Ontario Association of Police Services
Boards, 2014 Labour Seminar
ARBITRATION TRAINING
Seann D. McAleese
ROLE OF THE ADVOCATE
•
The purpose of the exercise is to reduce the
complex and confusing to simplicity, logic and
order – most of all, believability!
OAPSB Labour Seminar - 2014
THREE MAIN ABILITIES OF
SUCCESSFUL ADVOCACY
•
Ability to prepare
•
Ability to organize
•
Ability to convey
OAPSB Labour Seminar - 2014
THE SUCCESSFUL ADVOCATE THINKS
•
Good judgement requires thought
•
Thinking the matter through is the only way to
reduce complexity to elegant, believable,
simplicity
OAPSB Labour Seminar - 2014
SWEATING THE DETAIL
•
Why your side should win
•
The facts you need to establish to win
•
What evidence is needed
•
How to prove the things you need to prove
•
What legal issues must be resolved to do so
•
What evidence the other side will likely lead and
what to do about it
OAPSB Labour Seminar - 2014
Key Parts in an Arbitration
1.
Investigation
2.
Preparation
3.
Litigation
OAPSB Labour Seminar - 2014
INVESTIGATION
•
What is the case all about?
•
Getting the documents
•
Interviewing witnesses
•
Visiting the scene
•
Timing of investigation
OAPSB Labour Seminar - 2014
INTERVIEWING WITNESSES
•
•
First Steps
Preparation
•
•
•
•
Who’s at the meeting?
•
•
•
•
Make a binder
Make a player’s list
Start your chronology
No “friends” of the witness
Association Rep for bargaining unit witnesses?
Supervisor
Location of meeting
OAPSB Labour Seminar - 2014
INTERVIEWING WITNESSES
•
Take good notes
•
Handwritten v. typed
•
Organize the notes
•
by witness
•
then for opening/closing
OAPSB Labour Seminar - 2014
INTERVIEWING WITNESSES
•
Establish rapport – don’t cut to the chase
•
Let them tell the story
•
Be supportive
OAPSB Labour Seminar - 2014
INTERVIEWING WITNESSES
•
Don’t let the witness think that the case rests on
his/her shoulders
•
Broaden your fact base
•
Ask open ended questions
•
Go back and get details
OAPSB Labour Seminar - 2014
INTERVIEWING WITNESSES
•
Listen more than you talk
•
Pay attention – don’t take calls, read e-mails
•
Evaluate – do I need and/or want to call this
witness?
OAPSB Labour Seminar - 2014
INTERVIEWING WITNESSES
•
Be aware of the witness demeanour during the
interview
•
Watch the witness with benevolent scepticism
•
Question – is he/she credible?
OAPSB Labour Seminar - 2014
INTERVIEWING WITNESSES
•
Different Kinds of Witnesses
•
set-up
•
background
•
factual
•
decision maker
OAPSB Labour Seminar - 2014
INTERVIEWING WITNESSES
•
Gather the names of other possible witnesses
•
Role play
•
Advise of further meetings potential
OAPSB Labour Seminar - 2014
INTERVIEWING WITNESSES
•
Describe the hearing to the witness
•
Describe the room
•
Describe the arbitrator
•
Explain body language
•
open v. closed positioning
OAPSB Labour Seminar - 2014
INTERVIEWING WITNESSES
•
Use the client’s experience
•
Draw detail from that experience
•
Maintain the client’s confidence
OAPSB Labour Seminar - 2014
DOCUMENTS
•
From the Board
•
From the Association / Grievor
•
From a Third Party
•
customer/citizen
•
City
•
WSIB
•
Medical records
OAPSB Labour Seminar - 2014
DOCUMENTS
•
Do you disclose ahead of time?
•
Do you request disclosure of their documents?
•
How do you respond to their request for
disclosure?
OAPSB Labour Seminar - 2014
DOCUMENTS
•
Originals not necessary, have available
•
E-discovery relevant
•
Subpoena – s. 48(12) OLRA, silent under PSA
•
•
statutory power and procedural fairness
How far is too far? Fishing expedition?
