The Continuing Legal Education Society of Nova Scotia

Transcription

1 The Continuing Legal Education Society of Nova Scotia I Suite Hollis Street, Halifax, Nova Scotia, CANADA B3J 1V7-----'--- Tel or Fax admin@cle.ns.ca

2

3 ADVOCACY AT ARBITRATION INTRODUCTION The arbitration process is a dispute resolution system designed to determine the rights and obligations that flow out of events in a workplace where a collective agreement exists.! Although the level of formality may vary among arbitrations, they are often much less structured than the trial process. Ideally, arbitrations should be kept as simple as possible in order to deliver a swift and fair form of justice. A successful arbitration will result in the parties feeling that they have had an equal opportunity to present their case and that they have been treated in a fair and consistent manner. Despite some similarities, advocating at an arbitration can be quite different from trial advocacy. Even the most seasoned litigators may find the arbitration process daunting and unfamiliar. The purpose of this paper is to briefly outline the arbitration process and to provide some practical tips for preparing and presenting an arbitration case. There are two general forms of arbitration. Interest arbitration involves settlement ofterms of a contract between the parties. Grievance arbitration concerns the violation or interpretation of an existing contract. A grievance arbitration is commonly related to complaints by an individual or group of individual employees, but can also be a more general union complaint, or policy grievance, that effects the members of the bargaining unit represented by the union. And of course, as a party to the collective agreement, management can grieve also.!j.p. Sanderson, Q.C. & J.W. Brown, Labour Arbitration and All That, 3 d ed. (Aurora: Canada Law Book, 1994) at 1.

4 2 THE GRIEVANCE The arbitration process is initiated by filing a fonnal complaint, or grievance. The language of the grievance will not be scrutinized with as strict a standard as that applied to court pleadings. However, the grievance must clearly layout all the relevant infonnation in order to give the other party the opportunity to properly investigate and respond to the complaint. 2 THE GRIEVANCE PROCEDURE The nonnal grievance procedure usually starts at a most infonnallevel, with the complaint of an individual worker, and involves the worker, a shop steward, and the immediate supervisor. This is a first attempt at talking about the grievance with the purpose of reaching a compromise. This meeting may also help the parties "ventilate". Thus, even if no compromise is reached, the parties may feel relieved at having aired their frustrations, which may bring them closer to resolving their dispute. If an acceptable resolution is not reached, provision is made for a second or third consideration with higher levels of management and union officials involved. The parties are required to follow the grievance procedure in the collective agreement. Failure to adhere to mandatory procedural requirements can be fatal to a party's case; whether collective agreement language on procedure is mandatory may be an important issue. The collective agreement may also confer specific substantive rights, such as union representation at all disciplinary meetings. 'Ibid at 10.

5 3 It is understood by the participants that any discussions that occur at a grievance meeting will not be entered as evidence at the arbitration hearing, should the case proceed that far. The one exception is that any admissions made by a party, which are not in the party's own interest and which are relevant to the matter in dispute, may be admissible at the hearing. 3 Clients should be advised that grievance meetings are an important opportunity to gather information - both facts and the other party's position on the issues. The party against whom the complaint is filed may respond by denying the grievance in one ofthree ways: (1) with a blanket statement of denial; (2) with a statement of denial accompanied by an explanation for refusing the grievance; or (3) with a formal answer which discusses the party's position in detai1. 4 Unlike litigation, arbitration has no pre-trial procedure formalizing disclosure. The test for disclosure at this point is that both parties must give sufficient basic information to give the other party adequate opportunity to meet the case against that party; a general statement ofthe basic grounds should be sufficient. Of course, ifthe collective agreement sets out specific disclosure requirements, both parties must follow the terms of the agreement.. PREPARING FOR THE HEARING If the complaint is not resolved, either party (union or management) may decide to pursue the matter to arbitration. Assuming the collective agreement gives them a choice, the parties choose by agreement either an individual arbitrator or a panel of three arbitrators to hear the case. The lawyers or representatives must weigh the pros and cons of each scenario to determine whether an 3Supra note 1 at Ibid at 13.

