THERE ARE MANY FACTORS TO ACCOUNT FOR WHEN CONSIDERING THIS
ALTERNATIVE TO THE OVER-BURDENED JUSTICE SYSTEM
It is probably just as well that many formal employment contracts
contain arbitration clauses. Given the shortage of
superior court judges and lack of funding in Canada’s largest
cities, the timelines for civil litigation can easily run five years
before actions reach trial. In the meantime, legal costs mount for
both sides, together with the uncertainty of not having a decision.
For employers and employees who need a quicker resolution of
their disputes, private arbitration provides an alternative option.
However, it is not sufficient for employers and employees merely
to state that they will arbitrate any disputes. They need to go further
and specifically provide a number of arbitration procedures if
they want to avoid conflict after starting the process. Not doing so
can result in one side or the other launching motions to a justice
of the Superior Court for direction. Where the parties leave procedural
gaps, it is a motions court judge who has the task of filling
in those gaps.
For example, if the arbitration provision in the employment
contract does not specify the number of arbitrators, under provincial
arbitration law, a single arbitrator will preside. Should the
parties be more comfortable with multiple arbitrators, as unusual
as this might be in these circumstances, they need to provide for
this. In selecting an arbitrator, the parties will want to ensure that
the person they name is familiar with employment law. As is the
case with judges, arbitrators have different practice backgrounds.
Familiarity with customary employment industry practices and
wrongful dismissal law are important.
Beyond these provisions, employers and employees will need to
address a host of other issues, usually at a preliminary meeting
of counsel and the arbitrator. It is at this meeting that procedures
from beginning to end are scheduled. For example, if the
parties seek a summary arbitral process, they will have to address
the extent to which each party is required to produce relevant
By Jack Zwicker
HRPROFESSIONALNOW.CA ❚ APRIL 2019 ❚ 11