OAPSB Labour Seminar - 2014
SCENE PRESERVATION
•
If a picture is worth a thousand words, a site visit
is worth ten thousand
•
Pictures
•
Perspective
•
Floor plan
OAPSB Labour Seminar - 2014
SCENE PRESERVATION
•
Distances
•
Obstructions
•
Lighting
•
Weather conditions
OAPSB Labour Seminar - 2014
SETTING UP THE ARBITRATION
•
s.123(1) PSA first Conciliation
•
s.124(2) PSA then appointment for arbitration
•
Commence within 30 days unless agreed
•
sole arbitrator or panel?
•
Mediation/Arbitration
•
Arbitration only
•
Solicitor General pays if making appointment
OAPSB Labour Seminar - 2014
TYPE OF ARBITRATOR
•
Selection of Decision Maker
•
Style and Experience of Decision Maker
•
Availability of other dates for continuation
•
Knowledge of parties
•
Knowledge of the grievor
•
Past history on the topic
OAPSB Labour Seminar - 2014
PRELIMINARY ISSUES
•
Referral to Arbitration
•
Timeliness
•
s. 49 / s. 50 OLRA
•
Collective Agreement provisions
•
Mandatory v. Permissive provision
•
but s.124(2) PSA, not timeliness issues
•
but laches / delay may prejudice
OAPSB Labour Seminar - 2014
PRELIMINARY ISSUES
•
Adjournments
•
Consensual
•
Who pays?
•
Contested
•
Reasons for request
OAPSB Labour Seminar - 2014
OPENING STATEMENT/CLOSING ARGUMENT
•
Persuasion is the purpose
•
Preparation of both opening and closing is
imperative
OAPSB Labour Seminar - 2014
OPENING STATEMENT/CLOSING ARGUMENT
•
Opening: sets stage
•
Closing: ties it all together
•
Both have same objective, there are some
differences
OAPSB Labour Seminar - 2014
OPENING STATEMENT
•
Purpose is to draw roadmap for arbitrator –
dovetail with closing
•
No pleadings in arbitration
•
First impression of case
•
Does your arbitrator decide case in first five
minutes?
OAPSB Labour Seminar - 2014
OPENING STATEMENT
•
One competing consideration is that you also
educate the other side
•
3 main types of opening:
•
“Full” opening
•
“Minimal” opening
•
Middle ground
OAPSB Labour Seminar - 2014
OPENING STATEMENT
“Full” Opening
•
Full description of case
•
Detailed outline of evidence
•
Conclusions to be drawn on facts
•
Issues to consider
OAPSB Labour Seminar - 2014
OPENING STATEMENT
“Full” Opening
• Submissions on issues
•
•
•
•
(maybe some law)
Conclusion
Purpose can be to show the Association what is
coming at them – allows them to have ammunition
to use against grievor
Gives arbitrator full facts to lean on Association
OAPSB Labour Seminar - 2014
OPENING STATEMENT
“Minimal” Opening
•
Statement of what issues are and position of
employer but little else
•
Often used by the union
•
Use when you are not sure of the facts or strenght
of your position
OAPSB Labour Seminar - 2014
OPENING STATEMENT
Middle Ground
•
Identification of Issues, outline of facts and
conclusion you will ask arbitrator to draw
•
Normally use Middle Ground; others used much
less often
•
Remember, the party asserting the breach
generally proceeds first
OAPSB Labour Seminar - 2014
OPENING STATEMENT
TIPS:
•
Don’t overstate case
•
Only outline what you’re confident you can prove
•
Case will suffer otherwise if you don’t prove
something you said you would
•
Your credibility will suffer
OAPSB Labour Seminar - 2014
OPENING STATEMENT
TIPS:
•
If problem in case – deal with it [other side will]
•
Deal with other side’s arguments – as briefly as
you can
•
Don’t be too long
OAPSB Labour Seminar - 2014
OPENING STATEMENT
TIPS:
•
Reply to Association opening:
•
be brief
•
can knock down other side’s case
•
don’t repeat your own case
OAPSB Labour Seminar - 2014
EVIDENCE OUTLINE
BACKGROUND
•
Name
•
Current Position
•
Employment History (both with Board and before)
•
Education (if relevant)
•
Purpose of Involvement in the Case
OAPSB Labour Seminar - 2014
EVIDENCE OUTLINE
•
The nature of the Department’s operations
•
Location
•
People
•
Total # of unionized employees
•
full-time
•
part-time
•
non-union
OAPSB Labour Seminar - 2014
EVIDENCE OUTLINE
•
Witness’ classification
•
How many other person’s hold same rank
•
Witness’ duties and responsibilities
•
Make witness look credible
•
Lead witness through this evidence
OAPSB Labour Seminar - 2014
EVIDENCE OUTLINE
EVENTS
•
Date of Event
•
Location
•
Beginning Time (Approx.)
