32.
44 Kenneth Thornicroft, “Sources of Delay in Grievance Arbitration,” Employee Responsibilities and Rights Journal, vol. 8, no. 1 (1995), p. 65.
45 Ibid. at p. 62.
46 Christopher Dassios, “Taking a Walk on the Wild Side: Over a Decade of Expedited Arbitrations in the Ontario Electricity Industry,” paper delivered at the National Association of Arbitrators Conference, 2010.
47 The American Arbitration Association (AAA) has developed its own system of arbitrator dispatching known as the EXCELLERATION program (ADR News, Dispute Resolution Journal, “Excelleration Program,” 25 April 2006). This program seeks to address a supply issue as well as a delay issue, and as the name suggests, the hearing process is greatly accelerated. Billed as “an attractive option for unions and employers who want to quickly resolve simple grievances,” EXCELLERATION promises to deliver a “desk arbitration” option for parties who choose to waive an oral hearing; hearings within fifteen days of submission of the matter to the AAA; and a written award specifying the remedy, if any; but no “opinion” (unless the parties agree otherwise) within 24 hours of the close of the hearing (unless the parties agree otherwise). Presumably these are “bottom line” type decisions. It will be interesting to watch the progress of this initiative.
48 Garrett, supra.
49 Clifford v. Ontario (Attorney General), 2009 ONCA 670, 188 L.A.C. (4th) 97, leave to appeal to S.C.C. refused, [2009] S.C.C.A. No. 461. Clifford is the current leading authority on sufficiency of reasons in administrative decision-making. See also Jacobs Catalytic Ltd. v. IBEW, Local 353, 2009 ONCA 749, 188 L.A.C. (4th) 193, and Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, 170 L.A.C. (4th) 1.
50 The final and binding clause is s. 32(1) [now s. 48(1)].
51 With regard to the statutory requirement to arbitrate in the Ontario Labour Relations Act, Professor Palmer wrote, “The salient feature of this mandate is the rejection of the courts as agencies for enforcing collective agreements.” See Earl Palmer, “The Remedial Authority of Labour Arbitrators,” p. 126.
52 International Union, U.A.A. & A.I.W. of A. (UAW-CIO) and Canadian Acme Screw and Gear Ltd. (1954), C.C.H. Lab. L. Rep. 17,013 (Ont. Lab. Rel. Bd.), at p. 13149; quoted in Palmer at p. 127.
53 Judges Act, R.S. 1952, c. 159.
54 Ibid., s. 38.
55 An Act to Amend the Judges Act, 1966-67, c. 76.
56 Ibid., s. 5.
57 Ibid., s. 6.
58 Debates of the House of Commons, 1st Session, 2nd Parliament, Vol. XIII, 24 February 1967, pp. 13439-13457.
59 Ibid. at 13439-40.
60 Ibid. at 13442.
61 Ibid. at 13453.
62 Senate Debates, 28 February 1967, at pp. 1516-1524.
63 Ibid. at pp. 1517-1518.
*Reprinted with the kind permission of Queen’s University. Copyright © 2011 School of Policy Studies, Queen’s University at Kingston, Canada