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Arbitration system ‘dysfunctional’

|Written By Michael McKiernan

Editors Note: During his speech at the labour law conference referred to in this story, Larry Steinberg made it clear that the views he was referring to were those previously expressed by Ontario Chief Justice Warren Winkler and that it was his intention to comment on them.

[em]While Steinberg agrees with many of those views, the story didn't specify that he was reflecting Winkler's earlier comments.

[/em]Employers, unions, and labour lawyers all need to change the way they approach arbitration in order to save a dysfunctional system, says a new vice chairman of the Ontario Labour Relations Board.

Companies will likely face increased legal exposure over workplace accidents, says David Bannon.

Larry Steinberg, a former labour lawyer and partner at Koskie Minsky LLP appointed to the board in April, said arbitration has changed beyond recognition since the post-war era, when it was an informal, efficient, and relatively straightforward problem-solving process for disputes over collective agreements.

“Culture really is at the root of what ails arbitration today, which is not fast, which is not efficient, and which can actually exacerbate problems in the workplace rather than solve them,” Steinberg said in a keynote address to lawyers and human resources professionals at Norton Rose OR LLP’s sixth annual employment law conference on May 31.

“One of the reasons arbitration has become dysfunctional is that parties don’t take the long view most of the time. They are looking for the quick win.”

An acrimonious atmosphere at arbitration will result in a less productive workplace, while short-term victories rarely translate into long-term gains, according to Steinberg.

“What goes around comes around in labour relations. Eventually, the parties will meet in another case where the boot is on the other foot, and more significantly, the parties will have to meet in collective bargaining and actually sit across the table, reason together, and try to come up with a deal.”

Rather than getting bogged down in process and scoring points, Steinberg said parties should view arbitration more like a family dispute in “recognizing that you have to live together after the problem is solved.” In the past, he noted, parties would avoid taking certain positions in order to reduce the impact on the ongoing relationship.

“We have to get back to the idea that the arbitration process is fundamentally a problem-solving process. If we don’t get back to that way of viewing it, then we are doomed in arbitration. It’s not sustainable now. It’s not sustainable for an arbitration case to take two years to be completed. That’s a complete and utter failure of the system. It’s a betrayal of the principles on which arbitration is based.”

The evolution of the arbitration process during the last 50 years has contributed to the current state of things, according to Steinberg. It was county court judges who did early arbitrations in their spare time on the basis of written briefs and largely without the involvement of lawyers.

When judges were prevented from moonlighting in the early 1960s, a cadre of young law professors, led by Bora Laskin and Harry Arthurs among others, filled the void and brought a higher degree of legal reasoning to decisions.

While that has given Canada a rich jurisprudence admired around the world, it also added a layer of complexity to the process, especially for the parties involved, Steinberg said.

“For the people who had to live with the decisions, they were impenetrable,” he noted.

Since then, a series of decisions has significantly broadened the scope of matters decided by arbitrators.

The Supreme Court of Canada’s landmark ruling in Weber v. Ontario Hydro in 1995 meant arbitrators could hear matters such as defamation and assault when they arose out of an employment dispute. Jurisdiction has since expanded to include Charter of Rights and Freedoms applications and alleged human rights breaches.

“It makes a lot of sense for there to be one-stop shopping when you have employment disputes,” Steinberg said. “If you’ve ever had anything to do with the human rights process, you’d rather have a root canal without anesthetic than have to go through that process.

There’s a huge advantage to have this put before an arbitrator who knows the workplace and understands the relationships.”

Despite those benefits, the arbitration process has struggled to keep up with the demands on it. But by intervening early in a dispute, Steinberg believes the labour relations board can significantly reduce the number of cases that come before an arbitrator.

He said all parties would benefit from a less litigious attitude and speedier conclusions when a full hearing can cost as much as $60,000.

In the meantime, David Bannon, a partner at Norton Rose and another speaker at the conference, warned employers that an infamous construction accident on Christmas Eve in 2009 could prompt a surge in criminal negligence charges for corporations when fatalities occur.

Amendments to the Criminal Code passed in 2004 established a legal duty to “take reasonable steps to prevent bodily harm” to workers. There has been a very small number of charges across the country, and it took until 2008 to achieve the first conviction in a case in Quebec.

The 2009 accident in Toronto resulted in Ontario’s second case of criminal charges after four immigrant workers died when the swing stage they were working on collapsed and fell 13 storeys.

The company, its president, and two managers all face criminal charges, but the case has yet to come to trial.

Meanwhile, in British Columbia, the United Steelworkers union recently gained judicial approval to proceed with a private prosecution of Weyerhaeuser over the death of a worker in 2004 when he was buried under wood chips. The union has also threatened to launch private prosecutions in other provinces where prosecutors decline to pursue criminal charges.

“This is going to be a much more common occurrence, if not the norm when there is a fatality,” Bannon said.

Madeleine Loewenberg,    another employment lawyer at Norton Rose, provided an update on Bill 168 almost one year after the workplace violence and harassment provisions made their way into the Occupational Health and Safety Act.

She said Ministry of Labour officials have been out enforcing the new act, which requires employers to conduct a risk assessment of their workplaces, develop policies and procedures to address the issues identified, and have a program in place to train employees. They must also review the policy and program at least once a year.

“Ministry of Labour inspectors have been coming into workplaces and entering and asking to see the policies and program,” Loewenberg said. “Where they have not found policies and programs yet in place, they have generally ordered them to be created and posted.”

  • Barry Jimenez
    Interesting Article! Cheers!
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