Written by Rono Khan, 3L, Queens Faculty of Law
COVID-19 has impacted every industry imaginable. From health care, to education, to transportation, the pandemic has fundamentally altered the ways in which these industries are operating. The legal field and labour relations are no exception. Timelines have been extended, trials have been suspended, and hearings are no longer being conducted in-person. COVID-19 has forced legal professionals to adapt to quickly changing circumstances by adopting practices such as mandatory electronic filings of applications, delivery of applications via e-mail, and conducting proceedings via video-conference.
These practices and the shift towards contactless lawyering have presented an array of challenges for legal professionals. Besides a lack of familiarity with video-conferencing platforms (which should be the lowest hurdle to overcome), another significant challenge has been whether to continue a proceeding via video-conference, or seek an adjournment until a much later date in the hopes that an in-person appearance will be possible. In particular, the decision whether to grant an adjournment or order parties to proceed via video-conference has been a pressing issue for arbitrators in labour disputes.
Recent decisions by the Ontario Labour Relations Board (“Board”) and arbitrators have shed some light on the issue of when hearings should proceed by video-conferencing, but this is still a live debate. The general rule has been that each case will be dealt with on its own facts, and the overall trend has been that most adjournments have been granted. However, certain decisions have highlighted a shift in this trend towards ordering a hearing to proceed via video-conference absent compelling reasons why this should not happen.
In Point Farms Provincial Park, decided on March 24, 2020, the Board held that a scheduled hearing involving an application under the Occupational Health and Safety Act was to proceed via video-conference. In denying the Employer’s objection, the Board stated: “Times have changed. The Board has gained more experience with Skype hearings, and has conducted full-scale hearings by video conference, including the calling of evidence.” Further, the Board found that the Employer did not sufficiently support its claims that it would be prejudiced if the hearing continued via video-conference.
In Berkim Construction Inc, decided on March 30, 2020, the Board denied the Union’s request to hold a Skype hearing, and agreed with the Employer that continuing the hearing via tele-conference “would be wholly impractical and complicated given the number of volumes of materials as well as casebooks” that needed to be referenced in that specific case. Although the Board acknowledged that continuing the hearing via Skype “has a certain attraction given the circumstances the community faces”, the “disadvantages outweigh[ed] the advantages”. The Union already had the opportunity to present their submissions in-person, and, given the complexity of the arguments and voluminous materials to be referenced, it would be unfair if the Employer was required to proceed via video-conference.
In Southampton Nursing Home, decided on April 14, 2020, Arbitrator Luborsky drew from the decisions above and outlined general principles to be followed regarding applications to proceed via video-conference. Arbitrator Luborsky concluded that the “new norm” during the pandemic is a rebuttable presumption of granting such applications and proceeding. In order to rebut the presumption of proceeding, the objecting party must show “compelling reasons”. The arbitrator must then balance the interests of the parties, considering integrity and fairness in the hearing process, and having regard to the particular facts of each case. Applying these principles, Arbitrator Luborsky denied the Union’s application to proceed via video-conference. Arbitrator Luborsky found that the inability of key witnesses for the Employer to attend the scheduled hearings, due to their time being fully occupied in managing the COVID-19 health crisis in their workplace, outweighed the prejudice to the Union of a further delay. However, Arbitrator Luborsky did note that the hearing would not be deferred indefinitely, and could proceed once the anticipated peak in the danger of COVID-19 in long-term care homes passes and the Employer’s witnesses become available.
Finally, in TTC v ATU Local 113, decided on April 20, 2020, Arbitrator Russell Goodfellow sided with the Union and ordered the hearing between the parties to proceed via video-conference on its scheduled dates of April 23, May 6, and May 7. Arbitrator Goodfellow found that the Union would be prejudiced by an indefinite adjournment of the matter, and that the “pause button” should not be pushed given that there is no foreseeable end to social distancing. However, Arbitrator Goodfellow agreed with the Employer that “we have not yet reached any kind of ‘new normal’, in which Zoom or any other form of video-conferencing, is the presumptive way to proceed in any or all cases”, and that it will be a case-by-case analysis.
In summary, while applications to proceed via video-conference are facts-specific and may not necessarily be granted, this trend could shift as social-distancing is prolonged with no end in sight. We are already seeing competing lines of arbitral decisions beginning to emerge. In some arbitral and OLRB decisions, proceedings have been ordered to continue via video-conference, and arbitrators have emphasized the need to continue hearing workplace disputes in order to maintain confidence in the current system of labour relations. Factors to consider are the practicality of video-conferencing given the complexity of arguments and volume of materials in the proceeding, the availability of key witnesses to testify remotely, and the urgency of the matter. These factors will be weighed against the interests of the parties and any prejudice they may experience from a delay, and each case will be assessed on its own facts. As the pandemic continues to evolve, it will be interesting to observe which arbitral line ultimately dominates in this debate.
Rono Khan, “Towards a “New Normal”: Labour Law Hearings Via Video-conference in the Era of COVID-19” Canadian Law of Work Forum (May 21 2020): http://lawofwork.ca/?p=12527
Mitchell Hutchinson v Point Farms Provincial Park, 2020 CanLII 25912 (ON LRB) at para 5, (OLRB Case No: 2213-19-HS).
Ibid at para 4.
Labourers’ International Union of North America, Ontario Provincial District Council v Berkim Construction Inc., 2020 CanLII 27468 (ON LRB) at para 11, OLRB Case No: 0029-19-R.
Ibidat para 12.
Ibidat para 13.
Southampton Nursing Home v Service Employees International Union, Local 1 Canada, 2020 CanLII 26933 (ON LA), OLRB Case No: 0029-19-R.
Ibidat para 41.
Ibidat paras 49-53.
Ibidat para 55.
Toronto Transit Commission v Amalgamated Transit Union, Local 113, 2020 CanLII 28646 (ON LA) at para 18.
Ibidat para 14.
Ibidat para 15.