Hearings still “ZOOM-ing” along
April 27, 2020
Recent decisions from Ontario labour tribunals show that hearings can, in some cases, proceed during the COVID-19 pandemic.
The pandemic has prevented public gatherings from taking place, preventing parties to disputes from appearing in person before a decision maker in order to have their matters resolved. However, a few recent decisions indicate that arbitrators and the Labour Relations Board (the “OLRB”) are willing and able to proceed with hearings using video-conferencing platforms such as Skype and Zoom where it is appropriate to do so. These tribunals have even gone so far as to order that hearings proceed using these platforms over the objection of a party. Whether a labour arbitrator or the Board will decide that it is appropriate to proceed by video depends on the specific circumstances of each case.
One of the earlier examples of a case where the method of proceeding during the pandemic was in dispute is an OLRB decision by Vice Chair Patrick Kelly in Mitchell Hutchinson v Point Farms Provincial Park, 2020 CanLII 25912 (ON LRB). In that case, Vice Chair Kelly directed the parties to proceed with a hearing by Skype over the objection of the employer. The Vice Chair noted the OLRB’s accumulated experience in holding video hearings and pointed out that the objecting employer had provided no evidence in support of its claim that it would be prejudiced if required to proceed by videoconference. This case demonstrates that adjudicators are not necessarily willing to accept the suggestion that having to proceed by videoconference is, in and of itself, sufficiently prejudicial to defer the hearing until an in-person hearing can be facilitated.
However, Vice Chair Kelly’s decision in Point Farms stands in contrast with another decision of the OLRB in Berkim Construction Inc., 2020 CanLII 27468 (ON LRB). That case concerned an application for certification where the status of three employees was in dispute. Prior to the first day of hearing in February 2020, the responding parties filed 24 large volumes of materials. The applicant union spent the first day of hearing presenting its analysis of the materials filed and its arguments on the legal issues, expecting that the responding parties would present their response during the next hearing date scheduled in April. After the OLRB cancelled all in-person hearings on March 19, the applicant union proposed that the responding parties present their response by way of teleconference.
Vice Chair Green ultimately declined to proceed via Skype, concluding that in that particular case the relative disadvantages outweighed the advantages of proceeding, especially in light of the voluminous of amount of material that had been filed that would make proceeding “wholly impractical and complicated”. Vice Chair Green also noted that the applicant union already had an opportunity to present their submissions in person, which involved referring to the volumes of material and addressing complex legal issues. The Vice Chair ultimately concluded that requiring the responding party to do the same over Skype would be unfair, and therefore declined to order that the hearing proceed in order to preserve the fairness of the proceedings. Vice Chair Green did warn, however, that there was still a possibility that the OLRB could revisit the situation if the circumstances related to the province-wide lockdown did not improve.
The Grievance Settlement Board (“GSB”) also had cause to consider the issue per Arbitrator McLean in AMAPCEO v Ontario (MAG) GSB# 2018-1346 (unreported). The grievance in that case arose out of an alleged incident between two employees in the workplace, one represented by AMAPCEO and the other by OPSEU. OPSEU was granted limited status to intervene in the matter. Owing to the COVID-19 pandemic, none of the parties wanted to proceed in person for the upcoming hearing dates scheduled in mid-April. AMAPCEO and the Employer agreed to proceed instead by way of Zoom. OPSEU, however, objected.
In deciding to Order the hearing to proceed by way of videoconference, Arbitrator McLean employed a “balancing of interests” approach, weighing the relative salutary effects of proceeding against any perceived or actual deleterious effects. Although Arbitrator McLean accepted that proceeding in person was a superior method, that was not sufficient to dissuade him from ordering the parties to proceed via Zoom. He further rejected the notion that any natural justice issues were present, describing a Zoom hearing as a “perfectly adequate” method for having a grievance heard, even where, as in this case, viva voce evidence was to be presented.
While noting that there may be some cases where this method of proceeding would be inappropriate, Arbitrator McLean ultimately decided that the case before him was one where it would be appropriate to proceed with the hearing. In arriving at his decision, the Arbitrator considered that there was an interest in having the grievances determined quickly. He also considered the unique circumstances of this case, where AMAPCEO and the Employer had already agreed to proceed via Zoom for the purpose of AMAPCEO leading evidence of an expert witness that, at best, was only of minor interest to OPSEU. The witness was also expected to testify for a “relatively” short amount of time. Under the unique circumstances of this case, Arbitrator McLean concluded that it would be appropriate to proceed with AMAPCEO’s next witness by way of a Zoom videoconference and he so ordered. He further concluded that if any party had any technological difficulty preventing them from participating that the hearing would be adjourned.
Shortly after Arbitrator McLean’s award was released, Arbitrator Luborsky issued an award in Southampton Nursing Home v Service Employees International Union, Local 1 Canada, 2020 CanLII 26933 (ON LA) regarding a similar objection to proceeding by way of videoconference raised by the employer nursing home. The Employer made several arguments in support of its objection, one of which related to a perceived issue with respect to the ability to evaluate the credibility of a witness through videoconferencing technology, and the related effect on the fairness of the hearing. Arbitrator Luborsky found, however, that the Employer’s credibility-related concerns were insufficient to prevent the continuation of the hearing by way of videoconference, noting that differences in the witnesses’ respective stories could be reconciled by considering all of the evidence in context, including all of the documents filed in the course of the proceedings. Arbitrator Luborsky also rejected the notion that any perceived limitation on the assessment of “demeanour” was not sufficiently material in the circumstances of this case to preclude the continuation of the hearing on this basis.
However, notwithstanding his finding about credibility, Arbitrator Luborsky ultimately concluded that the balance of interests favoured the granting of the Employer’s request for an adjournment. In doing so, he considered the specific circumstances of the Employer’s limited resources in responding to urgent COVID-19 related issues, the delay throughout the proceedings that had already been incurred, and the limited relief that could be available to the Union if the grievance were allowed.
These cases demonstrate that the ability to proceed with a videoconference proceeding during the COVID-19 pandemic will depend on the specific circumstances of each case, and in particular the relative prejudice that may accrue to any of the parties if a Zoom or Skype hearing is ordered. We invite anyone with questions or concerns about proceeding with any particular matter in this format to contact a Koskie Minsky lawyer for assistance.