Did Weber Affect the Timeliness of Arbitration?

AuthorKevin Banks, Richard Chaykowski, & George Slotsve
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 
Did Weber Aect the Timeliness
Kevin Bnks, ichrd Chkowski, & Geore Sotsve*
In two recent papers, Ontario’s then Chief Justice Warren Winkler de-
scribed the present system of grievance arbitration as one which “can be
slow, expensive and detached from the realities of the workplace. He
argued that it “has lost its course, has lost its trajectory, has lost its vision,
and “is at risk of becoming dysfunctional and irrelevant.
Justice Winkler was calling for a new urgency in response to an old
problem. Researchers and commentators have argued since the early
s that the system is prone to unnecessary delay. Empirical research
on time delay in arbitration shows a steady increase in the average time
from initiating a grievance to the rendering of an arbitration award in
all Canadian jurisdictions studied. Moreover, studies have shown that
* The authors gratefully acknowledge support from the National Academy of Arbitra-
tors Research and Education Fund for this research.
Warren K Winkler, “Arbitration as a Cornerstone of Industrial Justice” (Kingston, ON:
Queen’s University School of Policy Studies, ) [Winkler, “Industrial Justice”].
Warren K Winkler, “Labour Arbitration and Conict Resolution: Back to Our
Roots” (Donald Wood Lecture delivered at the Queen’s School of Policy Studies, 
November ), online: www.ontariocourts.on.ca/coa/en/ps/speeches/-labour-
Howard Goldblatt, Justice Delayed: The Arbitration Process in Ontario (Toronto:
Labour Council of Metropolitan Toronto, ).
Goldblatt, ibid; Joseph B Rose, “Statutory Expedited Grievance Arbitration: The Case
of Ontario” () : Arbitration Journal  at –; John Fricke, An Empirical
 ,  ,   
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delay in labour arbitration can harm contract negotiations, cause nan-
cial loss to the employer, harm the quality of the arbitration hearing itself
as memories of the material events dim with the passage of time, inhib-
it productivity by generating both employee restiveness and uncertainty
among supervisors and impose injustice on employees whose rights under
collective agreements are less likely to be fully vindicated as time elapses.
Given the persistence and the stakes of the problem, it is important
to understand its root causes. One prominent argument, advanced by
Chief Justice Winkler and echoed by others in the labour relations com-
munity, is that the expansion of arbitral jurisdiction has fostered delay by
increasing both the potential for litigation over the scope of arbitral juris-
diction and the complexity of legal issues with which arbitration must
deal. Among the most notable expansions of arbitral jurisdiction was
that eected by the Supreme Court of Canada’s decision in Weber v On-
tario Hydro. In Weber, the Supreme Court of Canada ruled that arbitra-
tors have exclusive jurisdiction with respect to “disputes which expressly
or inferentially arise out of the collective agreement. Weber’s denition
of arbitral jurisdiction is notoriously ambiguous, giving rise to extensive
commentary and repeated litigation over which issues fell within arbi-
tral jurisdiction and which did not. It also eectively gave the Supreme
Court’s blessing to a considerable expansion of arbitral jurisdiction be-
yond the four corners of rights and obligations contained in collective
agreements. Weber and subsequent jurisprudence applying it have found
tort actions by employees against employers, issues related to pension
plans and benet and welfare plans not expressly incorporated into col-
lective agreements, and claims of violation of the Canadian Charter of
Rights and Freedoms, to fall within the exclusive jurisdiction of labour
arbitrators. Weber thus presented labour arbitration with a host of new
Study of the Grievance Arbitration Process in Alberta (Edmonton: Alberta Labour,
); Allen Ponak & Corliss Olson, “Time Delays in Grievance Arbitration” ()
: Industrial Relations ; Kenneth W Thornicroft, “Accounting for Delay in Griev-
ance Arbitration” () : Labor Law Journal ; Gilles Trudeau, “The Internal
Grievance Process and Grievance Arbitration in Quebec: An Illustration of the North
American Methods of Resolving Disputes Arising from the Application of Collective
Agreements” () : Managerial Law .
Allen Ponak et al, “Using Event History Analysis to Model Delay in Grievance Arbi-
tration” () : Industrial and Labor Relations Review .
Winkler, “Industrial Justice,” above note .
[]  SCR  [Weber].
Ibid at para .

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