•
Ending Time (Approx.), if needed
OAPSB Labour Seminar - 2014
EVIDENCE OUTLINE
EVENTS
•
Persons Involved in the Event
•
Relevant Conditions (weather, lighting, etc.)
•
If recorded, how event was recorded (video, voice
tape, contemporaneous notes, other notes, other)
OAPSB Labour Seminar - 2014
EVIDENCE OUTLINE
EVENTS
•
Significant things happening before the event
•
Significant things happening after the event
•
Sequence of events
OAPSB Labour Seminar - 2014
EVIDENCE OUTLINE
TERMINATED EMPLOYEE
• Start date
• Current Position
• Employment History (both with current employer and
before)
• Education (if relevant)
• The seriousness of the offence in terms of Board policy
and employment related obligations
• The record of the grievor
• The long service of the grievor
OAPSB Labour Seminar - 2014
EVIDENCE OUTLINE
TERMINATED EMPLOYEE
•
Whether or not the offences was an isolated
incident in the employment history of the grievor
•
Whether there was provocation (details)
•
The nature of the offence (its seriousness)
OAPSB Labour Seminar - 2014
EVIDENCE OUTLINE
TERMINATED EMPLOYEE
• Evidence that Board rules of conduct, whether
unwritten or posted, have not been uniformly
enforced, thus constituting a form of
discrimination
• Was the event spur-of-the-moment misconduct?
(details)
• Was the conduct systematic and repetitive?
(details)
OAPSB Labour Seminar - 2014
EVIDENCE OUTLINE
TERMINATED EMPLOYEE
•
Was the conduct premeditated, planned and
deliberate?
•
Did the misconduct involve a breach of trust?
•
Did the grievor fail to apologize and settle the
matter after being given an opportunity to do so?
OAPSB Labour Seminar - 2014
EVIDENCE OUTLINE
TERMINATED EMPLOYEE
• Did the Board fail to permit the grievor to explain or
deny the alleged offence?
• Was there bona fide confusion or mistake by the
grievor as to whether he/she was entitled to do the
act complained of?
• Did the grievor have an inability due to impairment or
emotional problems, to appreciate the wrongfulness
of his/her act? (detail)
OAPSB Labour Seminar - 2014
EVIDENCE OUTLINE
TERMINATED EMPLOYEE
•
Was the harm done relatively trivial?
•
What are the grievor’s future prospects for likely
good behaviour
•
Is there extraordinary economic hardship arising
from the termination? (detail)
OAPSB Labour Seminar - 2014
PRACTICAL TIPS FOR EXAMINING WITNESSES
EXAMINATION-IN-CHIEF
•
Use first name of witness
•
Use a conversation tone
•
Take your time (watch the arbitrator’s pen!)
