documents. Whereas the Rules of Civil Procedure of the governing
jurisdiction permit broad based document production, one
of the fundamental goals of arbitration is creation of a customtailored
process that stresses quality over quantity. Not every
document exchanged between parties is absolutely vital to the outcome.
Parties are best advised to agree to a document production
protocol that allows both sides to tell the written portion of their
story without tossing unnecessary documents into the hopper.
Unlike the court requirement for delivery of detailed affidavits
of documents that act as a chronological check-list of the parties’
documents, provincial arbitration laws contain no such requirement.
The choice to deliver this particular affidavit lies with the
parties. If the parties are time and cost conscious, they will want to
agree to avoid delivering affidavits knowing that their lawyers will
need to create books of documents that are tabbed and chronologically
numbered in any event.
Another procedural issue that the parties will need to confront
is whether or not to conduct formal examinations for discovery
before a certified court reporter. If the circumstances are such that
the written paper trail is full of gaps and a significant part of the
evidence will be based on oral testimony, examinations will be
necessary. However, assuming that both parties have documented
their positions, formal examinations may not be required. It is
vital that the employment contract address this issue as well.
Perhaps the single most important procedural issue which entails
the greatest cost is the hearing process. If the parties want to follow
standard courtroom trial procedure, the Plaintiff and any of their
witnesses would testify first and be cross-examined, leaving the
Defendant and their witnesses to follow similarly. However, the parties
do not have to proceed this way. They could agree to each deliver
an affidavit that sets out every critical piece of evidence supported by
any relevant documents, followed by cross-examination. The point
is that the parties get to choose the specific procedures that suit their
needs without being forced to participate in an exercise of overkill.
By agreeing to a streamlined set of procedures, the arbitration moves
more quickly, more efficiently and less expensively.
Although it would be unusual, parties could agree to a “no hearing”
arbitration. Under provincial arbitration law, hearings are the
exception, not the rule. A “no hearing” wrongful dismissal arbitration
might make sense if the parties’ documents categorically
answer the question of wrongful dismissal versus resignation, and
also provides all of the required evidence regarding quantum of
damages. Where the parties want to keep the timeline for a decision
to the absolute minimum, they can also provide that there are
to be no appeals. They might also agree upon an oral arbitrator’s
award instead of a formal, written award. Generally, most parties
prefer a written award.
From time to time, arbitrations that should be completed
within a year or less run past that and cost the parties more in legal
fees, arbitrators fees and disbursements. Where this happens, it is
often because the parties have chosen not to agree to a complete
procedural protocol, leaving it to a motions court judge to fill in
contested gaps. The time and cost of these motions serves to delay
the hearing which defeats the most important purposes of arbitration;
namely brevity and cost effectiveness. The parties and their
lawyers are well advised to commit to procedural protocols at the
very outset that move them to early completion and to closure. n
Jack Zwicker is a lawyer and arbitrator with Zwicker
Although unusual, parties
could agree to a “no
hearing” arbitration. They
may also agree that there
will be no appeals.
12 ❚ APRIL 2019 ❚ HR PROFESSIONAL