arbitration from an arbitrator's perspective

34 Pages·2009·0.24 MB·English

ARBITRATION FROM AN

ARBITRATOR'S PERSPECTIVE
W. Robert Pelton
Pedersen, NormanMcLeod&Todd
500-2220-12th Ave.
P.O.Box1097
Regina, Bask..S4P382
,
) Ph: 565-4100 Fax: [phone]
BIOGRAPHICAL INFORMATION
W.•Robert Pelton
Robert received a B.A. in 1971 and an LL.B. in 1972 from the UniversityofSaskatchewan. Hewas called
to the Saskatchewan Bar in 1973.Robertpracticesarbitrationandmediationprimarilyinindustrialrelations
settings: employment law; civil litigation; andwills & estates.He has extensive·experience representing
eit~~rmanaQement or labourinlabour/managementdisputes. Forthe pastfive.years he.has been either
.a lone Arbitrator orChairperson.ofE3oardsofArbitration inlab~ur/managementdispute~.Roberthas
r~ceivedappointments.toserveas aarbitrator/adjudicatorfromthepartiesinvolved,Saskatchewan labour.
Relations Board, Provincial.Minister ofLabour,•and labour Canada.·He has received mediationtraining
andhas served as a conciliatorand mediatoronlabour/managementdisputes~ Robertpractices withthe
firm Pedersen, Norman,Macleod &Todd in Regina. .
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TABLE OF CONTENTS
I. ARBI1R.ATION 1
A. 'WHAT IS IT? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
B. DIE BASIS FOR ARBI1R.ATION 2
H. PRACTICAL AND PROCEDURAL CONSIDERATIONS 4
A. SOLE ARBI1R.ATOR OR lRIPARTITE BOARD 4
B. DIE ROLE OF NOMINEES TO A BOARD OF ARBI1R.ATION 7
C. PREHEARING DISCLOSURE AND
PRODUCTION OF DOCUMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . .. 8
D. SCHEDULING DIE HEARING . . . . . . . . . . . . . • . . . . . . . . . . . . . . .. 11
E. NOTICE TO INTERESTED PARTIES 11
F. AGREED STATEMENT OF FACTS AND
AGREEMENT AS TO DOCUMENTS 13
G. PRELIMINARY MATIERS ~ . . . . . . . . . . . . . . . . . . . . . . . .. 14
H. OPENING STATEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 14
I. ONUS OF PROOF AND ORDER OF PROCEEDING . . . . . . . . . . . . . .. 15
I. EXCLUSION OF WITNESSES 16
K. ADMISSIBILITY OF EVIDENCE 16
L. DIE ONGOING RELATIONSHIP OF nIB PARTIES 16
HI. DIE WEAKNESSES OF ARBI1R.ATION . . . . . . . . . . . . . . . . . . . . . .. 17
IV. REFEREN'CE MATERIAI.S . . . . . . . . . • . . . . . . • • . . . . . . . . . . . . . . . 18
)
) ARBITRATION
From an Arbitrator's Perspective
My experience with arbitration, both as Counsel and as an Arbitrator, has come primarily from
the Industrial Relations field, and accordingly my comments are directed to the resolution of
industrial disputes through arbitration rather than to commercial and family law arbitrations.
I. ARBITRATION
A. WHAT IS IT?
Simply put, arbitration is a bindingprocess of dispute resolution in which the facts ofa dispute
and/or legal arguments are presented to an independent, neutral Arbitrator or an Arbitration
Board, chosen bythe partiesorselected for them. The Arbitrator, afterhearingthe evidenceand
arguments, renders a decision which, generally speaking, will be binding on the parties. Ofthe
many altematives to court-based litigation, arbitration is the closest in style to it. It does,
however, have several advantages over litigation:
(i) The parties have greater control over the.arbitration process than the litigation
process. As anexample,theArbitratoror Chairpersonofthe BoardofArbitration
is generally chosen by the parties, and as a result the parties can ensure that the
dispute is heard and determined by someone of their choosing.
