Presentation on theme: "Ontario Association of Police Services Boards, 2014 Labour Seminar ARBITRATION TRAINING Seann D. McAleese."— Presentation transcript:
Ontario Association of Police Services Boards, 2014 Labour Seminar ARBITRATION TRAINING Seann D. McAleese
OAPSB Labour Seminar ROLE OF THE ADVOCATE The purpose of the exercise is to reduce the complex and confusing to simplicity, logic and order – most of all, believability!
OAPSB Labour Seminar THREE MAIN ABILITIES OF SUCCESSFUL ADVOCACY Ability to prepare Ability to organize Ability to convey
OAPSB Labour Seminar THE SUCCESSFUL ADVOCATE THINKS Good judgement requires thought Thinking the matter through is the only way to reduce complexity to elegant, believable, simplicity
OAPSB Labour Seminar SWEATING THE DETAIL Why your side should win The facts you need to establish to win What evidence is needed How to prove the things you need to prove What legal issues must be resolved to do so What evidence the other side will likely lead and what to do about it
OAPSB Labour Seminar Key Parts in an Arbitration 1. Investigation 2. Preparation 3. Litigation
OAPSB Labour Seminar INVESTIGATION What is the case all about? Getting the documents Interviewing witnesses Visiting the scene Timing of investigation
OAPSB Labour Seminar INTERVIEWING WITNESSES First Steps Preparation Make a binder Make a player’s list Start your chronology Who’s at the meeting? No “friends” of the witness Association Rep for bargaining unit witnesses? Supervisor Location of meeting
OAPSB Labour Seminar INTERVIEWING WITNESSES Take good notes Handwritten v. typed Organize the notes by witness then for opening/closing
OAPSB Labour Seminar INTERVIEWING WITNESSES Establish rapport – don’t cut to the chase Let them tell the story Be supportive
OAPSB Labour Seminar INTERVIEWING WITNESSES Don’t let the witness think that the case rests on his/her shoulders Broaden your fact base Ask open ended questions Go back and get details
OAPSB Labour Seminar INTERVIEWING WITNESSES Listen more than you talk Pay attention – don’t take calls, read s Evaluate – do I need and/or want to call this witness?
OAPSB Labour Seminar INTERVIEWING WITNESSES Be aware of the witness demeanour during the interview Watch the witness with benevolent scepticism Question – is he/she credible?
OAPSB Labour Seminar INTERVIEWING WITNESSES Different Kinds of Witnesses set-up background factual decision maker
OAPSB Labour Seminar INTERVIEWING WITNESSES Gather the names of other possible witnesses Role play Advise of further meetings potential
OAPSB Labour Seminar INTERVIEWING WITNESSES Describe the hearing to the witness Describe the room Describe the arbitrator Explain body language open v. closed positioning
OAPSB Labour Seminar INTERVIEWING WITNESSES Use the client’s experience Draw detail from that experience Maintain the client’s confidence
OAPSB Labour Seminar DOCUMENTS From the Board From the Association / Grievor From a Third Party customer/citizen City WSIB Medical records
OAPSB Labour Seminar DOCUMENTS Do you disclose ahead of time? Do you request disclosure of their documents? How do you respond to their request for disclosure?
OAPSB Labour Seminar DOCUMENTS Originals not necessary, have available E-discovery relevant Subpoena – s. 48(12) OLRA, silent under PSA statutory power and procedural fairness How far is too far? Fishing expedition?
