The last five years have brought a dramatic (sometimes traumatic) change to how labour arbitrations hearings are conducted. Prior to the COVID-19 pandemic, labour arbitration was almost exclusively held in-person. In those “before times”, the technology required to conduct a virtual hearing was seen as either inferior, mysterious or both. During the pandemic, the prevailing perceptions evolved due to the in-person gathering restrictions that were imposed by governments to control the pandemic. As a result, arbitrators, employers and unions were forced to adapt to holding arbitrations virtually for several years. This stop-gap measure appears to have led to a permanent transformation of the way that arbitrations are held.
That being said, and while the majority of arbitrations in the “after times” continue to be held virtually, on some occasions, the union and the employer may take differing positions with regard to whether a hearing should be held virtually or in-person. In these cases, arbitrators will weigh in and decide the issue based on the factors and considerations detailed below.
General default: Virtual hearing
Generally, the post COVID-19 case law reveals that arbitrators will order a hearing to proceed virtually absent a compelling reason demonstrated by the objecting party that justifies the contrary result.[1] While assessing whether to order a virtual or in-person hearing, arbitrators will consider the balance of the interests of the parties, including the need to maintain the essential integrity and fairness of the hearing process, while having regard to the particular facts and circumstances of each case.[2]
As Arbitrator Anderson noted in Ontario Public Service Employees Union, Local 548 v. Toronto Bail Program, the vast majority of arbitration hearings in Ontario post-COVID-19 continue to be held by means of videoconferencing on the agreement of the parties.[3] Accordingly, arbitrators have highlighted that unions and employers appear to generally expect that arbitrations will continue to be held remotely.[4]
Further, arbitrators recognize that the underlying purpose of arbitration hearings is to provide unions and employers with an expeditious, cost-effective method of dispute resolution. As Arbitrator Seveny noted in Canadian Union of Public Employees, Local 543 v. Windsor (City), videoconference hearings are more cost-effective than in-person hearings and hybrid hearings.[5] In-person hearings may include the cost of the arbitration venue and/or travel (i.e., hotel rooms, meeting rooms and/or transportation).[6] While hybrid hearings may include the costs of the arbitration venue and/or the costs associated with the use of the technology required to facilitate the hearing.[7]
Unlike Ontario, however, Arbitrator Asbell noted in Extendicare Canada Inc. Fairmont Park v. Alberta Union of Provincial Employees Local 048/005 et al. that, in Alberta, there is no default or presumption that an arbitration will proceed in either format.[8] As a result, the discretion in these circumstances rests in the hands of the arbitrator to determine how a hearing will be run.[9] In Extendicare, Arbitrator Asbell concluded that, where the assessment is not tipped towards either approach, the balance should tip in favour of the grievor’s preference to ensure that the grievor has the ability to proceed in a manner that provides the most assurance, from the grievor’s perspective, of a fair hearing given that grievor’s livelihood is at issue.[10]
Circumstances where a remote hearing may be preferable
Typically, the party in favour of proceeding by way of a remote hearing will rely on one or more of the following bases to support their position:
- Video hearings are generally more expedient, efficient and cost effective;
- The fairness and integrity of video hearings is at least comparable, and in some cases, better, than in-person hearings;
- Video hearings are an effective mechanism of clearing any backlog within the arbitration system (i.e., with respect to outstanding in-person hearings to be scheduled); and
- The “quality of justice” in grievance arbitration hearings is equal whether the hearing is in-person or by video conference.[11]
While assessing the potential drawbacks of proceeding by way of video conferencing, arbitrators have repeatedly concluded that concerns with regard to the ability to evaluate or assess credibility during a virtual hearing are no longer a sufficient reason, in and of themselves, to overcome the presumption of the hearing proceeding remotely.[12] In fact, arbitrators have concluded that they can assess issues going to credibility equally as between in-person and video conferencing hearings, including in discharge cases.[13]
Circumstances where an in-person hearing may be preferable
The party that is in favour of proceeding by way of an in-person hearing will generally take the position that virtual hearings do not offer the same kind of direct context and contact as afforded through an in-person hearing.[14] In particular, where the union objects to proceeding by way of a videoconference hearing, the union frequently takes one or more of the following positions:
- Virtual hearings are impersonal and do not provide the grievor with the opportunity of “looking their accuser in the eye”;
- Virtual hearings do not enable the grievor to “feel” or absorb the dynamics of the room (as can be felt and/or experienced during an in-person hearing);
- The grievor’s individual circumstances may be problematic with regard to the grievor’s ability to fully access and understand the virtual proceedings as virtual hearings assume that the grievor has ready access to a computer and is fully computer literate, neither of which may be the case; and
- Virtual hearings are susceptible to technical glitches which may result in considerable and unnecessary delay.[15]
Key takeaways: What employers need to know
In light of the impact of the transition to virtual hearings throughout the COVID-19 pandemic, we expect that, absent a compelling reason that is demonstrated by the objecting party and necessitates proceeding by way of an in-person hearing, arbitrators are generally defaulting to virtual hearings.
Arbitrators have consistently acknowledged that, despite initial perceptions in the “before times”, videoconferencing has proven to be a fair, cost-effective means of arbitrating grievances under collective agreements.[16] As a result, arbitrators have repeatedly concluded that videoconference hearings present an equal access to and quality of justice as an in-person hearing.[17] Further, arbitrators have noted that the vast majority of arbitration hearings in Ontario continue to be held by means of videoconferencing on the agreement of the parties.[18] Therefore, arbitrators have refrained from ordering an in-person hearing absent a compelling reason that is demonstrated by the objecting party and necessitates proceeding in this manner.
For more information on this topic, please contact Russell Groves and Claire Browne.
[1] Southampton Nursing Home v Service Employees International Union, Local 1 Canada, 2020 CanLII 26933 (ON LA) at para 41 (“Southampton”); Canadian Union of Public Employees, Local 543 v Windsor (City), 2023 CanLII 104942 (ON LA) at para 44 (“Windsor (City)”).
[2] Southampton at para 41.
[3] Ontario Public Service Employees Union, Local 548 v Toronto Bail Program, 2023 CanLII 1820 (ON LA) at para 14 (“Toronto Bail Program”); Windsor (City) at para 44.
[4] Toronto Bail Program at para 15.
[5] Windsor (City) at para 50.
[6] Windsor (City) at para 50.
[7] Windsor (City) at para 51.
[8] Extendicare Canada Inc. Fairmont Park v Alberta Union of Provincial Employees Local 048/005 et al., 2023 CanLII 65795 (AB GAA) at para 12 (“Extendicare”).
[9] Extendicare at para 13.
[10] Extendicare at para 13.
[11] Extendicare at paras 5-6; Windsor (City) at para 44.
[12] Extendicare at para 12.
[13] Windsor (City) at para 44.
[14] Extendicare at para 8.
[15] Extendicare at paras 8 and 10.
[16] Windsor (City) at para 43-44.
[17] Windsor (City) at para 44.
[18] Windsor (City) at para 44.