(ii) Arbitration is more expeditious and less costly than litigation primarily because
there are less prehearing steps. Rather than formal pleadings there is a grievance
which is usually no more than a page in length and there mayor may not be a
written response. There are no Statements as to Documents or Examinations for
Discovery. Although Counsel familiarwith the usual litigation process might be
concemed that the lack ofsuch prehearing process will leave them unprepared at
arbitration, it has been my experience that in most arbitrations, Counsel are fully
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aware ofthe issues and evidence surroundingthe issues prior to the Hearing. In
most cases the parties will have gone through a 2 or 3 step grievance'process
before getting to arbitration and are able to obtain the necessary background
information during those prehearing meetings. In rare cases where Counsel are
truly caught by surprise, an adjournment can usually be obtained.
(iii) While any arbitration award can be subjected to an Application for Iudicial
Review, that is certainly not the same as an Appeal and accordingly arbitration
results in a binding decision sooner than does litigation.
B. THE BASIS FOR ARBITRATION
In Saskatchewan, most arbitrations in the Industrial Relations field fall under The Trade Union
Act, R.S.S. 1978 c. T-17, as amended, which, since October 1994 has provided that differences
between parties to a collective bargaining agreement with respect to the agreement's meaning,
application or alleged violation are to be settled by arbitration.
Although Saskatchewan did not make arbitration mandatory in the area of Industrial Relations
until 1994, the rest of Canada has, for the most part, had mandatory arbitration for the past 50
years. Even in Saskatchewan prior to 1994 most collective bargaining agreements did provide
for arbitration in any event.
Arbitrators have no inherentjurisdiction, and accordingly theirjurisdictionmust be found within
the enabling legislation and/or the collective bargaining agreement or agreement to arbitrate.
Sections 25 and 26 of The Trade Union Act, supra, are attached. Particular note is made of :
Section 25.(1.2)(a) - finality of the award;
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Section 25.(1.2)(c) - the award is enforceable in the same manner as an order of the
Labour Relations Board - i.e. pursuant to Section 13 a certified copy is to be filed in the
office ofalocal registrarofthe Court ofQueen's Bench and is enforceableas a judgment
or order of the Court;
Section 25.(2)(a), (b), (c) - an Arbitrator can summon and enforce the attendance of
witnesses andcompel them to testify; canadministeroaths; andcanaccept such evidence
as theArbitrator, in his orher discretion, considers proper, whetheradmissible in a Court
of Law or not;
Section 25.(2)(f) - anArbitrator has the powerto relieve against breaches oftime limits;
Section 25.(2)(h) - an Arbitrator can encourage settlement of the dispute and with the
agreementofthepartiesmayuse mediation, conciliationorotherproceduresto encourage
settlement;
Section 25.(3) - Arbitrators have the power in disciplinary cases to substitute lesser
.penalties unless the collective bargaining agreement contains a specific penalty for the
infraction in question;
Section 25~{3.1) and (3.2) - a single Arbitrator is obligated to render a decision within
30 days after the conclusion of the hearing while an Arbitration Board must render its
decision within 60 days;
Section 25.(3.6) - ifthe award is not rendered in time, and unless the parties agree to an
extension, the Arbitrator is not entitled to be paid;
Section25.(4) - TheArbitrationAct, 1992,does notapplytoarbitrationsunder The Trade
Union Act.
).
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Commercial and family law arbitrations will, for the most part, be governed by The Arbitration
Act and/or the agreement to arbitrate.
n.