OAPSB Labour Seminar SCENE PRESERVATION If a picture is worth a thousand words, a site visit is worth ten thousand Pictures Perspective Floor plan
OAPSB Labour Seminar SCENE PRESERVATION Distances Obstructions Lighting Weather conditions
OAPSB Labour Seminar SETTING UP THE ARBITRATION s.123(1) PSA first Conciliation s.124(2) PSA then appointment for arbitration Commence within 30 days unless agreed sole arbitrator or panel? Mediation/Arbitration Arbitration only Solicitor General pays if making appointment
OAPSB Labour Seminar TYPE OF ARBITRATOR Selection of Decision Maker Style and Experience of Decision Maker Availability of other dates for continuation Knowledge of parties Knowledge of the grievor Past history on the topic
OAPSB Labour Seminar PRELIMINARY ISSUES Referral to Arbitration Timeliness s. 49 / s. 50 OLRA Collective Agreement provisions Mandatory v. Permissive provision but s.124(2) PSA, not timeliness issues but laches / delay may prejudice
OAPSB Labour Seminar PRELIMINARY ISSUES Adjournments Consensual Who pays? Contested Reasons for request
OAPSB Labour Seminar OPENING STATEMENT/CLOSING ARGUMENT Persuasion is the purpose Preparation of both opening and closing is imperative
OAPSB Labour Seminar OPENING STATEMENT/CLOSING ARGUMENT Opening: sets stage Closing: ties it all together Both have same objective, there are some differences
OAPSB Labour Seminar OPENING STATEMENT Purpose is to draw roadmap for arbitrator – dovetail with closing No pleadings in arbitration First impression of case Does your arbitrator decide case in first five minutes?
OAPSB Labour Seminar OPENING STATEMENT One competing consideration is that you also educate the other side 3 main types of opening: “Full” opening “Minimal” opening Middle ground
OAPSB Labour Seminar OPENING STATEMENT “Full” Opening Full description of case Detailed outline of evidence Conclusions to be drawn on facts Issues to consider
OAPSB Labour Seminar OPENING STATEMENT “Full” Opening Submissions on issues (maybe some law) Conclusion Purpose can be to show the Association what is coming at them – allows them to have ammunition to use against grievor Gives arbitrator full facts to lean on Association
OAPSB Labour Seminar OPENING STATEMENT “Minimal” Opening Statement of what issues are and position of employer but little else Often used by the union Use when you are not sure of the facts or strenght of your position
OAPSB Labour Seminar OPENING STATEMENT Middle Ground Identification of Issues, outline of facts and conclusion you will ask arbitrator to draw Normally use Middle Ground; others used much less often Remember, the party asserting the breach generally proceeds first
OAPSB Labour Seminar OPENING STATEMENT TIPS: Don’t overstate case Only outline what you’re confident you can prove Case will suffer otherwise if you don’t prove something you said you would Your credibility will suffer
OAPSB Labour Seminar OPENING STATEMENT TIPS: If problem in case – deal with it [other side will] Deal with other side’s arguments – as briefly as you can Don’t be too long
OAPSB Labour Seminar OPENING STATEMENT TIPS: Reply to Association opening: be brief can knock down other side’s case don’t repeat your own case
OAPSB Labour Seminar EVIDENCE OUTLINE BACKGROUND Name Current Position Employment History (both with Board and before) Education (if relevant) Purpose of Involvement in the Case
OAPSB Labour Seminar EVIDENCE OUTLINE The nature of the Department’s operations Location People Total # of unionized employees full-time part-time non-union
OAPSB Labour Seminar EVIDENCE OUTLINE Witness’ classification How many other person’s hold same rank Witness’ duties and responsibilities Make witness look credible Lead witness through this evidence
OAPSB Labour Seminar EVIDENCE OUTLINE EVENTS Date of Event Location Beginning Time (Approx.) Ending Time (Approx.), if needed
OAPSB Labour Seminar EVIDENCE OUTLINE EVENTS Persons Involved in the Event Relevant Conditions (weather, lighting, etc.) If recorded, how event was recorded (video, voice tape, contemporaneous notes, other notes, other)
OAPSB Labour Seminar EVIDENCE OUTLINE EVENTS Significant things happening before the event Significant things happening after the event Sequence of events
OAPSB Labour Seminar EVIDENCE OUTLINE TERMINATED EMPLOYEE Start date Current Position Employment History (both with current employer and before) Education (if relevant) The seriousness of the offence in terms of Board policy and employment related obligations The record of the grievor The long service of the grievor
OAPSB Labour Seminar EVIDENCE OUTLINE TERMINATED EMPLOYEE Whether or not the offences was an isolated incident in the employment history of the grievor Whether there was provocation (details) The nature of the offence (its seriousness)
OAPSB Labour Seminar EVIDENCE OUTLINE TERMINATED EMPLOYEE Evidence that Board rules of conduct, whether unwritten or posted, have not been uniformly enforced, thus constituting a form of discrimination Was the event spur-of-the-moment misconduct? (details) Was the conduct systematic and repetitive? (details)
OAPSB Labour Seminar EVIDENCE OUTLINE TERMINATED EMPLOYEE Was the conduct premeditated, planned and deliberate? Did the misconduct involve a breach of trust? Did the grievor fail to apologize and settle the matter after being given an opportunity to do so?
