The Show Must Go On; Hearings Are No Different – Arbitrations in the Time of COVID-19

What do you do when your arbitration is coming up but no one can meet face to face? The answer, for a number of arbitrators, is that you find another way to hold the hearing.

There are many reasons a party may not want to go ahead with a hearing.  In some cases, a party can ask to postpone the date. Examples include the illness of a representative or of an important witness.  It is important to remember, though, that no one has a right to an adjournment, or a veto over going ahead with a hearing.  The same is true about the way the hearing is held.  Traditionally, everyone meets in the same physical location and the evidence is presented.  Unless there is something in the collective agreement though, it’s a tradition, not a legal requirement.

It is important to remember that the Arbitrator controls the process for getting the grievance resolved.  That means deciding when the hearing is held and how it is held.

Arbitrators Goodfellow, Johnston and Luborsky, in three separate and very recent decisions, refused requests for adjournments in circumstances where the parties could not be in the same location. As an example, arbitrator Goodfellow said in a Toronto Transit Commission case that:

I am, quite simply, not persuaded that there is any risk to the TTC of it not being able to put its best foot forward, factually, or of me being deprived of the most truthful and reliable evidence, legally, to fully and fairly adjudicate the issues in dispute, simply because Mr. Grimaldi (and, possibly, one other witness) will testify remotely with Ms. Rogers having testified in-person. Finally, to be clear, I am completely unpersuaded that any Zoom-related “privacy issues” have any meaningful role to play in the process.

It is not enough to say that there may be credibility issues, so the case must proceed in person.  Arbitrators have a wide range of things they can do to manage any hearing – including electronic hearings.  It is true that technology is not perfect and there will inevitably be some glitches.  On the other hand, the same could be said for many in-person arbitrations.

There will still be situations where an arbitrator will adjourn an arbitration and reschedule for a later date.  Arbitrator Misra did that when Mount Sinai Hospital asked to postpone the hearing.  In that case, though, she was dealing with a pay issue that had remained unresolved for two years and the hospital was scrambling to find the resources to deal directly with the consequences of COVID-19 on patients. The different result in that situation was understandable.

As with any other request, most arbitrators will balance various factors.  One of the most important is the significant interest the parties have in having cases decided quickly. Against that, the party asking to put off a hearing (usually the employer) will have to show real prejudice that would be caused by going ahead and using a new technology.  The arbitrator will consider real  difficulties that are caused by proceeding with a case, but an increase in the work required to prepare and present evidence will not likely be enough.

Parties will have to decide whether they want to go forward with their cases, and they may have legitimate reasons to agree to postpone.  On the other hand, as we navigate a new and challenging labour relations reality, remember that arbitrators may be sympathetic when someone says that the hearing must go on.