Limiting The Scope Of Hearings – Spring 2009

April 27, 2009

Labour Arbitration: Limiting The Scope Of Hearings A commonly expressed fear is that labour arbitration, an expedited form of dispute resolution, is becoming increasingly complex and expensive. In a recent decision from Nova Scotia, Arbitrator Bruce Outhouse held that, where there is a risk of unnecessary delay, arbitrators should restrict the scope of the grievance before them.

In CEP Atlantic Communications Council v. Bell Aliant Regional Communications, L.P., the Employer converted its business structure from a corporate entity to an income trust. As part of this conversion, an employee share purchase plan was terminated and replaced by an employees’ unit purchase plan.

Shortly after conversion, the Union filed a policy grievance alleging that the Employer had contravened the Collective Agreement, which provided that the Employer would not diminish the level of benefits provided to its employees under the share purchase plan during the life of the Collective Agreement.

One of the issues raised by the Union was that, apart from the language of the share purchase plan and unit purchase plan, the very act of converting to an income trust from a corporation diminished the level of benefits to employees, since income trusts are inherently destructive business models. The Union produced a lengthy expert report purporting to catalogue the shortcomings of income trusts.

In reviewing whether he should restrict the scope of the grievance, Arbitrator Outhouse acknowledged that arbitrators are generally reluctant to issue pre-hearing directions, which run the risk of foreclosing legitimate lines of inquiry and evidence. However, “where there is a real risk of unnecessary delay and wasted resources due to protracted proceeding”, Arbitrator Outhouse held, “arbitrators have a responsibility to the process and the parties to ensure that the hearing is conducted in an efficient and effective manner”.

Arbitrator Outhouse held that the Union would be entitled to put forward evidence to show that benefits available under the unit purchase plan were less than those under the share purchase plan, either because of a decrease in employer contributions or because the conversion to the unit purchase plan had triggered a capital gains tax. However, the Union’s evidence regarding the inherent shortcomings of income trusts was found to be “of peripheral relevance, highly speculative and unduly time consuming”. It was therefore excluded from the scope of the grievance.

Arbitrator Outhouse also excluded the Union’s expert report on the grounds that it did not meet the fundamental requirement of objectivity. Arbitrator Outhouse specifically critiqued the report for using “pejorative and judgmental language”, examples of which likened income trusts to a ‘pyramid scheme’.

Access To The Courts

In Bugden v. St. John’s (City), the Supreme Court of Newfoundland and Labrador, Trial Division recently made it clear that, in this province at least, unionized workers may be able to commence civil claims against their employers. Since the landmark 1995 Supreme Court of Canada decision in Weber v. Ontario Hydro, the commonly held view was that any dispute arising out of a collective agreement must be resolved solely through arbitration. The decision of Chief Justice Green in Bugden v. St. John’s (City) et al. held that the specific language of the Labour Relations Act, as well as the collective agreement language, determines whether unionized employees are able to commence civil actions against employers.

Mr. Bugden, a firefighter, sued his employer, the City of St. John’s (the “City”), for damages in relation to an assault committed by a fellow firefighter against him, alleging failure by the City to provide a safe workplace following the assault. The City sought to have Mr. Bugden’s claim struck on the basis that the court had no jurisdiction to hear the claim, arguing that the dispute was governed by a collective agreement that conferred exclusive jurisdiction to the arbitration process. The issue before the Court was whether its jurisdiction to hear Mr. Bugden’s claims against the City had been ousted by the grievance provisions of the collective agreement and the mandatory arbitration clause under section 86 of the Labour Relations Act.

Section 86 of the Labour Relations Act requires a collective agreement to contain a provision for settlement of disputes arising out of the agreement, by arbitration or otherwise. Green, C.J., indicated that failure to include a dispute settlement provision of some type in a collective agreement automatically imposes, by statute, resolution by arbitration. The collective agreement provisions in the Bugden case that were specific to harassment complaints and the provision of a safe workplace stated that “[a]n individual is free to file a complaint in any forum”.