OAPSB Labour Seminar EVIDENCE OUTLINE TERMINATED EMPLOYEE Did the Board fail to permit the grievor to explain or deny the alleged offence? Was there bona fide confusion or mistake by the grievor as to whether he/she was entitled to do the act complained of? Did the grievor have an inability due to impairment or emotional problems, to appreciate the wrongfulness of his/her act? (detail)
OAPSB Labour Seminar EVIDENCE OUTLINE TERMINATED EMPLOYEE Was the harm done relatively trivial? What are the grievor’s future prospects for likely good behaviour Is there extraordinary economic hardship arising from the termination? (detail)
OAPSB Labour Seminar PRACTICAL TIPS FOR EXAMINING WITNESSES EXAMINATION-IN-CHIEF Use first name of witness Use a conversation tone Take your time (watch the arbitrator’s pen!)
OAPSB Labour Seminar PRACTICAL TIPS FOR EXAMINING WITNESSES EXAMINATION-IN-CHIEF Ask focussed yet open ended questions. DO NOT LEAD Set the stage first for the arbitrator Then deal with the specifics of the case
OAPSB Labour Seminar PRACTICAL TIPS FOR EXAMINING WITNESSES EXAMINATION-IN-CHIEF Deal with evidence chronologically Refresh memory if necessary with identified documents Have a calendar handy
OAPSB Labour Seminar PRACTICAL TIPS FOR EXAMINING WITNESSES EXAMINATION-IN-CHIEF Consider aids to testimony (pictures, diagrams, chronology of events) Deal with anticipated unflattering evidence at the outset. Avoid the appearance of trying to hide evidence. If credibility case, be upfront with admissions against interest
OAPSB Labour Seminar PRACTICAL TIPS FOR EXAMINING WITNESSES EXAMINATION-IN-CHIEF Confront with prior inconsistent statements. Remind witness of earlier statement. Ask witness to assist in terms of which statement should be accepted. Get witness to agree that her recollection is not as clear as had originally led us to believe Confront with contrary evidence of another witness (Browne & Dunn rule)
OAPSB Labour Seminar YOUR WITNESS SHOULD BE PRESENTABLE The witness should be dressed in business casual for the hearing The witness should be on his or her best manners, respectful demeanour
OAPSB Labour Seminar SHOULD YOUR WITNESS TALK TO THE OTHER SIDE? There is no property in a witness – so it is proper for counsel for the other side to seek to talk to your witness A summons only compels attendance at the hearing The witnesses are not obligated to speak to anyone before they testify
OAPSB Labour Seminar DEALING WITH THE NERVOUS WITNESS You may be more nervous than the witness but it does not help to tell them that Try the “sheep theory” if it is true, namely, tell the witness that he/she is just one of many who will be coming to testify in this matter Put bargaining unit witnesses under subpoena
OAPSB Labour Seminar OBJECTIONS - WHY OBJECT Opposing counsel is asking an objectionable question The witness is giving an objectionable answer You want to disrupt the rhythm of the other side You want to annoy the other side
OAPSB Labour Seminar OBJECTIONS - HOW TO OBJECT “I object” State the reason Get the witness to stop talking
OAPSB Labour Seminar USE OBJECTIONS SPARINGLY Not unless you have a good objection Not unless the answer will hurt you Rarely in opening or final arguments
OAPSB Labour Seminar OBJECTIONS EXCUSE THE WITNESS When you make an objection, and what you say may help the witness, ask the chair to excuse your witness from the room Do this to preserve the integrity of the evidence You do not want the witness to learn from the debate
OAPSB Labour Seminar SHOW GOOD GRACE WHEN YOU LOSE AN OBJECTION Do not show temper or grief Do not take it personally Do not re-argue the point Thank the arbitrator and move on
OAPSB Labour Seminar COMMON OBJECTIONS TO QUESTIONS ASKED IN CHIEF The question relates to an irrelevant issue. The question is leading, in that it hints at or suggests the answer, or assumes a fact that has not been proved. The question lacks a proper foundation because it presumes a background of fact which has not been established. The question invites a hearsay answer, or the answer contains hearsay, rather than a statement of facts based on personal knowledge.
