Another Ontario municipality has lost its bid to force a grievance hearing from virtual to in-person. Earlier this week, HR Law Canada reported on a discharge case involving the City of Toronto and the Canadian Union of Public Employees (CUPE) where arbitrator Mark Hart ruled in favour of a virtual format.
Toronto argued for in-person, while CUPE dug in that it preferred arbitration via webcam.
Now, the City of Windsor has lost its bid to have an in-person hearing for a termination grievance that also involved CUPE. The hearing, scheduled for Jan. 24-25, 2024, will now be held via Zoom — which was the union’s preference.
The union argued that the widespread adoption of videoconference technology during the COVID-19 pandemic had proven its effectiveness in conducting hearings, even in cases where witness credibility is a key factor. They cited several cases to support their stance that videoconferencing is now a suitable and often preferred method for arbitration hearings.
On the other hand, the employer maintained that in-person hearings should remain the standard, especially in significant cases like employment terminations where credibility is at stake. They argued that each case should be evaluated on its own merits, considering factors such as case importance, issues involved, witness convenience, and costs.
The arbitrator, reflecting on the evolution of arbitration practices influenced by the pandemic, noted a shift in their own perspective.
“After some three years of conducting hearings by videoconference, it is my view that credibility in grievance arbitration matters is not better determined by an in-person hearing,” said arbitrator Yvon Seveny. “Videoconferencing is the in-person hearings’ equal in that regard.”
Seveny also noted that virtual hearings are mostly immune from things like snow storms or travel disruptions that can cancel or delay in-person hearings. Plus, virtual hearings cost less — there is no need for meeting rooms, meals, hotels, and travel-related expenses.
Previously, hearings were predominantly in-person, but the pandemic necessitated a rapid adaptation to videoconferencing. This change, initially born of necessity, has since become a preferred method for many in the arbitration community.
“One of the matters discussed in the present case is that all the witnesses are in Windsor (or near Windsor) where this hearing would be held if it is in-person,” Seveny said. “However, as the Union points out, with a videoconference hearing, witnesses do not have to sit around a hotel for a day or more, or even part of a day, waiting to be called to give their evidence.”
The arbitrator’s decision was informed by a comprehensive review of relevant cases and considerations, including the ongoing risk of COVID-19 and other illnesses, the cost-effectiveness of videoconferencing, and the convenience it offers to participants. The arbitrator found that videoconferencing offers equal access to justice compared to in-person hearings and that issues of credibility can be effectively assessed through this medium.
Ultimately, the arbitrator directed that the grievance hearing proceed by videoconference, recognizing it as a valid and efficient method that aligns with current practices and preferences in the field of labour arbitration. This decision marks a significant acknowledgment of the evolving nature of arbitration proceedings and the role of technology in facilitating these processes.
The hearing is now set to begin on Jan. 24, 2024, at 10 a.m. via Zoom.
For more information, see Canadian Union of Public Employees, Local 543 v Windsor (City), 2023 CanLII 104942 (ON LA)
