In Jack Cewe Construction Ltd. v. Teamsters, Local Union 213 (Dismissal Application Grievance), [2024] BCCAAA No 173 (Saunders) (“Jack Cewe”) a grievance was dismissed on the basis that the Union and Grievor’s non-compliance with a pre-hearing document production order was an abuse of process and denied the Respondent Employers a fair hearing.
Background
The Union filed a grievance alleging that the Respondent Employers, Jack Cewe Construction Ltd. and Heidelberg Materials Canada Limited (Pipeline Aggregate Pit), acted contrary to an agreement under the collective agreement by bypassing dependent contractors for a gravel haul job in favour of sub-contractors.
As a preliminary issue, the Respondent Employers were unsatisfied with the Union’s document disclosure and made a formal application to the Arbitrator for the production of documents. On October 18, 2024, the Arbitrator ordered the Union and individual Grievors to produce specific documents and particulars within one month. The Union obtained an extension by consent and then an additional extension at a case management conference leading to a new deadline.
Arbitrator’s Decision
The Union produced additional documents, but their disclosure remained “substantially deficient”. Notably, there were no documents that responded to the parties’ differences concerning the merits of the interpretative issue in dispute. No adequate explanation was provided for the failure to provide the documents. The circumstances were found to give rise to natural justice concerns as the Respondent Employers were entitled to be in a fair position to prepare a full answer and defence to the Union’s allegations.
The Arbitrator ultimately found there was a deliberate disregard for the October 18, 2024 order to the point that there had been an abuse of process giving rise to the denial of a fair hearing. The entire grievance was dismissed as a result.
Key Takeaways
This case provides a perspective on an emerging trend of labour arbitrators requiring more formal adherence to pre-hearing matters. Under 88.1 of the Labour Relations Code, arbitrators are required to hold case management conferences and address particularized matters within 30 days of their appointment. The disclosure of documents is an important pre-hearing step in the arbitration process, and this decision highlights the consequences of failing to comply with a document disclosure order in grievance arbitration proceedings.
Matters before labour arbitrators are getting increasingly complex as the myriad of issues that may be put before arbitrators grows. Jack Cewe highlights the importance of formality in pre-hearing procedures and begs the question, should arbitrations be administered with more formal court-like procedures to ensure the fair and timely hearing of a matter? Jack Cewe certainly provides that an argument can be made for an increased “court-like” observance of pre-hearing matters to ensure natural justice prevails.
If you have any questions about this article, please contact Don Jordan or your Harris lawyer.