OAPSB Labour Seminar COMMON OBJECTIONS TO QUESTIONS ASKED IN CHIEF The question calls for, or the answer contains, an opinion, although the witness has not been qualified as an expert. The question calls for speculation or a hypothetical answer, rather than facts. The questions invites a legal opinion regarding interpretation of the collective agreement, and this is a matter for the arbitrator to decide.
OAPSB Labour Seminar COMMON OBJECTIONS TO QUESTIONS ASKED IN CHIEF The question relates to a “privileged matter”, such as discussions during the grievance procedure. The question contains a misstatement of evidence that has previously been given. The question involved several questions which cannot be answered at the same time, i.e. it is a compound question.
OAPSB Labour Seminar PURPOSE OF CROSS- EXAMINATION To elicit favourable testimony To attach credibility To attack the reliability of the evidence
OAPSB Labour Seminar CROSS-EXAMINATION IS TOUGH The witness is hostile The story may be changing or unknown You are on stage: cross-examination is supposed to be dramatic You may not have a clue what to ask
OAPSB Labour Seminar HOW TO PREPARE FOR CROSS-EXAMINATION Maintain a running list of questions Decide what you would like to get out of the witness Get in quick and get out Be content with a “single” rather than trying to a “home run” you might strike out
OAPSB Labour Seminar EXAMPLES OF CROSS-EXAMINATION The Dream The witness gives you the dream answer that makes your case Do not celebrate Stop asking questions
OAPSB Labour Seminar EXAMPLES OF CROSS-EXAMINATION The Reality The witness fights you with each answer Try to show how unreasonable the witness is Show the conspiracy theory or concocted evidence
OAPSB Labour Seminar PRACTICAL TIPS FOR CROSS-EXAMINING WITNESSES EXAMINATION-IN-CHIEF Do not attack credibility if not a credibility case. Always be mindful of ongoing labour relations reality. Nail down timing or chronology of events. Even if witness cannot give dates, establish when the events occurred relative to one another. Insist on “yes” or “no” answers to specific questions
OAPSB Labour Seminar PRACTICAL TIPS FOR CROSS-EXAMINING WITNESSES EXAMINATION-IN-CHIEF Probe when a witness “can’t recall” get witness to agree that certain events were significant or unusual query why witness can’t recall what would/should have been a significant event avoid the “is it possible?” question when the witness says “I can’t recall” Probe conversations in terms of what prompted, who initiated, who participated Know when to stop. Don’t give the witness multiple opportunities to confirm evidence harmful to your case. Cut your loses and move on.
