An arbitrator has ruled that the Town of Whitby in Ontario must present its case first in an ongoing dispute with the Canadian Union of Public Employees (CUPE), Local 53, regarding the exclusion of certain student workers from the collective agreement.
The interim award, issued in a policy grievance, determined that the employer possesses key information about the funding and employment conditions of the disputed positions, warranting a reversal of the typical order of proceedings.
Background of the dispute
The union filed a grievance challenging the employer’s exclusion of several classifications of student workers from the terms and conditions of the collective agreement, which is in effect from June 1, 2023, to May 31, 2026. The agreement covers all part-time employees working no more than 24 hours per week, including students employed during the summer school vacation period.
However, it expressly excludes students hired under provincial or federal government grant programs (PFGG programs) and casual help.
The dispute centers on whether at least ten classifications filled by students fall within the bargaining unit. The employer contends that these positions qualify for exclusion under the scope clause, while the union argues that some of the excluded students may not be fully or adequately funded by government grants and should therefore be included in the bargaining unit.
Arguments on the order of proceedings
At issue in this interim award was the order in which evidence should be presented. The union requested that the employer present its case first, asserting that the employer holds the relevant knowledge regarding the nature of the positions, the funding structure of the disputed student jobs, and the programs under which they were employed. The union cited arbitral jurisprudence that supports requiring the party with greater knowledge of the matter to proceed first, particularly in exclusion disputes.
“The case law also supports that in exclusion cases such as this the employer should proceed first,” the union argued, emphasizing that the employer has direct access to the grant funding details and employment structures. It maintained that the affected students were not members of the union, their positions were not posted, and the union did not have firsthand knowledge of the details of their employment arrangements.
The employer opposed this approach, arguing that the union was attempting to disrupt a long-standing practice of student exclusions that has been in place since at least 2001. The employer asserted that the union had been aware of these exclusions for decades and had discussed them in previous rounds of collective bargaining. It contended that the normal order of proceedings should apply, meaning the union, as the grieving party, should present its evidence first.
The employer further argued that the union and its members had sufficient knowledge of the students’ roles and that the union had received comprehensive disclosure of documents related to the matter. “The union is simply seeking a tactical advantage by demanding that the employer proceed first with its case,” the employer submitted.
Arbitrator’s analysis and ruling
In reviewing the submissions, the arbitrator acknowledged that the general evidentiary rule in arbitration requires the party asserting the grievance to present its case first. However, arbitrators also have discretion to deviate from this standard when fairness, efficiency, and the nature of the dispute warrant it.
The ruling referenced prior arbitration awards, including Spar Aerospace Ltd. v. S.P.A.T.E.A. and Ontario Power Generation Inc. and Society of United Professionals, which found that in cases where an employer holds the bulk of the relevant knowledge regarding exclusions, it may be appropriate for the employer to present its case first.
While the employer emphasized the long-standing nature of the student exclusions, the arbitrator found that this alone was not a sufficient reason to deny the union’s request. The arbitrator noted that the union had raised concerns about the funding structure of some student positions during bargaining and that it lacked full insight into the employer’s funding sources and allocation methods.
“The employer is the party that knows those funding and programme details. It understands how the grant application process works, it knows how it allocates the funding and what proportion of student wages it covers, and it designs the programmes within which the students perform their tasks,” the arbitrator stated.
Based on this reasoning, the arbitrator determined that requiring the employer to present its case first would enhance procedural fairness and promote efficiency.
The ruling also acknowledged that some of the information at issue could be known to both parties, but that the employer had unique access to key financial and programmatic details. As a result, the arbitrator directed the employer to present its evidence first at the next hearing date, while reserving the employer’s right to request reply evidence if necessary.
Implications of the ruling
The decision establishes the framework for how the case will proceed but does not determine the substantive issues regarding the student worker exclusions.
The union will have the opportunity to respond to the employer’s evidence once it is presented, and the arbitrator has left open the possibility for the employer to present rebuttal evidence if warranted.
For more information, see Corporation of The Town Of Whitby v Canadian Union of Public Employees, Local 53, 2025 CanLII 13504 (ON LA).
