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EVIDENCE
labour arbitrators and evidence admissibility While the admissibility of evidence in civil proceedings is often governed by explicit and easily ascertained guidelines, the same cannot be said for evidence admission in labour arbitration hearings. Unlike judges presiding over civil cases, arbitrators are not bound by hard and fast rules and have significant discretion when it comes to admitting or excluding evidence. Kelly Goud examines the admissibility of two types of evidence before labour arbitrators: surreptitious surveillance evidence and medical reports. Case law reveals that relevance to the matter in dispute is of utmost importance in decisions to admit, but arbitrators will exercise their discretion to exclude relevant evidence if, for example, admitting that evidence would offend notions of reasonableness or natural justice. With respect to surreptitious surveillance evidence, arbitrators will often exclude the evidence if the employer cannot show just cause for resorting to surveillance, if less-intrusive methods were not attempted beforehand, and if the surveillance was conducted in an unreasonable manner. With respect to medical reports, arbitrators will apply a different three-part test and, in the interest of natural justice, are unlikely to admit reports that are of any importance to a matter in dispute unless the author of that report is called as a witness. The approaches taken to these two types of evidence reveal that admissibility in labour arbitration will be less predictable than in civil proceedings; however, the discretion enjoyed by arbitrators allows them to take the nature of the employer-employee relationship into account and to appropriately balance the rights and interests of each party.
PROCEDURAL FAIRNESS
political expediency and procedural fairness
In a lengthy judgment issued August 23, 2006, the Federal Court confirmed in Michel Vennat v. Canada (Attorney General) that an Order in Council appointee who has been appointed either for a fixed term or “at pleasure” but subject to “good behaviour,” is entitled to procedural fairness and a “personalized inquiry” by the Governor in Council prior to any dismissal “for cause.” The facts of this case arise out of a very public dispute which resulted in the departure of François Beaudoin as President and Chief Executive Officer of the Business Development Bank (“BDC”) and the appointment of Michel Vennat as Chairperson of the BDC Board of Directors. In particular, the Court ruled that the applicant had the right to a personalized inquiry into the facts by the decision-maker and the right to respond as well as the right to a decision with sufficient reasons. Barbara McIsaac reviews the decision and the issues involved. |
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Board
John F. Blakney
Fraser Milner
Casgrain LLP
Jeff G. Cowan
WeirFoulds LLP
T. Gregory Kane, QC
Stikeman Elliott
Michael A. Penny
Torys LLP
Chris W.
Sanderson, QC
Lawson Lundell LLP
Lorne Sossin
University of Toronto,
Faculty of Law
Brenda C. Swick
McCarthy Tétrault LLP
Anne M. Wallace, QC
Wallace Meschishnick
Clackson Zawada |