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BINDING ARBITRATION - Hearings - Procedural rights and requirements

Tuesday, July 23, 2019 @ 8:42 AM  


Appeal by the union from a decision setting aside an arbitrator’s award of damages for the employer’s failure to employ union workers as required by the collective agreement. The arbitrator assessed damages as the amount that union members would have earned had the employer complied with the collective agreement. The dispute occurred in the construction industry. Pursuant to s. 107 of the Trade Union Act, labour arbitrations were to be resolved expeditiously. The reviewing judge faulted the arbitrator’s weighing of what the judge termed as hearsay, speculation and opinion evidence. In the judge’s view, there was no cogent evidence to support the arbitrator’s findings and the arbitrator had reversed the burden of proof. The judge characterized that concern as a matter of procedural fairness, to be reviewed for correctness, and set aside the award. The judge also held that the arbitrator’s quantum of damages was punitive and unreasonable.

HELD: Appeal allowed. The judge erred by applying the standard of correctness. The judge was required to apply Dunsmuir standard of review analysis and choose between reasonableness and correctness. A labour arbitrator’s evidential rulings and findings of fact were reviewed for reasonableness, not correctness. The arbitrator’s findings as to both the availability of union labourers and the employer’s requirements were reasonable. Given s. 107’s requirement that the award issue within 48 hours of the arbitrator’s appointment, it was not feasible to expect the union to introduce a multitude of employees as witnesses. A labour arbitrator was entitled to adapt legal principles to the context of labour relations. When considering the criteria for the use of hearsay evidence, a labour arbitrator reasonably could consider the constraints of the expedited process in s. 107. The arbitrator did not fault then punish the employer by shifting the burden of proof but noted that the employer adduced no evidential obstacle to an inference that was available from the union’s evidence. Reweighing and reassessing the evidence considered by the arbitrator was not open to the reviewing judge. The reviewing judge could not overturn the arbitrator’s finding based on the judge’s view that the evidence could not result in a properly drawn inference. In assessing the reasonableness of the damage award, the judge failed to apply the proper approach to reasonableness review and mistook the arbitrator’s reasons. The arbitrator’s reasons, properly understood, reasonably applied the law and policy behind the Trade Union Act.

Labourers International Union of North America, Local 615 v. Stavco Construction Ltd., [2019] N.S.J. No. 266, Nova Scotia Court of Appeal, D.P.S. Farrar, J.E. Fichaud and A.S. Derrick JJ.A., June 19, 2019. Digest No. TLD-July222019006