6 4 individual arbitrator or an arbitration board will best suit the needs oftheir client(s). If the parties are unable to agree on a selection, an appointment will be made by the Minister of Labour or another designated agency. Where the collective agreement will set out the procedure for choosing an arbitrator, the terms of the agreement must be followed. It is a good idea to read the collective agreement carefully to ensure compliance during the selection process. Whether it is a question of agreeing on a sole arbitrator or choosing your party's nominee to a panel, it is important to know the "track record" of potential nominees, especially on the key issues arising in the particular grievance. There are some excellent arbitral case law databases which can be used to focus the selection of arbitrator. Once the arbitrator has been chosen, a hearing date is set. The arbitrator will usually notify the parties ofthe scheduled date and place ofthe arbitration hearing. It is the responsibility of each party to notify any other persons, who may be affected or who have an interest in attending the hearing, of the scheduled time and place. The notice of hearing should set out the names of the parties and the arbitrator(s), a description of the grievance, and the date, time, and place of the hearing. The notice should be served sufficiently in advance of the hearing that the individual affected has time to prepare. 5 The essential steps in preparing for an arbitration case are as follows: (I) ascertain the facts; (2) identify the issues; 5J. Sack, Q.C., Winning Cases at Grievance Arbitrations (Toronto: Lancaster House, 1993) at 37.

7 5 (3) develop a theory ofthe case; (4) research the law; (5) obtain documents and particulars; (6) prepare witnesses; (7) compose opening statement; (8) draft final argument in advance. 6 Ascertain the facts It is important to gather all the facts needed to fully present your case. At this stage, conduct a broad canvassing of all the information you can find. Do not attempt to make an initial judgment about relevance. Instead, attempt to obtain any information that may prove useful to your case. It will be helpful to obtain the following: a copy of the grievance and replies; any reports by people involved; notes from participants of the grievance meetings; personnel files; policies, rules and procedures; and any supervisors' reports. 7 1t is also important to gather evidence of past practice in similar cases, and to review the law on past practice evidence to see how this information can be utilized for or against your position. Identify the issues IdentifY as many legal issues as possible, and also any unique or significant evidentiary issues.. It is very important to anticipate any issues that might be raised by the opposing side. Do 6Supra note 4 at Supra note I at 34.

8 6 not underestimate the other side. You should also focus on interpreting and analysing the collective agreement. 8 Develop a theory of the case Building upon the facts and legal issues you have identified, develop a theory of the case that will persuade the arbitrator to find in your favour. In developing a theory you must anticipate the theories which may be advanced by your opponent. The most effective way to fend off an attack by the opposite side is to imagine the strongest case that may be made against you and tailor your argument in response. While it is important to stress the strengths of your case, it could prove devastating to ignore the weaknesses. Research the law Review decisions from other arbitration cases to see if rulings have been made on the issue(s) involved. Pay particular attention to highly respected local arbitrators and recent developments in arbitral jurisprudence. Prepare opening statements and final arguments It may be useful to prepare an outline of your arguments to keep you focussed and organized. These statements are your opportunity to present your version of the case. While it is important to anticipate your opponent's position while preparing your case, you should avoid presenting these opposing views in your opening or final statements as they may suggest issues the other side has neglected. 9 Conclude your statements by summing up your position and clearly specifying the remedy you are seeking. 8Ibid at Supra note 4 at 49.

9 7 Obtain documents and particulars Each party is generally entitled to know the case it will be required to answer. If the grievance or the remedy being sought is not clear, a party should attempt to clarify it in advance of the hearing. Production of documents in an arbitration should not be confused with the process of discovery in civil litigation. There is no discovery in arbitration. However, an arbitrator can require the production of certain documents. While the parties may object to production on the grounds that the documents sought are privileged, the final decision is at the discretion of the arbitrator. The rules of civil procedure and the rules of court often serve as a guideline for production issues; however, the arbitrator is not bound to follow them. As with any other aspect of arbitration, the collective agreement may specify disclosure requirements; if so, the arbitrator will ensure that the parties comply. Clearly, an arbitrator has the authority to issue subpoenas requiring a person to attend or to bring specified documents to the arbitration hearing. The service ofthe subpoena and the payment of any associated fees is the responsibility ofthe person causing it to be issued. Any objections to a subpoena should be raised promptly. If a subpoena is not complied with, it is possible to enforce it through the courts. However, the party seeking to enforce it must initiate the contempt proceedings. lo loj.f.w. Weatherill, A Practical Guide to Labour Arbitration Procedure, 2d ed. (Aurora: Canada Law Book, 1998) at 19.

