Weber Delay?
October 30, 2015
"One Law for All": Has Weber v. Ontario Hydro Transformed Collective
Agreement Administration and Arbitration in Canada?
Professors Kevin Banks, Richard Chaykowski and George Slotsve
Centre for Law in the Contemporary Workplace
Queen’s University
The Problem
Research demonstrates a steady increase between the 1970s
and early 2000s in the average time from initiating a grievance to
the rendering of an arbitration award in all Canadian
jurisdictions studied.
A Challenge to the System
Ontario’s recently retired Chief Justice, has argued that
“the present system of grievance arbitration can be
slow, expensive and detached from the realities of the
workplace”, “has lost its course, has lost its trajectory,
has lost its vision”, and “is at risk of becoming
dysfunctional and irrelevant”.
Weber and the changed legal
environment
• Increased complexity of legal issues facing arbitration due to
the expansion of arbitral jurisdiction:
– Weber jurisdiction: torts, pension and benefit plans,
Charter of Rights
– Human rights (anti-discrimination) and other statutory
matters
• Ambiguity in the scope of arbitral jurisdiction.
A Framework of Hypotheses
A. Exogenous constraints (Weber and a radically changed
environment):
1. proportion of cases raising numerous or complex legal or
factual issues
2. proportion of cases raising jurisdiction issues
B. Behaviour of Arbitrators
1. Procrastination
2. Lengthy and legalistic decision-making
3. (Defaulting to non-management of proceedings)
A Framework of Hypotheses
C. Institutional Characteristics of the Parties
1. public vs private
2. government vs health care vs education
D. Legitimate Preferences of the Parties
1. Risk-averse approach to ensuring high standards of
fairness, high quality of decision, and acceptability of
decision
2. Allowing time for healing
A Framework of Hypotheses
E. Incentive or coordination problems among the parties
1. Pursuit of tactical or political advantage
2. Lack of information on more efficient processes
3. Costs associated with moving to more efficient processes
a. up-front costs of negotiation and establishment
b. up-front costs of clearing backlogs
c. potential for wasted investment in early fact-finding
and disclosure
4. Lack of trust may heighten risks or perceived risk of net
loss
Methods
• Detailed legal subject matter coding of all grievance arbitration
awards in Ontario Labour Arbitration Awards, 2010
• Record time from grievance or event to first hearing, first
hearing to last hearing, last hearing to award, and number of
hearing days
• Process variables coded include details on arbitrator/board,
party representatives, whether expedited procedures or agreed
statements of fact were used, and length of award
• Coding government, health care, education and other employers
• Proxy for busiest arbitrators
• Consent awards and interim awards excluded
What this enables us to measure
• At what stage delay tends to arise, and
• What institutional, legal or procedural factors tend to
cause it.
What this enables us to infer directly
• The probable extent of any effects of changed legal
environment (A1 and A2)
• The probable extent of any effects of arbitrator
behavior (B1 and B2)
• The relative importance of party institutional
characteristics (C1 and C2)
• The relative importance of risk-averse procedural
choices (D1)
What this enables us to infer indirectly
The likely relative importance of the combined
effect of party priorities, resource constraints,
and incentive or coordination problems.