OAPSB Labour Seminar - 2014
PRACTICAL TIPS FOR EXAMINING WITNESSES
EXAMINATION-IN-CHIEF
•
Ask focussed yet open ended questions. DO NOT
LEAD
•
Set the stage first for the arbitrator
•
Then deal with the specifics of the case
OAPSB Labour Seminar - 2014
PRACTICAL TIPS FOR EXAMINING WITNESSES
EXAMINATION-IN-CHIEF
•
Deal with evidence chronologically
•
Refresh memory if necessary with identified
documents
•
Have a calendar handy
OAPSB Labour Seminar - 2014
PRACTICAL TIPS FOR EXAMINING WITNESSES
EXAMINATION-IN-CHIEF
•
Consider aids to testimony (pictures, diagrams,
chronology of events)
•
Deal with anticipated unflattering evidence at the
outset. Avoid the appearance of trying to hide
evidence.
•
If credibility case, be upfront with admissions
against interest
OAPSB Labour Seminar - 2014
PRACTICAL TIPS FOR EXAMINING WITNESSES
EXAMINATION-IN-CHIEF
• Confront with prior inconsistent statements.
Remind witness of earlier statement. Ask witness
to assist in terms of which statement should be
accepted.
• Get witness to agree that her recollection is not as
clear as had originally led us to believe
• Confront with contrary evidence of another
witness (Browne & Dunn rule)
OAPSB Labour Seminar - 2014
YOUR WITNESS SHOULD BE PRESENTABLE
•
The witness should be dressed in business
casual for the hearing
•
The witness should be on his or her best
manners, respectful demeanour
OAPSB Labour Seminar - 2014
SHOULD YOUR WITNESS TALK TO THE OTHER
SIDE?
•
There is no property in a witness – so it is proper
for counsel for the other side to seek to talk to
your witness
•
A summons only compels attendance at the
hearing
•
The witnesses are not obligated to speak to
anyone before they testify
OAPSB Labour Seminar - 2014
DEALING WITH THE NERVOUS WITNESS
•
You may be more nervous than the witness but it
does not help to tell them that
•
Try the “sheep theory” if it is true, namely, tell the
witness that he/she is just one of many who will
be coming to testify in this matter
•
Put bargaining unit witnesses under subpoena
OAPSB Labour Seminar - 2014
OBJECTIONS - WHY OBJECT
•
Opposing counsel is asking an objectionable
question
•
The witness is giving an objectionable answer
•
You want to disrupt the rhythm of the other side
•
You want to annoy the other side
OAPSB Labour Seminar - 2014
OBJECTIONS - HOW TO OBJECT
•
“I object”
•
State the reason
•
Get the witness to stop talking
OAPSB Labour Seminar - 2014
USE OBJECTIONS SPARINGLY
•
Not unless you have a good objection
•
Not unless the answer will hurt you
•
Rarely in opening or final arguments
OAPSB Labour Seminar - 2014
OBJECTIONS EXCUSE THE WITNESS
•
When you make an objection, and what you say
may help the witness, ask the chair to excuse
your witness from the room
•
Do this to preserve the integrity of the evidence
•
You do not want the witness to learn from the
debate
OAPSB Labour Seminar - 2014
SHOW GOOD GRACE WHEN YOU LOSE AN
OBJECTION
•
Do not show temper or grief
•
Do not take it personally
•
Do not re-argue the point
•
Thank the arbitrator and move on
OAPSB Labour Seminar - 2014
COMMON OBJECTIONS TO QUESTIONS ASKED
IN CHIEF
•
•
•
The question relates to an irrelevant issue.
The question is leading, in that it hints at or
suggests the answer, or assumes a fact that has
not been proved. The question lacks a proper
foundation because it presumes a background of
fact which has not been established.
The question invites a hearsay answer, or the
answer contains hearsay, rather than a statement
of facts based on personal knowledge.
OAPSB Labour Seminar - 2014
COMMON OBJECTIONS TO QUESTIONS ASKED
IN CHIEF
•
The question calls for, or the answer contains, an
opinion, although the witness has not been
qualified as an expert.
•
The question calls for speculation or a
hypothetical answer, rather than facts.
•
The questions invites a legal opinion regarding
interpretation of the collective agreement, and this
is a matter for the arbitrator to decide.
OAPSB Labour Seminar - 2014
COMMON OBJECTIONS TO QUESTIONS ASKED
IN CHIEF
•
The question relates to a “privileged matter”, such
as discussions during the grievance procedure.
