The advent of the New Year fuels renewed hope for change and improvement in every endeavor, even grievance arbitration.

In April 2011, Ontario’s Chief Justice, Warren Winkler, identified a critical need to reform our grievance arbitration system.  At a talk hosted by the Centre for Law in the Contemporary Workplace Justice Winkler characterized the system as moribund. Grievance arbitration is slow, expensive, and costly among other things.  He placed the responsibility for reform of grievance arbitration squarely upon the shoulders of grievance arbitrators themselves.

Winkler called on arbitrators to start to be ‘proactive, managing the hearings so they can be done more efficiently.”  In his view, arbitrators need to assert their authority over the hearing by telling “the parties what they have to do.”  Winkler drew upon the civil justice system to indicate a path to reform.  He noted that proportionality was inserted into the civil rules in order to allow judges to balance the cost and time of a piece of litigation against the amount and the importance of the issue being contested.  As a result, the proper arbitral response to an adjournment request might be “you can’t have another day, I am here and I am going to decide the case now.” Especially, if the matter being litigated is a minor dispute that could be disposed of in two hours instead of three days.   His talk was frank and aimed at refurbishing a corroded dispute resolution system that had served management and unions since 1944.  But were his remarks calling on labour arbitrators to lead reform realistic?

Given his long practice as a labour lawyer, Mr. Justice Winkler knows that unlike the civil system the parties select their own ‘judges.’  With the exception of provisions in the labour statute that permit the government selection of an arbitrator to a grievance, parties usually agree to arbitrators prior to their appointment.  Certain arbitrators have reputations with counsel for quickly resolving hearings and others take a somewhat more “hands-off” approach to dispute resolution.  In fact, there are websites that centralize the diaries of arbitrators (i.e. Arbdates) so that parties can easily compare and contrast the availability of arbitrators that are acceptable to both sides. Still other arbitrators provide independent websites to facilitate selection.  In either case, parties are not unsophisticated, and they get the arbitrator that they jointly want regardless of whether a hearing may be prolonged.  As it stands, the system of selection provides little real incentive to reform regardless of Mr. Justice Winkler’s warning. So what is the likelihood that 2012 will see proportionality inserted into the labour statute to allow arbitrators to better manage the hearing time of grievances?

At the beginning of the year, grievance arbitration reform is not on the radar of the provincial legislature.  In Ontario, Minister of Labour Linda Jeffrey has legislative plans to provide up to eight weeks of unpaid job leave for employees to provide care and support to a sick or injured family member.  However, as of yet, there is no statutory reform announced to streamline hearings between unions and employers in the labour statute.  But does that mean arbitrators can do nothing but wait for the legislature to act?

There is still room in the present system for innovation to ensure the timely resolution of many disputes.  For instance, grievance arbitrators may navigate through their hearings more efficiently by looking to the consultation model presently used at the Ontario Labour Relations Board.  In a duty of fair representation application, a consultation may be used by the Board to draw out the facts and arguments necessary to decide whether there has been a violation of the statute.  The Board may question the parties and their representatives, express its views, define or re‑define the issues, and make determinations as to what matters are agreed to or are in dispute.  In a consultation, the giving of evidence under oath and the cross‑examination of witnesses are not normally undertaken, except when the Board permits it.  If this approach were applied to minor matters at grievance arbitrations it could drastically cut the length of litigation in many cases. In the spirit of Winkler’s call to manage hearing time, arbitrators should begin to seek agreement to a consultation process with parties that have failed to mediate a settlement where the cost and time of a grievance exceeds the amount and the importance of the issue being litigated.  If even a handful of arbitrators begin to heed the Chief’s call to innovate within their hearings then this year we may see grievance arbitration become more accessible and responsive to the needs of the parties.  That development would hold out the promise of a Happy New Year for employers and unions alike.