Industry Profile of Cases, BCS (2015) and Picher and Mole (1991)
100
90
80
70
60
% 50
40
30
20
10
0
Sector: Private
Sole
Tripartite
BCS Entire Sample
Sector:
Government,
Health & Education
M&P Entire Sample
Sole
Tripartite
BCS Approximate Distribution of Cases by Subject
18.00
16.00
14.00
12.00
10.00
8.00
6.00
4.00
2.00
0.00
BCS Time Lapse, Discipline and Non-Discipline
400
350
307.02
300
250
200
136.2
150
100
86.34
49.36
50
0
Hearing Time
Award Time
Average, Entire Sample
Total Time
Disciplinary Awards
Non-Disciplinary Awards
Event to First
Hearing Time
Time to Complete Hearings
90
80
70
60
50
% with hearing time of 30 days or less
% with hearing time of 60 days or less
40
% with hearing time of 90 days or less
% with hearing time of 120 days or less
30
20
10
0
Human Rights or
Other
Discrimination
Pension Plan
Benefit or
Welfare Plan
Interpretation of Discharge for
Collective
Discipline
Agreement
Post-hearing time to Render Award
90
80
70
60
50
% with hearing time of 30 days or less
% with hearing time of 60 days or less
40
% with hearing time of 90 days or less
30
20
10
0
Human Rights or
Other
Discrimination
Pension Plan
Benefit or
Welfare Plan
Interpretation of Discharge for
Collective
Discipline
Agreement
Start to First Hearing
_t
Coef.
Jurisother
.8942973
discd
gov
expedited
tripart
Robust Std.
Err.
Z
P>|z|
[95% Conf.
Interval]
T-stat
.3885852
2.30
0.021
.1326842
1.65591
-.6028431
.2625858
-2.30
0.022
-1.117502
-.0881843
.451927
.1372988
3.29
0.001
.1828263
.7210277
-.7939438
.1461618
-5.43
0.000
-1.080416
-.507472
.6172616
.2364494
2.61
0.009
.1538292
1.080694
First Hearing to Last Hearing
_t
Coef.
Robust Std.
Err.
Z
P>|z|
[95% Conf.
Interval]
T-stat
Charter
1.957558
1.08435
1.81
0.071
-.1677283
4.082845
cba
1.510866
.6769155
2.23
0.026
.1841363
2.837596
discd
1.237125
.6036845
2.05
0.040
.0539256
2.420325
other
1.892718
.7240709
2.61
0.009
.4735653
3.311871
gov
1.038742
.316652
3.28
0.001
.4181155
1.659369
urep
.7115691
.3274369
2.17
0.030
.0698047
1.353334
furep
-.4712984
.2642194
-1.78
0.074
-.989159
.0465621
afact
-1.088791
.2812563
-3.87
0.000
-1.640043
-.5375387
busy arb
-.0398964
.0234684
-1.70
0.089
-.0858937
.0061009
naward
.0753464
.0195785
3.85
0.000
.0369732
.1137197
Last Hearing to Award Date
_t
Coef.
Robust Std.
Err.
Z
P>|z|
[95% Conf.
Interval]
T-stat
gov
.2755533
.1610688
1.71
0.087
-.0401358
.5912424
expedited
-.580545
.1945554
-2.98
0.003
-.9618665
-.1992235
furep
-.4673641
.2172815
-2.15
0.031
-.893228
-.0415003
tripart
.8374219
.3059009
2.74
0.006
.2378671
1.436977
wcount
.0001892
.0000237
8.00
0.000
.0001428
.0002355
busy arb
-.0201723
.011216
-1.80
0.072
-.0421552
.0018106
naward
-.0169747
.0095035
-1.79
0.074
-.0356012
.0016518
Hearing Days
_t
Coef.
Robust Std.
Err.
Z
P>|z| [95% Conf.
Interval]
T-stat
jurisother
-.4575563
.1672811
-2.74
0.006
drug
.3853115
.1389127
2.77
0.006
.1130475
.6575754
Charter
.9450663
.3854717
2.45
0.014
.1895557
1.700577
cba
.2228244
.1072907
2.08
0.038
.0125385
.4331104
discd
.1920933
.1126538
1.71
0.088
-.0287041
.4128907
other
.3101763
.1117161
2.78
0.005
.0912168
.5291359
gov
.1996908
.0485235
4.12
0.000
.1045865
.2947952
educ
.1081304
.0420283
2.57
0.010
.0257565
.1905043
afact
-.1876773
.0371176
-5.06
0.000
tripart
.1677282
.0692343
2.42
0.015
.0320314
.303425
wcount
.0000573
.0000101
5.66
0.000
.0000374
.0000771
naward
.006192
.0017254
3.59
0.000
.0028102
0095737
-.7854212 -.1296913
-.2604264 -.1149281
“Weber Specification” Results
Weber =
Pension Plan + Benefit or Welfare Plan + Canadian Charter + Tort
Pension Plan
0 "No" 1 "Yes"
Benefit or Welfare Plan
(whether insured or not) 0 "No" 1 "Yes"
Canadian Charter
0 "No" 1 "Yes"
Tort
0 "No" 1 "Yes"
Coef.
