Did Weber Affect the Timeliness of Arbitration?

• Author: Kevin Banks, Richard Chaykowski, & George Slotsve
• Pages: 201-227

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 

Did Weber Aect the Timeliness

ofArbitration?

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-

arbitration-conict-resolution.htm.

 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 .