General expectation is to continue arbitration by videoconference, says arbitrator
An Ontario arbitrator has denied an employer’s request to hold a discharge arbitration hearing in person without sufficient justification.
Toronto Bail Program (TBP) is a non-profit charitable agency providing pre-trial information and bail supervision services to the courts and vulnerable accused persons in Toronto. Its union, OPSEU Local 548, launched a grievance contesting the discharge of an employee.
The matter went to arbitration, with a hearing scheduled before the arbitrator in January 2023. TBP wanted the hearings to take place in person. Although hearings were done by videoconference throughout the COVID-19 pandemic, the employer argued that in-person hearings were becoming the “presumptive norm” once again.
TBP pointed to prior decisions that stated in-person hearings were preferable to videoconferencing. Its directive was to hold hearings in-person if possible, regardless of the union’s directive.
Return to in-person hearings
The Ontario Labour Relations Board (OLRB) issued a directive that a return to in-person hearings was important for reasons such as access to justice, its context and mandate, and institutional needs. However, the OLRB added that it would “continue to modernize its services and maintain the digital improvements it as adopted over the last two-and-a-half years.”
The union disagreed, arguing that its institutional directive was that arbitration and mediation hearings should continue to be conducted by videoconference as they had been since March 2020. It said that it would keep the cost of proceedings low and ensured fair and easy access by all participants, noting that the worker on whose behalf it had filed the grievance had the technological capacity and ability to participate in a videoconferencing hearing.
The union also pointed out that the worker had assumed that the hearing would be by videoconference and not require travel, so she had made an appointment for afterwards. TBP argued that the worker was not entitled to make that assumption, as the manner of hearing was to be determined closer to the hearing date.
The arbitrator noted that the move to videoconferencing for legal proceedings was prompted by public health concerns and requirements from the pandemic. Those concerns had subsided to a certain extent based on current public health information, although there was still a risk of infection, illness, and death from COVID-19 and other respiratory diseases that were circulating, said the arbitrator, adding that in-person hearings were now possible.
Arbitration needs different
However, the arbitrator found that directives from courts had not addressed the presumptive norm for in-person hearings. As for the OLRB, it was an institution with particular needs, which was different from an arbitrator. Labour arbitration was a “consensual process” paid for by the parties involved, which was different from the courts and OLRB. The parties in an arbitration are “typically experienced institutional players which have the ability, if not the responsibility, to ensure that grievors and witnesses have access to the necessary technology and to assist them with the use of that technology,” said the arbitrator.
In addition, the presumptive manner of proceeding in a labour arbitration was not determined by the arbitrator, but rather what on what the parties agree, the arbitrator said.
In this case, where the parties disagreed on the manner of proceeding, the arbitrator disagreed with TBP that there was a presumptive norm. Given the practice since 2020 and the fact that the majority of arbitration hearings in Ontario continue to be held by videoconferencing, the arbitrator found that videoconferencing was the prevailing practice.
“Over the last two-and-a-half years, videoconferencing has proven itself a fair and cost-effective means of mediating and arbitrating grievances under collective agreements,” said the arbitrator. “At present, it appears to me that the general expectation of unions and employers is that arbitration hearings will continue to be held by means of videoconference.
Labour relations value
TBP argued that it had been established that having the parties face each other in an in-person hearing ensured that each gives full attention to the other’s arguments and had a positive labour relations value, but the arbitrator found that a discharge case such as this one did not suggest a new relationship. In fact, given the differing views about the evidence and events, it was possible that face-to-face mediation or hearings could inflame the situation, said the arbitrator.
In addition, there was still a risk of COVID transmission related to an in-person hearing, and such risks would be imposed on a party that was unwilling to have such a hearing, the arbitrator said.
The arbitrator also found that an in-person hearing would cost more and, since the parties to an arbitration share the cost, there wasn’t sufficient reason to compel an unwilling union to share an additional cost with the employer.
Noting that the presumptive norm could change over time, the arbitrator found that videoconferencing was the appropriate method and denied TBP’s request for an in-person hearing.
See Ontario Public Service Employees Union, Local 548 v. Toronto Bail Program, 2023 CanLII 1820.