Weber
-1746566
Robust Std. Err.
.4572543
Z
P>|z|
[95% Conf.
Interval]
-0.38
0.702 -1.070859
T-stat
.7215455
“Manual” Review of Jurisdictional
Issues - Results
• Weber issues accounted for 9 of of 49 jurisdictional issues
decided.
• Predominance of traditional issues (timeliness, scope of
agreement).
• In about half of Weber jurisdiction cases cases it took
markedly longer than average to get to a first hearing.
• No tendency away from average in hearing time or length
of time from hearing to award.
• Due to small population of Weber jurisdiction issues, it is
difficult to draw statistical inferences from these
observations.
Conclusions
1.
The changed legal environment and culture of legalism hypotheses find
little support in the data:
•
Most delay is prior to the hearing.
•
The number of legal subjects dealt with in an award has no
statistically significant effect at any stage.
•
The total number of cases raising issues within new jurisdiction is
relatively small in relation to the total number of legal issues decided.
•
Use of legal counsel by a party has no statistically significant effect
except at the hearing stage. There it is only the use of counsel by
unions that is significant.
Conclusions
• On the other hand, jurisdictional determinations are
associated with delay prior to the first date of hearing. The
reasons for this require further investigation.
• Determining Weber jurisdiction probably makes some
contribution to the likelihood of this delay, but the number
of Weber jurisdiction cases is small.
Conclusions
2. There is no evidence in our data suggesting that arbitral
behavior is a significant contributor to systemic delay.
•
•
Award time is a relatively small fraction of total delay.
The length of awards has little effect on award time.
3. Government parties are more prone to delay at every stage
of the process, suggesting that institutional decision-making
processes and resource allocations probably matter.
Conclusions
4.
Party caution or risk aversion in choices of representation,
arbitrator or procedure appears to play relatively little role in
delay at a systemic level:
• While tripartism causes delay, it is in sharp decline.
• Decisions to use the busiest arbitrators have little or no
statistically significant effect on delay at any stage of the
process.
• The raising of procedural issues appears to have no statistically
significant effect on delay at any stage of the process.
• As noted above, use of legal counsel by a party has no
statistically significant effect except at the hearing stage.
There it is only use of counsel by unions that is significant.
Conclusions
5.
The principal causes of delay are therefore likely to lie in the
priorities of the parties, or in incentive or coordination problems
between them.
This is consistent with the concentration of delay in the pre-hearing
stage.
The data do not permit us to sort out whether or to what extent such
delays result from party decisions to use time to heal, to use delay
tactically, to bring or defend cases for political reasons, or simply from
a lack of information, lack of trust, or from dealing with an
accumulated backlog resulting from resource constraints.
Policy Implications
Addressing the bulk of increasing delay probably does not
require:
•
•
•
•
Changes to arbitral jurisdiction
Regulation of arbitral decision-making time lines.
A larger supply of arbitrators.
Moving away from legal representation.
Policy Implications
Further research is required to determine what prevents
parties from moving more quickly. Depending on the results
of such research, policy makers might consider:
• Providing information on the mechanics of and business
case for expedited procedures.
• Facilitating negotiation of expedited procedures.
• Enabling a party to elect from a wider range of mandatory
expedited procedures.
• Requiring arbitrators to case-manage in the absence of
agreement to the contrary.