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November 2 & 3, 2022
Leo McGrady, Q.C., Hoskie Glavin Gordon
Guest Speakers – Chris Foy, union counsel from Kestrel Workplace Law in Vancouer, on November 2 at 10:00 AM; Mike Biskar, Lead Organiser, from UNITE HERE Local 40 on November 3 at 1:15 PM
Preliminary Reading
Please read this article before starting the course if possible: Non-Lawyer Advocates in Arbitration, Leo McGrady, B.C. Continuing Legal Education, 2002 (Appendix A).
We suggest that you bring your laptop or IPad for both days
This type of class works best as a workshop rather than as a lecture. We encourage students to ask questions as we work through the material, rather than reserve questions until the break or until the end of the class.
In the past there have been students in the class who are experienced advocates in arbitration and labour board settings. For this reason, we encourage students to offer insights that they have gained, during cases they have handled for the benefit of other students in the course. And other students should feel free to ask those persons questions.
We also have found that developing a common list of student contact information, that can be shared throughout the group of students, is very valuable. Past students attending the class have been able to contact others who have attended and continue to share their experiences, and to ask and answer questions after the class was over.
Please let me know if you wish to have your name and contact information included on that list.
As Appendix B, I have included some excerpts from the book Dying for Gold written by two Montréal Gazette journalists about the Royal Oak Mines v Canada (Labour Relations Board) case [1996] 1 SCR 369. https://www.canlii.org/en/ca/scc/doc/1996/1996canlii220/1996canlii220.html
The excerpts describe a range of cross-examination techniques used by counsel on behalf of the union in the Canada Labour Board hearing, and which illustrate different cross-examination techniques.
We will start the class by having each student take 2-3 minutes to introduce themselves, tell us their union affiliation, advocacy experience, and their objective in signing up for this class.
Finally, on Day 2 we will have a mock arbitration, using the facts set out in Appendix C to this document. We will need volunteers for each of the roles. Both participating and observing the mock arbitration are valuable. But we have found that individuals who participate in the process report an accelerated learning process, so we encourage people to volunteer. Ask for volunteers now.
Appendix D – Witness Instructions; instructions for hearing
https://www.labour-arbitrators.bc.ca
Coquitlam Inn and Convention Centre-and-CAW-Canada, Local 3000, [2001] B.C.L.R.B.D., the B.C. Labour Relations Board ruled that the original panel did not err in rejecting hearsay evidence regarding the key fact in dispute, namely whether the grievor, a server, had improperly pocketed $93 in cash or whether the customer had left without paying. To prove that the grievor had stolen the money, the employer—rather than calling the customer to testify—relied on the
evidence of its general manager to the effect that the customer had told him that he had paid in cash. As the review panel stated:
Thus weighing the need for informality and expediency against the dangers inherent in hearsay evidence, the Board developed two restrictive rules on its use. First, uncorroborated hearsay evidence should not be preferred to direct testimony. Secondly, hearsay evidence should not be admitted to establish a crucial and central question (at
p.43). The first of these propositions assumes that the direct evidence is credible. It requires that direct testimony prevail over hearsay, unless the hearsay is corroborated by other evidence. On the second point, the Board in Nanaimo School District went on to state that “… when an arbitration board allows hearsay evidence on a crucial issue, that
evidence should be given no weight unless it is corroborated by other direct sworn testimony” (at p.44).
In order to reach a conclusion on the mutual intentions of the parties regarding the introduction of Article 13.05(a), the evidence would have to be clear and cover the requirements set out in I.A.M., Local 1740 -and- John Bertram & Sons Co. (1967), 18 L.A.C. 362 (Can. Arb.) ("John Bertram"), where Arbitrator Paul Weiler commented, with
respect to the use of past practice evidence to clarify an ambiguity arising from the application of a provision in an agreement:
Hence it would seem preferable to place strict limitations on the use of past practice in our second sense of the term. I would suggest that there should be (1) no clear preponderance in favour of one meaning, stemming from the words and structure of the agreement as seen in their labour relations context; (2) conduct by one party which unambiguously is based on one meaning attributed to the relevant provision; (3) acquiescence in the conduct which is either quite clearly expressed or which can be inferred from the continuance of the practice for a long period without objection; (4) evidence that members of the union or management hierarchy who have some real responsibility for the meaning of the agreement have acquiesced in the practice. (at p. 368)
Bibliography
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