•
The question contains a misstatement of
evidence that has previously been given.
•
The question involved several questions which
cannot be answered at the same time, i.e. it is a
compound question.
OAPSB Labour Seminar - 2014
PURPOSE OF CROSS- EXAMINATION
•
To elicit favourable testimony
•
To attach credibility
•
To attack the reliability of the evidence
OAPSB Labour Seminar - 2014
CROSS-EXAMINATION IS TOUGH
•
The witness is hostile
•
The story may be changing or unknown
•
You are on stage: cross-examination is supposed
to be dramatic
•
You may not have a clue what to ask
OAPSB Labour Seminar - 2014
HOW TO PREPARE FOR CROSS-EXAMINATION
•
Maintain a running list of questions
•
Decide what you would like to get out of the
witness
•
Get in quick and get out
•
Be content with a “single” rather than trying to a
“home run”
•
you might strike out
OAPSB Labour Seminar - 2014
CROSS-EXAMINATION – ASKING QUESTIONS
•
Simple
•
Clear
•
Closed
OAPSB Labour Seminar - 2014
EXAMPLES OF CROSS-EXAMINATION
The Dream
•
The witness gives you the dream answer that
makes your case
•
Do not celebrate
•
Stop asking questions
OAPSB Labour Seminar - 2014
EXAMPLES OF CROSS-EXAMINATION
The Reality
•
The witness fights you with each answer
•
Try to show how unreasonable the witness is
•
Show the conspiracy theory or concocted
evidence
OAPSB Labour Seminar - 2014
PRACTICAL TIPS FOR CROSS-EXAMINING
WITNESSES
EXAMINATION-IN-CHIEF
• Do not attack credibility if not a credibility case.
Always be mindful of ongoing labour relations
reality.
• Nail down timing or chronology of events. Even if
witness cannot give dates, establish when the
events occurred relative to one another.
• Insist on “yes” or “no” answers to specific
questions
OAPSB Labour Seminar - 2014
PRACTICAL TIPS FOR CROSS-EXAMINING
WITNESSES
EXAMINATION-IN-CHIEF
• Probe when a witness “can’t recall”
•
•
•
•
•
get witness to agree that certain events were significant or unusual
query why witness can’t recall what would/should have been a
significant event
avoid the “is it possible?” question when the witness says “I can’t
recall”
Probe conversations in terms of what prompted, who initiated,
who participated
Know when to stop. Don’t give the witness multiple opportunities
to confirm evidence harmful to your case. Cut your loses and
move on.
OAPSB Labour Seminar - 2014
EXAMPLES OF CROSS-EXAMINATION
Do Not Cross-Examine Unnecessarily
•
Avoid the witness who has not hurt your case
•
Consider doing a “fake” cross examination
•
•
“Mr. Jones, have you discussed your evidence with
any person prior to giving testimony today?”
Sometimes you may feel the need to do a tough
sounding cross-examination that does not go near
substantive issues
OAPSB Labour Seminar - 2014
EXAMPLES OF CROSS-EXAMINATION
Do Not Simply Repeat the Direct Examination
Q = “Is it your testimony that the grievor hit Mr. Jones?”
A = “That’s correct”
Q = “With his fist hard in the face, is that what you
say?”
A = “Right!”
•
Your repetition simply emphasizes evidence which is
harmful to you
OAPSB Labour Seminar - 2014
CONTROL THE WITNESS
•
The key to an effective cross-examination is
control of the witness
•
The witness who is allowed to pursue his or her
own agenda will ruin your cross-examination
OAPSB Labour Seminar - 2014
CONTROL THE EVASIVE WITNESS
Q = “Mr. Jones, you have never asked the grievor for
his explanation, correct?”
A = “I remember being very busy in May, blah blah…”
Q = “Mr. Jones, let me repeat my question. You have
never asked the grievor for his explanation, correct?”
A = “Correct”
•
Ask your question until it is answered. If necessary,
ask the chair to direct the witness to answer.