PRACTICAL AND PROCEDURAL CONSIDERATIONS
A. SOLE ARBITRATOR OR TRIPARTITE BOARD
One of the more interesting issues that arises in arbitrations involving industrial disputes is
whether to use aSoleArbitratororaTripartiteArbitrationBoard. Historically,TripartiteBoards
were the norm, however Sole Arbitrators are becoming more common. David McPhillips, in
LabourArbitration Yearbook 1993, Lancaster House (the Butterworth Group of Companies) at
p. 45 refers to studies done in British Columbia which indicated that in 1982 62.7% of all
grievanceawardsfiled inthatjurisdictionhadbeenrenderedbySoleArbitratorsandthat by 1991
Single Arbitrators accounted for 82.1% of grievance arbitration decisions. By way of contrast,
papers presented by Corliss Olson and Allen Ponak in 1990 at the Calgary Labour Arbitration
Conference cited studies which showedthat 4 out of5 cases in Albertawere still being heard by
Tripartite Boards.
I am not aware of any Saskatchewan studies, but from my own experience I believe that
TripartiteBoards are still inthe majority, althoughSoleArbitrators are becomingmore common.
There are, of course, pros and cons for both formats.
.Those who argue against three person boards cite a number of factors including:
(i) Additional cost - as well as having to bear half of the cost of the chairperson,
each party must bear the cost of their own Nominee.
(ii) Time delays - scheduling the hearing itself is more difficultwith a three person
board as not only must the parties' schedules be accommodated but also the
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schedulesofthree ratherthanonearbitrator. Furtherdelayscanresultwitha three
person board in that the chairperson must caucus with the other board members
following the hearing and draft awards must be circulated among the board
members and reviewed by them.
(iii) Redundancy - as Arbitrators become more experienced, and a greater body of
arbitral jurisprudence is built up, the role of Nominees in providing guidance to
the chairperson becomes less useful.
(iv) Additionalgrounds for review - while the Courtsare restrictedin interferingwith
arbitrationawards, thepresenceofNomineesonArbitrationBoards cancontribute
to reviewable errors which do not occur with Single Arbitrators. In particular,
issues can arise with respect to the appearance of bias as a result ofa Nominee's
conduct or relationship to the party nominating him or her, or as a result of the
chairperson's dealings with the Nominees.
(v) Incapacity of a member - if, subsequent to a hearing, but before a decision is
rendered, a Sole Arbitrator dies or is unable for any other reason to render a
decision, the parties must start over. While the odds ofthat happening are slim,
they are multiplied with a Tripartite Board.
On the other hand there are also advantages to a Tripartite Board.
(i) Greater familiaritywithpractices and customs - in IndustrialRelationsthe parties
to an arbitration will generally have an ongoing relationship. Nominees can be
very helpful in ensuring that the chairperson understands practices and customs
peculiar to the parties, and can assist the chairperson in understanding the impact
that the award may have on other issues not before the Board.
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(ii) Errors - Nominees can often point out misunderstandings on the part of the
chairperson on evidentiary matters and even on questions of law. It is often of
assistance for a chairpersonto beable to bounce ideas offthe Nominees. Further,
the Nominees can assist in ensuring that relevant factors are not overlooked, and
that the issues are fully understood.
(iii) Input - on occasion, an issue must be addressed which was not canvassed during
the hearing itself. Having Nominees involved gives the chairperson someone to
debate and analyze the issue with.
(iv) Understanding the evidence - in very technical cases, knowledgeable Nominees
can often assist the chairperson in understanding and appreciating complex
technical evidence.
(v) Settlement - Nominees may be in a better position to recognize a potential for
settlementduring the hearing itself. Further, they can oftenbeofgreat assistance
in pursuing and exploring settlement possibilitieswithout the chairpersonhaving
to be directlyinvolvedwhich couldcompromisethe chairperson's detachmentand
neutrality.
Personally I have mixed views. Certainly a Sole Arbitrator is quicker and less expensive than
a Tripartite Board. Furthermore, ifthe Nominees themselves are inexperienced orclose minded
they can bemore ofa hindrance thanahelp. However, where the Nominees areexperiencedand
familiar with the parties, or the industry, or area of endeavour that is in question, and if, even
though their role in part is to serve as an advocate for the partywhich nominated them, they are
open minded, then they can be of great assistance in complex cases.