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2018-03-14T11:13:02+00:00 March 14, 2018|Arbitration|

The Scope of Documentary Production at Arbitration

An arbitrator in the fairly recent case of ALPA Pre-engineered Panels Inc v Liuna, Local 183, 2017 CanLII 66945 (ON LA) considered the scope or breath of documentary production in an arbitration hearing under a collective agreement. There is some debate in the case law.

In the civil process, the Rules of Civil Procedure require pleadings, the discovery of documents, and oral and written discovery of the opposite party. This is not the case in arbitration proceedings under a collective agreement, although the grievance form does, to some degree, set out the scope dispute and the grievance procedure should further clarify the positions.

It is generally accepted that the test for production of documents in an arbitration hearing is arguable relevance, meaning that a party is required to produce, upon request, any arguably relevant documents in its possession save and except for privileged documents. In saying this, in West Park Hospital v. O.N.A., [1993] O.L.A.A. No. 12 (Knopf) applied a narrow approach and stated:

However, where the disclosure is contested the following factors should be taken into consideration. First, the information requested must be arguably relevant. Second, the requested information must be particularized so there is no dispute as to what is desired. Third, the Board of Arbitration should be satisfied that the information is not being requested as a “fishing expedition”. Fourth, there must be a clear nexus between the information being requested and the positions in dispute at the hearing. Further, the Board should be satisfied that the disclosure will not cause undue prejudice.

A broader approach was adopted in Toronto District School Board and C.U.P.E. 4400, (2002) 109 L.A.C. (4th) 20 (Shime) where the arbitrator considered and compared the judicial approach to production in civil and criminal proceedings to that of arbitration, and held that:

All documents which are arguably or seemingly relevant or have a semblance of relevance must be produced. The test for relevance for the purposes of pre-hearing is a much broader and looser test than the test of relevance at the hearing stage. A board of arbitration, at the pre-hearing stage, is simply not in a position, and ought not to lay down precise rules as to what may be relevant during the course of the hearing.

The issue of production of documents at arbitration was most recently considered in ALPA Pre-Engineered Panels Inc. where the West Park approach was found to be most appropriate. In coming to this conclusion, Arbitrator Gee relied on the following comments from Arbitrator Stout in Amalgamated Transit Union and Toronto Transit Commission, 2016 CanLII 87623 (ON LA) where the arbitrator considered the reduced scope of production under amendments to the Rules of Procedure and their impact on production in labour arbitrations:

While I feel that the TDSB, supra, liberal approach is no longer appropriate, I am also not convinced that a test based strictly on relevance is the answer. I am of the view that some component of discovery must be recognized and arbitrators must exercise their discretion in a balanced and reasonable manner to ensure that the parties receive a fair but expedited hearing. I also appreciate that the production of documents can sometimes lead to discussions to resolve the matter. However, document production should not be a license for a party to engage in a fishing expedition to determine if they have a case. Rather, document production, should assist the parties in organizing their case so that it may be heard in the most expedited manner.

I am of the opinion that the West Park, supra, approach of Arbitrator Knopf is a more balanced, practical and pragmatic approach to the issue of production. This approach recognizes an element of discovery, but also places limits on broad requests that can cause delay and unnecessary costs.

I agree and adopt the approach of Arbitrator Knopf in West Park, supra, with the added element of proportionality, which I believe is essential to providing the parties with a fair and efficient hearing.

The case is important when dealing with requests for production of documents in arbitration proceedings. Production of documents should assist in “organizing their case” not in determining if they have one. While arbitration is a less formal process than courts, it is nonetheless critical to the sanctity of the process to ensure that rules are in place that recognize the unique features of arbitration while ensuring fairness to all concerned.