OAPSB Labour Seminar - 2014
CONTROL THE WITNESS WHO WANTS TO
QUESTION
Q = “Mr. Jones, you have never asked the grievor for
his explanation, correct?”
A = “Why should I?”
Q = “Mr. Jones, I am the one who is asking the
questions here. I will repeat my question: you have
never asked the grievor for his explanation, correct?”
•
Ask your question until it is answered. If necessary,
ask the chair to direct the witness to answer.
OAPSB Labour Seminar - 2014
CONTROL THE SIDE-TRACKING WITNESS
Q = “Were you in the gym on January 4th?”
A = “Now that you mention the gym, I had a
conversation about the promotion with the grievor in
the gym back in July.”
Q = “Mr. Jones, we may talk about that conversation or
we may not. But my question to you is very simple:
were you in the gym on January 4th?”
• The interesting answer can side-track you. Write it
down for later and get your first question answered.
OAPSB Labour Seminar - 2014
CONTROL THE RUN-ON WITNESS
Q = “Were you in the gym?”
A = “Yes, but that was before I got the phone call to go
to the ball game, whereupon blah, blah, blah…”
Q = “Mr. Jones, I did not ask you about what you did
after you were in the gym. Please answer my
question only or we will be here all day, do you
understand?”
• Witnesses are allowed to explain but not to simply
use the question as a spring-board to give a diatribe.
OAPSB Labour Seminar - 2014
DO NOT USE “I PUT IT TO YOU”
UNNECESSARILY
•
Use it only when you want the arbitrator to know
that you are presenting a question out of a duty
knowing the witness will deny it.
Q = “Mr. Jones, I put it to you that you set up the
grievor for failure by assigning him to that work
unit, isn’t that so?”
A = “Not so.”
OAPSB Labour Seminar - 2014
HANDLING ZINGERS
Q = “Mr. Smith, you had no right to deduct that
amount from his pay, did you?”
A = “We’ve always done it that way – a million
times.”
Q = “Mr. Smith, I want you to take as much time as
you need, and tell me every such occasion, with
dates, times and the individuals involved.”
• If you get zinged, you may have to take a risk and
call the witness’ bluff.
OAPSB Labour Seminar - 2014
COMMON OBJECTIONS TO QUESTIONS ASKED
ON CROSS-EXAMINATION
•
The question is irrelevant to the issues, and is not
designed to test the witness’ credibility.
•
The question relates to privileged matters, such
as discussions during the grievance procedure.
•
The question calls for an opinion, although the
witness is not qualified as an expert.
OAPSB Labour Seminar - 2014
COMMON OBJECTIONS TO QUESTIONS ASKED
ON CROSS-EXAMINATION
•
The question calls for speculation or a
hypothetical answer, rather than facts.
•
The question lacks a foundation in that it suggests
facts which have not yet been proved in evidence.
•
The question suggests misconduct, although the
advocate asking the question has no evidence to
support it.
OAPSB Labour Seminar - 2014
COMMON OBJECTIONS TO QUESTIONS ASKED
ON CROSS-EXAMINATION
•
•
•
The question includes a misstatement of previous
testimony.
The questioning is unduly harsh and oppressive,
and is designed to bully or badger, demean or
ridicule.
The question is confusing, or it includes several
questions which cannot be answered at the same
time, i.e. it is a compound or double-barrelled
question.
OAPSB Labour Seminar - 2014
PURPOSE OF FINAL ARGUMENT
•
Take advantage of the final opportunity to present
your case.
•
The last best opportunity to persuade the
arbitrator.
OAPSB Labour Seminar - 2014
STEP 1 – EXPLAIN THE NATURE OF THE CASE
•
Simple and clear
e.g. This case concerns the termination of employee
X for cause. The issue is whether the theft of the
office supplies constitutes theft of Board property.
OAPSB Labour Seminar - 2014
STEP 2 – SUMMARIZE THE MAIN POINTS
•
What is your argument today?
e.g.. Our argument has three main points:
1.
