On October 20, 2011, Mr. Justice Martineau of the Federal Court of Canada granted CUPW’s request (See Syndicat des travailleurs et travailleuses des postes c.Société canadienne des postes  [2011] A.C.F. no 1459) to postpone the arbitration until a final decision on the merits of its judicial review application have been determined.

Among other things, Mr. Justice Martineau found that in terms of linguistic rights there clearly was irreparable harm in the case. He wrote:

The union is clearly at a disadvantage by havng to proceed with the arbitration before Arbitrator Osborne, who is apparently English-speaking unilingual, in a language that it has clearly not opted for, particularly since there will be no practical way for the parties or the Court to subsequently check whether the translation provided at the hearing by the interpreters is accurate in every way…In addition, the union’s main counsel…must present his case before the arbitrator in a language other than his own. [Translation – SGM/2012-001]

Martineau also noted that the final offer selection process employed in the arbitration could irreparably harm the union if it won its judicial review application.  CUPW would be required to reveal its entire position to the Employer in its final offer selection submission if the arbitration proceeded. Canada Post could later use that information to prepare its own submission in a subsequently ordered arbitration hearing if the judicial review succeeded.

CUPW planned to argue that, in view of the high stakes final offer selection method employed in the arbitration hearing and the complexity of non wage issues, it was essential that the arbitrator have more labour relations expertise than could be demonstrated.  In this respect, CUPW’s proposed argument was reminiscent of the arguments launched in C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539.  In that case, the Supreme Court found that the Minister of Labour in Ontario could select arbitrators from candidates who were qualified not only by their impartiality, but by their expertise and general acceptance in the labour relations community. Consequently, the appointment of an inexpert and inexperienced arbitrator who is not seen as generally acceptable in the labour relations community is a defect in the appointment of an interest arbitrator under the relevant statute. However, the judicial review hearing anticipated toward the end of January became seemingly moot with the resignation of the arbitrator appointed by the federal government.

On November 3, 2011, retired Justice Coulter Osborne reacted to the Federal Court’s decision by tendering his resignation to the Minister of Labour, Lisa Raitt.  Mr. Justice Osborne stated that “As a consequence of a Federal Court of Canada order staying the arbitration until the completion of the broadly based attack as to the constitutionality of the Restoring Mail Deliver For Canadians Act, it is apparent to me that the arbitration will not continue for a lengthy period of time.”  The Minister of Labour indicated another arbitrator will be appointed, after she had reviewed all the candidates.  To date, no replacement has been named publicly.

Whenever that occurs, constitutional litigation could still scuttle any future arbitration held by another arbitrator appointed pursuant to the statute.   CUPW has filed a separate constitutional challenge against the back-to-work legislation, arguing it violates their freedom to associate under the Charter of Rights and Freedoms.  In view of these events and ongoing constitutional litigation only one outcome is assured.  The Union and Employer will not achieve a new collective agreement in a timely way despite rotating strikes and a lockout extending back to June of 2011.  However, there is a potential silver lining in all these proceedings.

If the parties wanted to they could still agree to a collective agreement and resolve their longstanding dispute. Section 13 of the Restoring Mail Delivery for Canadians Act – the back-to-work legislation establishing final offer arbitration to end the dispute – allows the Employer and the Union to enter into a new collective agreement before the federally appointed arbitrator makes a decision in the matter.  With the assistance of a skilled neutral the parties could use this interregnum in the arbitration to agree to set up an alternative bargaining process that could conclude a new collective agreement. There are a variety of methods available to induce parties to bargain a collective agreement swiftly even though the recent acrimonious relationship evident in this round of bargaining may suggests agreement to be impossible.

If CUPW and Canada Post were to decide that a bargained solution is still preferable to an imposed agreement real labour relations peace could take hold in the workplace.  Fortunately, the parties may now be seriously considering this voluntary option.  After the resignation of Osborne,Canada Post indicated that a prolonged process could cause “long-term detriment” to the company. For its part, CUPW was encouraging the Minister of Labour to appoint an experienced and bilingual mediator, to work with the parties to negotiate a collective agreement, instead of replacing the arbitrator.  Although a bargained resolution may seem overly optimistic given the history of this dispute we will keep you posted if any positive developments arise that help to resolve this conflict.