An arbitrator has dismissed an effort by Bell Canada to force a hearing to happen in person rather than via Zoom.
Bell asked the arbitrator to hold the in-person meeting, in Toronto, due to the case’s human rights allegations and credibility issues. Unifor, the union involved in the dispute, resisted that idea and took the position that a “presumption currently exists in favour of video hearings.”
On July 7, 2021, the arbitrator was appointed, and the first hearing began via videoconference, on March 1, 2022. Mediation efforts did not succeed.
Subsequent hearing dates were set for Dec. 7, 2022; Jan. 11, 2023; and Jan. 31, 2023. The arbitrator confirmed that the hearings on those dates “will continue via Zoom.”
After the Zoom links were sent, Bell’s lawyer asked for the hearing to take place in person.
“With respect to your email below, I discussed with my client (the employer) and it was our recollection that, at the last hearing in March (which turned into a mediation), you had expressed a clear preference for an in-person hearing to the extent that there were going to be human rights components to this grievance,” the lawyer wrote.
The union’s lawyer, though, said Unifor’s instruction “are to proceed virtually by Zoom and not in person for this hearing. The union does not see that there is any real advantage to proceeding in person at this point.”
In-person hearings are ‘gold standard’
First, the arbitrator agreed with Bell’s position that in-person hearings “represent the traditional gold standard, for both courts and arbitrators. However, as the legal world has discovered since the start of the pandemic, hearings can take place effectively via video conference.”
Second, it pointed out that lawyers have spent “considerable time” establishing best practices for digital hearings.
In Ontario, for example, the Joint E-Hearings Task Force of the Advocates’ Society, the Ontario Bar Association, the Federation of Ontario Law Associations, and the Ontario Trial Lawyers Association published a guide entitled Best Practices for Remote Hearings.
Public health situation
Third, while it accepted Bell’s argument that the pandemic situation is not as elevated as it was a year ago, the “public health situation remains significantly different from the time when most labour arbitrations took place in person.”
Fourth, this arbitration involves the Canadian Human Rights Act. If the matter had been heard by the Canadian Human Rights Tribunal (CHRT), it “presumably” would have proceeded by videoconference.
The CHRT considers the following factors when deciding on the type of hearing:
- the fairness and accessibility of the form of hearing
- availability of technology and tools
- health and safety requirements
- proportionality: cost, time and effort for the parties and the tribunal relative to nature of proceeding
- the parties’ preferences and interests.
The arbitrator also said that “credibility issues” alone are not sufficient reaons to hold an in-person hearing when a Zoom call van perform the same function.
Additional costs of in-person meetings
It also pointed out there would be “unforeseen additional costs” to both parties if the arbitrator had to travel to Toronto for three separate hearing dates in December 2022 and January 2023.
“Arbitrations in recent years have involved zero disbursements charges,” it said. “Had the parties originally contemplated an oral hearing, they may well have chosen an arbitrator in Toronto to avoid those costs. That consideration disappears for video hearings.”
(The arbitrator signed the document in Ottawa, meaning they were presumably based in that city — which is more than 400 kilometres from Toronto.)
Taking all that into account, the arbitrator ruled the hearings in this case would continue via Zoom.
“Both parties mentioned the ‘new normal,'” it said. “It remains to be seen whether we will return to a situation where seasonal colds and the flu represent standard risks to the population.”
It also emphasized that is decision “only addresses the current reality as of December 2022. That reality could change, especially if the courts and labour tribunals readopt in-person hearings as the default way of proceeding.”
For more information, see Unifor, Local 25 v Bell Canada, 2022 CanLII 114272 (CA LA)