HomeMy WebLinkAboutUnion/Walker 19-04-181
Ruling on Adjournment Request by Union
[1] For reasons that I retain jurisdiction to elab orate upon in the final award between the parties, at the
conclusion of the telephone conference held on April 16, 2019, I granted the Union’s request to adjourn the
arbitrat ion hearing scheduled for April 18 and 25, 2019. I reserved on the question of whether the cancellation
fees incurred as a result for the arbitrator and hearing room expenses would be entirely paid by the Union, or
split equally by the parties.
[2] The principles to apply in the present circumstances were those set out by Arbitrator Solomatenko in
Re Shoppers Meat Market s Ltd. (Metro Provisions) and United Food and Commercial Workers International
Union, Local 633 (1984), 16 L.A.C. (3d) 184 at paras. 6 – 11, primarily focusing on basic precepts of na tural
justice. Th ese principles have been followed by others: see Arbitrator Stout’s discussion in Re Sunnybrook
Health Sciences Centre and Ont ario Nurses’ Association (Diana Armes Grievance), unreported decision dated
October 20, 2010 at para. 3 and Re Hawker Siddeley Canada Inc. v. I.A. M., Lodge 1922 (1989), 7 L.A.C (4th) 172
(Gorsky) at para. 14. See also the most recent decision of Arbitrator Janice Johnston in RE Toronto Transit
Commission and ATU, Local 113 (Georgoudakis), 2017 CarswellOnt 1596, at paras. 18 and 19.
[3] The Union acknowledges that, subject to an express provision in a collective agreement to the contrary,
arbitrat ors have authority to order one or another party to pay the full cancellation (and other) costs of an
adjournment as an incident of the arbitrator’s inherent jurisdiction to control the arb itration proceedings in
the interest of ensuring fairness. However, the Union argues the circumstances of the present adjournment
request do not justify that result, where due to the unexpected serious illness of a close family member the
Grievor , who is a lso the Union president responsible for filing the policy grievance as the duly elected
represent ative of the bargaining unit, the Grievor is reasonably unable to attend the sch eduled arbitration
hearings.
[4] The Employer does not dispute that the Grievor has experienced a family crisis that justifies her absence
from the arbit ration hearings. Nevertheless, given the three days of hearings already held in this case (f or
purposes of mediation, negotiating agreed facts and to litigate a dispute over productions), and the general
nature of the evidence that is not unique to the Grievor but rather turns on relatively unconverted facts, the
Grievor could easily be replaced by another Union representative in order to permit the hearing to proceed as
originally scheduled. In such circumstances the Employer argues that if the Union insists that the Grievor must
attend the hearing, then it should be responsible for the full can cellation fees where the Grievor’s attendance
is not absolutely necessary.
[5] Article 9.13 of the collective agreement, under which I derive my p rimary jurisdiction, states in relevant
part that “[e]ach of the part ies hereto…will share equall y the fees and expenses, if any, of the chairperson of
the Arbitration Board.” In Re Shoppers Meat Markets Ltd., supra, in the context of similar contractual language
mandatin g the equa l sharing of the arbitration costs, Arbitrator Solomatenko considered the following factors
in ordering one party alone to pay the expenses of an abortive arbitration proceedin g, at paras. 10 – 11:
¶ 10. Accepting that an arbitrator may award costs as a term of granting an adjournment, the question still remains
as to the circumstances under which that discretion should be exercised. Although each request must ultimately be
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decided on its own merits, there must still be some regard for general principles or guidelines against which to assess
the request. Certainly, extraordinary costs, such as the transportation costs of witnesses in the Air Canada case,
should receive strong consideration for reimbursement. Whether or not the party seeking the adjournment has given
prior notice to the other par ty is similarly a relevant factor. Costs may also be appropriate where there is abuse of
the process or the party seeking the adjournment has been singularly responsible for numerous delays. The
overriding consideration, however, must be the labour relations context itself. It is a long-established principle of the
labour arbitration process that each party shares equally in the costs of the procedure, regardless of its success in
the matter. Whether costs of an abortive hearing are awarded as a term of granting an adjournment, it should still be
in the context of this historical principle that the parties normally share all costs.
¶ 11. Awarding costs on a punitive basis has no place in the labour relations context. Litigants in a court action
are only concerned with the one time financial outcome of the suit; there is usually no concern about any ongoing
relations hip of the litigants thereafter. But, the opposite prevails in the context of labour relations. Notwithstanding
that arbitrati on is an adversarial process, the participants are still subject to an ongoing legal relationship after the
conclusion of any one case. Perhaps, trite, but it bears emphasis that there is a certain amount of give and take to
the collective bargaining relationship. On a given occasion, one party may incur some additional costs attributable to
the other party, but the reverse may be true on the next occasion. As a general rule, costs of an abortive hearing
should only be awarded where there are extraordinary factors, as previously mentioned, such that it can be
said objectively that it would be unfair for the other party to bear those costs, notwithstanding that costs of
the process usually balance out over the long-term.
[Emphasis added]
[6] Adopting the foregoing principles, I find that the Grievor, who is also the Union’s president, is
experiencing an event in the her life and that of a close family member that can be reasonably characterized
as an “emergency”, requiring her urgent attention elsew here at a difficult family time, which Union counsel
informed Employer counsel about as soon as these circumstances became known. While the Grievor’s
participation in the grievance may not be critical to the Union’s case, as the person who has filed an in dividual
grievance, and as the elected p resident of the Union responsible for the bargaining unit affairs, it is the
traditional practice in the labour relations context that the Grievor has an inherent right to attend the
arbitrat ion proceedings, if only to satisfy a personal interest in the outcome of the case and that the Grievor
has had a full opportunity to make his or her case known. The Grievor’s inabilit y to attend the hearing in the
present case is real and her absence in the circumstances would d eny the Grievor the opportunity to witness
her case being presented to an independent arbitrator along with any satisfaction of thus seeing and having
her “day in court”, which would otherwise be contrary to the overall objectives of the parties’ dispute
resolution process. Given the nature of the grievance which is basically one of contractual interpretation of
less apparent urgency (i.e. as opposed to a discharge case or one that any delay reasonably exposes the
Employer to unreasonable prejudice), and t he slow pace of these arbitration proceedings where the parties,
on agreement, have accept ed process that has already extended for more than 18 months before me, it was
appropriate in balancing the relevant interests of the parties to grant the Union’s adjournment request.
[7] Since the reasons for the adjournment request cannot be ascribed to the “fault” of anyone, it is not
appropriate in the context of an ongoing employment relationship under a collective agreement to require the
Union to agree, or to order the Union to pay the full costs of the cancellation of the originally scheduled
arbitrat ion hearings set for April 18 and 25, 2019. Consequently, applying the foregoing principles in the
arbitral jurisprudence for exercising m y discretion to control the arbitration proceedin gs, I make no order as to
“costs” as a condition of grant ing the Union’s adjournment request and hence in accordance with article 9.13
of the collective agreement, each party will pay their half share of the cancellation f ees incurred by the
arbitrat or as a result of the adjournment.
[8] My office will conseq uently confer with counsel for the parties to reschedule on consent the two
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adjourned hearing da ys in the usual course.
DATED AT MARKHAM, ONTARIO THIS 18TH DAY OF APRIL, 2019.
“G. F. Luborsky”
Gordon F. Luborsky,
Sole Arbitrator