The Board has a policy prohibiting employees
from taking office supplies;
2.
The Grievor signed an acknowledgement that he
understood this policy; and
3.
The Grievor breached this policy when he took
home two packages of pens and paper.
OAPSB Labour Seminar - 2014
STEP 3 – SUMMARIZE THE FACTS
•
What happened?
e.g. On July 15, 2014 the Grievor went into the
storeroom and took two packages of pens and
paper. He put these in his briefcase and took
them.
OAPSB Labour Seminar - 2014
STEP 4 – ARGUE THE LAW
•
Develop argument on each issue by summarizing
legal principles, citing cases and referring to
relevant facts.
OAPSB Labour Seminar - 2014
RESEARCHING THE LAW
•
Preliminary issues
•
Evidentiary issues
•
Final Argument
OAPSB Labour Seminar - 2014
BEST SOURCES FOR ARBITRATION LAW
•
Ontario Police Arbitration Commission
•
Brown & Beatty, Canadian Labour Arbitration
•
Palmer, Collective Agreement Arbitration Canada
•
Labour Arbitration Canada – Mitchnick &
Etherington
•
Labour Arbitration Cases
•
Canadian Labour Arbitration Summaries
OAPSB Labour Seminar - 2014
STEP 5 – WHAT RELIEF DO YOU SEEK
•
Tell them what you want
•
Discuss grievance
•
Uphold discipline or Board interpretation of
collective agreement
•
Remain seized if you award a remedy
•
Remain seized for implementation and
interpretation of decision
OAPSB Labour Seminar - 2014
REFERRING TO AUTHORITIES
•
More is not necessarily better
•
Don’t read the entire citation - “The decision of
arbitrator Burkett in CUPE v. City of Toronto” will
do
•
Do not race through the case; let the arbitrator
keep up with you
•
Hi-lite the case
OAPSB Labour Seminar - 2014
LEGAL SUBMISSIONS
•
Don’t use legalise or Latin that you are not
familiar with
•
Don’t misstate evidence
•
Be accurate about the law
•
Point out parts of the cases that are easily
distinguishable
•
Don’t patronize the arbitrator if using one of the
their cases
OAPSB Labour Seminar - 2014
ARBITRATION HEARING TIPS
Hearing Room Set Up
•
Sit on the arbitrator’s right side (or closest to the
electrical outlet if needed)
•
Make sure advisor sitting next to advocate
•
Where will the witnesses sit when giving
evidence?
•
At the end of the arbitrator’s table or at a separate
witness table
OAPSB Labour Seminar - 2014
ARBITRATION HEARING TIPS
Hearing Room Set Up
•
Set out your documents before the arbitrator gets
there
•
Do you have enough copies for all parties, the
arbitrator and a witness copy
•
Have the exhibits easily available
•
Have copies of documents for witness (do not use
the arbitrator’s)
OAPSB Labour Seminar - 2014
ARBITRATION HEARING TIPS
•
Talk to the union lawyer to ensure that you understand what
their position will be on the issues in consideration (or, in an
appropriate case, provide them with written notice of the
company’s position on these issues in advance)
• Preliminary issues
• Who goes first
• Who are they going to call as witnesses
• Are there any documents that they will be relying upon
which they have not given you
• How long do you think that you will be in opening, calling
each witness, in argument?
OAPSB Labour Seminar - 2014
ARBITRATION HEARING TIPS
•
•
Consider an exclusion order
•
Grievor gets to stay as a right
•
Who will you keep as an advisor?
•
If you are going first – then don’t name your first
witness as your advisor
Have an appearance sheet
OAPSB Labour Seminar - 2014
BE AN ADVOCATE
•
Be yourself
•
Control your temper
•
Tone – strong, but informal
•
Display quiet confidence
•
Don’t celebrate when you get a “good point”
•
No facial expressions
•
Make eye contact – don’t just read
OAPSB Labour Seminar - 2014
Ontario Association of Police Services
Boards, 2014 Labour Seminar
ARBITRATION TRAINING
Seann D. McAleese