The decision in Weber mandates that a court facing a challenge to its jurisdiction must attempt to define the “essential character” of the dispute and consider the language of the collective agreement. The Court held that, in the case at hand, all of the allegations were linked to Mr. Bugden’s employment and that in order to limit forums in which employees can seek redress, the collective agreement must clearly restrict dispute resolution to arbitration. Parties are free, however, to negotiate collective agreement language to provide a different dispute resolution mechanism. The collective agreement in the Bugden case provided an arbitration procedure but it also included specific language with respect to the filing of harassment complaints.

The Court held that such language preserved the right of Mr. Bugden to access other forums, including a civil action in the Court.

As a result of this decision, employers of unionized workers in Newfoundland and Labrador may wish to ensure they negotiate specific collective agreement language that restricts dispute resolution to the arbitration process. It is important to note that the time limits for filing a grievance found in most collective agreements are typically much shorter than the time limits within which a civil action must be commenced in Court. As well, there are potentially additional cost implications for employers who must respond to a civil action, both in terms of legal costs and possible damage awards.

Human Rights Complaints: Investigative Thoroughness

In a decision that should come as good news to employers, the New Brunswick Court of Queen’s Bench recently reviewed how thorough a Human Rights Commission investigation must be before dismissing a complaint on a preliminary basis. Namely, was the Commission required to meet with a complainant before dismissing the complaint?

In New Brunswick Human Rights Commission (Interested Party), the Complainant: (1) was asked whether she preferred to meet in person or receive the interviewer’s question by email, of which she chose the latter option; (2) filed a lengthy, comprehensive complaint with the Commission; (3) filed a rebuttal to the Respondent’s response; (4) submitted a comprehensive document answering in great detail the questions of the investigator; (5) filed a lengthy response to the Case Analysis Report; (6) spoke to the investigator on a number of occasions; and (7) faxed documents to the investigator regarding her physical disability.

In determining the issue, the Court reviewed five factors to determine the degree of investigative thoroughness required in investigations of this nature: (1) how close is the administrative process to the judicial process; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual affected; (4) the legitimate expectations of the person challenging the decision where undertakings were made concerning the procedure to be followed; and (5) the choice of the procedure made by the administrative decision maker.

The Court reached the following conclusions with respect to each of the five factors:

1. The Commission exercises its screening process under the Human Rights Act (“Act”) when determining whether a complaint has merit and the Case Analysis Report is provided to the parties who are entitled to make submissions in writing before a decision is made. This points towards a weaker level of procedural protection;

2. The Act does not contain a privative clause but judicial review is available. The Act provides no guidance concerning the general conduct of investigations or minimum duties of investigators. On balance, these factors imply neither strong nor weak procedural safeguards;

3. It is a very important factor that a complainant is left with little or no possibility of obtaining relief when a complaint is dismissed. This consideration therefore suggests increased requirements of procedural fairness;

4. The Commission’s dismissal letter simply stated that the Case Analysis Report and all submissions were discussed and therefore, did not provide a comment or an undertaking concerning the procedure followed. As a result, the Court found that this factor was neutral in assessing the procedural safeguard; and

5. So long as the Commission’s procedure does not contravene the duty of fairness it deserves respect as it is the Commission’s role to screen the complaints that will make it to a Board of Inquiry. This consideration points strongly towards a lesser degree of procedural protection.

In the end, the Court found that the Commission did not breach the principles of natural justice or procedural fairness by not conducting a personal interview with the Complainant, nor was that decision “unreasonable”. It could not be said that the investigator failed to look into any particular issue or that any information was either unknown or unavailable to the investigator.

Any inquiries should be directed to: (Nova Scotia) Tom Groves at (902) 491-410; (Prince Edward Island) Patricia McPhail at (902) 629-3936;  (New Brunswick) Trisha Gallant-LeBlanc  at (506) 461-4764 or (Newfoundland & Labrador) Chris Peddigrew at (709) 570-5338.

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