10 8 The Trade Union Act gives arbitrators the power to compel the appearance of witnesses but does not mention any power to compel pre-hearing production of documents. Some arbitrators take this to mean they cannot order pre-hearing production and documents must be obtained by subpoena duces tecum. This occasionally means a hearing date where witnesses appear with their documents, with a subsequent adjournment so the party seeking documents from the other side can examine them. Other arbitrators interpret their statutory powers to include the power to order pre-hearing production, on satisfactory evidence that the documents sought are relevant and directly related to the issues of the grievance, where pre-hearing production will facilitate and advance the hearing II Prepare witnesses Here are some tips on how to effectively prepare your witness: Conduct an initial interview in private. Get the witness to relay everything he/she remembers about the event. Stress that it is not the witness' job to make judgments. They should merely relay accurate information. Question witnesses thoroughly about surrounding circumstances. Take detailed notes. Conduct a realistic cross examination of your witness - but don't do it the day before he hearing! This will help you acquire additional information and will give you the opportunity to test the witness' effectiveness. You should focus on the areas where the witness seems uncertain or where there are inconsistencies. II For an excellent summary of case law on this point, see IBEW and Nova Scotia Power, Dept of Labour No (Blackburn) (September 25, 1997) (unreported)

11 9 Prepare the witness for testitying. Explain how the hearing process will work as well as the witness' role (which is to give clear and direct evidence to the best ofhislher recollection as accurately as possible). Ask the witness to prepare a written statement of what was said during the initial interview. This can be referred to later to refresh the witness' memory. Direct the witness not to discuss the interview with anyone. Obtain information about the qualifications and specialties of any expert witnesses. Explore the factual basis ofthe expert opinion and determine whether these facts are assumed or need to be proved by other witnesses. Ascertain the expert's opinion and familiarize yourself with hislher report. 12 It may also be useful to provide your witnesses with a guide that outlines the important points to be kept in mind while testitying. Lawyers and representatives should stress the following socalled ten commandments of witness preparation: Remember why you are there - the role of the witness is to provide facts and information not to form judgments Treat people with respect - do not be arrogant or patronizing. Think before you answer - take time to respond to the question that was asked. Answer the question only - answer the question concisely and accurately with facts not opinions. If you don't understand the question, say so - a witness is legally bound to tell the truth so be honest. 12Supra note 1 at &39. See also note 4 at 57.

12 10 If you don't know, don't guess - do not be embarrassed to say you do not know or do not remember. Don't get mad - getting mad may result in a loss of credibility. Remember, you are not on trial - do not be apprehensive or nervous; speak cahnly, clearly and precisely. Focus on the person asking the question - avoid getting distracted or confused; concentrate on what is being asked. Don't be a witness and counsel at the same time - avoid battling with the other counselor trying to take charge of the hearing. 13 In addition to preparing your witnesses, you should compile a list of all the witnesses you intend to call as well as the evidence you wish to elicit from them. For organizational purposes, outline which documents and exhibits you wish to have proved and entered by each witnesses. It is advisable to lead off your presentation with a strong witness, who will give the arbitrator a clear sense of your evidence. THE HEARING Before the hearing begins, you should introduce yourself to the arbitrator and give himlher a list of those involved in the presentation ofthe case. It is not necessary to introduce your witnesses until they are called to testify.14 In fact, since you are not required to disclose your witness list, you may not even want them to attend until they are going to testify. 13Supra note 1 at See also note 4 at Supra note 4 at 69.

13 11 You should also arrive prepared to file a copy of the collective agreement, a copy of the grievance and the replies to the grievance. Any preliminary matters should be addressed at the outset of the hearing. If these issues are simple in nature, the arbitrator will make a ruling on them before proceeding with the hearing. However, the arbitrator may postpone a decision on more complicated preliminary matters until the substance of the case has been heard. Some typical preliminary issues include: (a) (b) (c) Production of documents Arbitrability ofthe complaint Timeliness of grievance Evidence The order of presentation at the hearing is determined by the burden of proof. The party filing the grievance usually has the burden of proof. The exception is in discipline or dismissal cases, where the employer bears the burden. Arbitrators have the jurisdiction to hear and determine questions of the interpretation, application or alleged violation of a collective agreement. This jurisdiction is either conferred by the parties under a collective agreement or by force of law. IS Arbitrators are not obliged to follow the formalities of a court of law. They have the discretion to establish the procedure and level of formality as well as to determine the admissibility of various types of evidence. Thus, it may be ISSupra note 10 at 50.

