Court Reviews Interest Arbitration Award

By: Frank Cesario

In Revera Retirement v. Armstrong, 2010 ONSC 3041, the Employer brought a judicial review application seeking to quash an interest arbitration award under the Ontario Hospital Labour Disputes Arbitration Act. The arbitration board had conducted a hearing on seven issues on which the parties were unable to agree. On the judicial review application, the employer challen­ged only the wage award.

The Employer argued that the board denied it procedural fairness by considering two post-hearing developments – ie. the settlement of a different collective agreement, and four published salary surveys throughout Canada – without notifying the parties in advance or hearing submissions on those issues. The Employer also argued that the board exceeded its jurisdiction by relying on information and material not contained in the evidence at the hearing.

The court dismissed the Employer's judicial review application. The court relied on an earlier decision of the Supreme Court of Canada to recognize that interest arbitrations are fundamentally different than grievance/rights arbitrations, because interest arbitrations are less "adjudicative". The court also noted that interest arbitrators come to their task familiar with the current issues in labour relations and the bargaining of other parties in relevant public sector areas.

The court relied on the fact that the Board expressly gave full consideration to the submissions of the parties, and concluded that the board had treated the additional material as merely "supplemental" and "confirmatory" to the material presented by the parties. The court also noted that the information was public and that its accuracy was not questioned. Finally, the court concluded that "[w]hile it may have been preferable to have provided a further opportunity to comment on this information", the Board's use of the information was not unfair or outside its jurisdiction.

This is a notable decision for two reasons: (1) it is relatively ra­re for parties to judicially review an interest arbitration award, and therefore it is interesting to see how the court approached the task; and (2) the court’s reasoning demonstrates that it is alive to the unique task of an interest arbitration board and that it will ­allow an interest arbitration board leeway and flexibility to do its job, rather than second-guessing it.

For more information, please contact Frank Cesario at 416.864.7355 or your regular Hicks Morley lawyer.