Effect given to the recommendations of the committee and the Governing Body - Report No 330, March 2003

Case No 1943 (Canada) - Complaint date: 12-NOV-97 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 28. When it last examined this case, which concerns government interference in the impartiality of the process of arbitration, the Committee noted that the Ontario Court of Appeal had ruled in November 2000 that “abandoning the established practice of selecting chairpersons from the roster and the unilateral adoption by the Minister of a practice of personally selecting retired judges to replace them ... gives rise to a reasonable apprehension of bias and gives the appearance of interference with the institutional independence and the institutional impartiality of the boards of arbitration” [324th Report, paras. 24-26].
2. 29. In a communication dated 2 April 2002, the Canadian Labour Congress (CLC) mentions that the Government has appealed the decision of the Court of Appeal to the Supreme Court of Canada. According to the CLC, this indicates that, rather than reverting to the prior appointment system or entering into consultation process with unions and employers, the Government continues to take steps to establish and implement a system that does not have the confidence of the parties. This continuing intention has been confirmed by two legislative measures taken following the decision of the Court of Appeal. Firstly, section 20(5) of the Ambulance Services Collective Bargaining Act, 2001, provides that the Minister may appoint a person not recognized as mutually acceptable to both trade unions and employers; in addition, the legislation specifically empowers the Minister to depart from past practice concerning the appointment of chairs of arbitration boards and to do so without notice or consultation with social partners. Secondly, similar provisions were included in back-to-work legislation involving education workers. The Back to School Act (Toronto and Windsor), 2001, named designated individuals to act as interest arbitrators; if they did not agree, the Minister could appoint a replacement without previous experience as arbitrator, who was not recognized as mutually acceptable to both trade unions and employers; and the legislation specifically empowers the Minister to depart from past practice concerning the appointment of chairs of arbitration boards and to do so without notice or consultation with employers and trade unions. For the CLC, these legislative measures continue to impair the confidence of the parties in the independence and impartiality of the arbitration process, and demonstrate the Government’s continued unwillingness to establish such procedures, in consultation with workers’ and employers’ organizations.
3. 30. In its communication of 3 October 2002, the Government states that it has yet to appoint arbitrators under the Ambulance Services Collective Bargaining Act. It would prefer that the parties choose their own arbitrator but the wide discretion given to the Minister to appoint an arbitrator allows the Government to assist quickly the parties in resolving labour disputes. As regards the Back to School Act (Toronto and Windsor), 2001, the Government intervened to legislate education support staff back to work. The mediation-arbitration process was fair and open, and the individuals designated in the Act were well-respected mediators and arbitrators. In Toronto, the parties were able to reach agreement without arbitration; in Windsor, the dispute was resolved by arbitration. The Government requests the Committee to defer its examination of the case until the Supreme Court of Canada has rendered a decision.
4. 31. The Committee notes this information. Stressing once again that chairpersons of arbitration boards should not only be strictly impartial but should also be seen to be so, the Committee strongly urges the Government to take legislative measures to ensure that these principles are respected in the designation of arbitration boards and chairs, in order to gain and maintain the confidence of both sides in the system. The Committee requests the Government to keep it informed of developments and to provide it with a copy of the decision of the Supreme Court of Canada once it is issued.