14 12 helpful to investigate some of the arbitrator's prior rulings to determine hislher preferences and tendencies regarding the admissibility of different forms of evidence. Although arbitrations do not follow a rigid formality, there is an accepted procedure for dealing with evidence. One unwritten rule is that the parties should admit any undisputed facts or evidence rather than waste time trying to prove unnecessary or insignificant matters. However, one should be careful about admissions. When it is necessary to present evidence on a certain issue, the procedure for proving a document is to present it to the witness (who presumably has knowledge of it) and to ask the witness to identify it from hislher knowledge or recollection. Bring a sufficient number of copies of the documents you are relying on, for the arbitrator(s), witness, and the other party's representative. You should also bring the original documents to the hearing in case there is any dispute about their authenticity. When attempting to admit photographs into evidence, the person who took the photograph should introduce it at the hearing, unless the other side agrees to have it admitted without the presence or testimony of the photographer. It may also be helpful to make use of visual aids to add strength to your presentation. This is normally accepted at arbitration hearings, however, you must ensure that they are accurate and supportable by other documents or records. 16 Medical reports may be admitted with the consent ofthe parties. Ifthere is no objection to admitting these documents, then it is not necessary to have a doctor testify regarding their contents. 16Supra note 1 at

15 13 However, if there is any contention among the parties, the party seeking to admit the documents should have a doctor testify in support of their contents. The other side should be given a copy of these documents. 17 Although hearsay should be excluded, it is at the discretion of the arbitrator to admit whatever evidence he/she considers proper, whether it would be admissible in a court oflaw or not. IS The arbitrator's main concern, in admitting any kind of evidence, is usually procedural fairness and prejudice to a party if the evidence is key to the outcome of the case. The arbitrator may also take a view of facilities or a work location. However, this can only be done with the knowledge and presence of both parties. Normally, the arbitrator will her the evidence first to determine if it is necessary to view the site. It is possible, however, for the parties to agree to a view before the evidence is heard. When talking a view of a location, the viewing group should be kept to a minimum; the proper safety precautions should be taken; and the comments of both sides should be heard by the arbitrator at the site. 19 Witnesses As in courtroom trials, a party will call hislher witness and conduct an examination in chief. Then the opposing party will have the opportunity to conduct a cross examination of the witness. The cross examination is not limited to matters that were dealt with in the examination in chief and the representative may pose leading questions. The only limitations on cross are relevance and admissibility. However, representatives should be careful in cross examining a witness on collateral I7Supra note 10 at 72. IS/bid at /bid at

16 14 matters since they will be stuck with the witness' answer. That is, they will not have an opportunity to attempt to elicit a different answer on the same collateral matter once the witness has addressed the question. After both parties have presented their case, the first party may call reply evidence. Such evidence generally should not involve any new subj ects but should merely rebut the evidence presented by the other side. You cannot "split your case" and thereby prevent the other side from making a proper defence. That is, you cannot present new evidence to bolster a case that you failed to make in the first instance or to shore up a case that has been shaken by the opposing side. 20 Upon the request of either party, the arbitrator may exclude witnesses from the hearing room. This is to prevent them from hearing the testimony of other witnesses and possibly tailoring their own testimony to fit with theses other accounts. However, an individual grievor may not be excluded from the hearing room and may choose to retain one advisor, in addition to hislher representative, even though that advisor may testify at the hearing. If a person has been called as a witness and has been present for other testimony, hislher testimony may still be heard, but it may be given less weight by the arbitrator. 21 The order of witnesses is an important element of strategy. 20Supra note 4 at Ibid at 61.

17 15 Examination in Chief Here are a few tips for conducting an effective examination in chief: Speak slowly and clearly. The arbitrator will be taking notes so give himlher the opportunity to write down the important information. Do not ask another question until the witness has finished answering the preceding question. Do not ask leading questions. You are bound by the witness' evidence. Thorough preparation is key. Be organized and prepared. Refer to an outline or checklist. Keep control of your witness. Help the witness perform hislher role of giving evidence. Use your witness effectively to prove key points. Do not dwell on the insignificant. Cross Examination It is much harder to prepare for cross examination because the witness' evidence will not be known until he/she actually testifies at the hearing. You can begin to prepare for cross by considering what witnesses the other side will call; the evidence expected from those witnesses; the

18 16 style and character ofthe witnesses; and the areas that are likely to be explored.2 2 Perhaps the best way to prepare for cross is to take notes during the examination in chief. After hearing the testimony of the other side's witness, it is essential to determine whether to cross examine at all. If a witness has not said anything incorrect or damaging, a cross examination may not be useful. In fact, it may prove more harmful in that you may reinforce the strength of the other side's case. Even if a witness' testimony is damaging, you may not want to cross examine unless there is a strong likelihood of shaking the witness or showing that hislher evidence is incorrect. 23 To summarize, the following points should be considered in order to conduct an effective a cross examination: Should the witness be cross-examined?ifyes, try to frame questions in such a way that the witness has no option but to answer the question with the information you want or with a yes or no answer. Ask your questions slowly, carefully and intelligibly. Wait until the witness has answered one question, and the arbitrator has completed taking notes before asking another question. Unless the circumstances are exceptional, treat the witness with respect and do not allow yourselfto get excited. 22 Supra note I at Ibid at

19 17 Know when to quit. If you have obtained an answer that you like, stop questioning in that area and pass on to other matters. Do not be repetitious and do not ask questions on areas of fact that are of no importance to the case. Do not accuse a witness oflying unless you are sure you can prove this fact. Control the witness, do not let the witness control you. Remember not to overdo the role of the fierce cross-examiner. Perry Mason never argued as a representative before an arbitrator. 24 Non Suit To request a non suit is to argue that the opposite party has not made out a prima facie case. If the opposite party proceeds first, then you may request a non suit after your adversary's case is closed. You can argue that your client should not be expected to respond to allegations that are not supported by the evidence. However, if you move for a non suit, most arbitrators will require you to make an election as to whether or not to call evidence. If you lose the motion, you will not be allowed to change your mind and call evidence. The risk of electing not to call evidence is substantial and the decision to request a non suit should only be made in the clearest of cases. 25 Arguments and summation The best advice for presenting your arguments and summation is to keep it simple. It is useful to summarize your evidence at the beginning of your argument. Then summarize the facts 24Ibid at Supra note 4 at 73.

20 18 and identify any major areas of conflict. Although you may feel as though you are exposing the weaknesses of your case, you must address any conflicting evidence. Propose a theory to resolve the apparent conflict. (e.g. credibility of your witness or implausibility of you opponent's evidence) You will appear all the more prepared if you confront the inconsistencies rather than simply ignoring them. You should also address any cases that seem to go against your position and explain to the arbitrator why they should not be followed in your situation. It is important to remember that the arbitrator will use common sense when considering the evidence and reaching a decision. Thus, it is best to not pretend that your position is perfect, rather you should appeal to the arbitrator's common sense by stressing the positive while dealing effectively with the negative. 26 Reply and Rebuttal The party which present its evidence first has the right to present evidence in reply, even where reply evidence could have been made part of the case in chief. This is not to be confused with splitting one's case, which is generally prohibited. Note the other party's evidence and argument in point form carefully, and highlight the key points where rebuttal is necessary. 26Supra note 1 at

21 19 CONCLUSION Regardless of how fonnal or infonnal an arbitration setting you encounter, the key to success is to be prepared. Gather the facts; isolate the issues; research the law; prepare your witnesses; and familiarize yourselfwith your case. Also, by learning about your arbitrator's practices, preferences, and previous decisions, you will be better prepared to serve your client's needs and present your case in the most effective manner. When presenting your case, it is important to state your position clearly and forcefully, while at all times remaining professional. Arbitrations can be quite different from a trial and it can take years to become a proficient representative. However, following the tips outlined above will put you on the path to success.

22