OAPSB Labour Seminar EXAMPLES OF CROSS-EXAMINATION Do Not Cross-Examine Unnecessarily Avoid the witness who has not hurt your case Consider doing a “fake” cross examination “Mr. Jones, have you discussed your evidence with any person prior to giving testimony today?” Sometimes you may feel the need to do a tough sounding cross-examination that does not go near substantive issues
OAPSB Labour Seminar EXAMPLES OF CROSS-EXAMINATION Do Not Simply Repeat the Direct Examination Q = “Is it your testimony that the grievor hit Mr. Jones?” A = “That’s correct” Q = “With his fist hard in the face, is that what you say?” A = “Right!” Your repetition simply emphasizes evidence which is harmful to you
OAPSB Labour Seminar CONTROL THE WITNESS The key to an effective cross-examination is control of the witness The witness who is allowed to pursue his or her own agenda will ruin your cross-examination
OAPSB Labour Seminar CONTROL THE EVASIVE WITNESS Q = “Mr. Jones, you have never asked the grievor for his explanation, correct?” A = “I remember being very busy in May, blah blah…” Q = “Mr. Jones, let me repeat my question. You have never asked the grievor for his explanation, correct?” A = “Correct” Ask your question until it is answered. If necessary, ask the chair to direct the witness to answer.
OAPSB Labour Seminar CONTROL THE WITNESS WHO WANTS TO QUESTION Q = “Mr. Jones, you have never asked the grievor for his explanation, correct?” A = “Why should I?” Q = “Mr. Jones, I am the one who is asking the questions here. I will repeat my question: you have never asked the grievor for his explanation, correct?” Ask your question until it is answered. If necessary, ask the chair to direct the witness to answer.
OAPSB Labour Seminar CONTROL THE SIDE-TRACKING WITNESS Q = “Were you in the gym on January 4th?” A = “Now that you mention the gym, I had a conversation about the promotion with the grievor in the gym back in July.” Q = “Mr. Jones, we may talk about that conversation or we may not. But my question to you is very simple: were you in the gym on January 4th?” The interesting answer can side-track you. Write it down for later and get your first question answered.
OAPSB Labour Seminar CONTROL THE RUN-ON WITNESS Q = “Were you in the gym?” A = “Yes, but that was before I got the phone call to go to the ball game, whereupon blah, blah, blah…” Q = “Mr. Jones, I did not ask you about what you did after you were in the gym. Please answer my question only or we will be here all day, do you understand?” Witnesses are allowed to explain but not to simply use the question as a spring-board to give a diatribe.
OAPSB Labour Seminar DO NOT USE “I PUT IT TO YOU” UNNECESSARILY Use it only when you want the arbitrator to know that you are presenting a question out of a duty knowing the witness will deny it. Q = “Mr. Jones, I put it to you that you set up the grievor for failure by assigning him to that work unit, isn’t that so?” A = “Not so.”
OAPSB Labour Seminar HANDLING ZINGERS Q = “Mr. Smith, you had no right to deduct that amount from his pay, did you?” A = “We’ve always done it that way – a million times.” Q = “Mr. Smith, I want you to take as much time as you need, and tell me every such occasion, with dates, times and the individuals involved.” If you get zinged, you may have to take a risk and call the witness’ bluff.
OAPSB Labour Seminar COMMON OBJECTIONS TO QUESTIONS ASKED ON CROSS-EXAMINATION The question is irrelevant to the issues, and is not designed to test the witness’ credibility. The question relates to privileged matters, such as discussions during the grievance procedure. The question calls for an opinion, although the witness is not qualified as an expert.
OAPSB Labour Seminar COMMON OBJECTIONS TO QUESTIONS ASKED ON CROSS-EXAMINATION The question calls for speculation or a hypothetical answer, rather than facts. The question lacks a foundation in that it suggests facts which have not yet been proved in evidence. The question suggests misconduct, although the advocate asking the question has no evidence to support it.
OAPSB Labour Seminar COMMON OBJECTIONS TO QUESTIONS ASKED ON CROSS-EXAMINATION The question includes a misstatement of previous testimony. The questioning is unduly harsh and oppressive, and is designed to bully or badger, demean or ridicule. The question is confusing, or it includes several questions which cannot be answered at the same time, i.e. it is a compound or double-barrelled question.
OAPSB Labour Seminar PURPOSE OF FINAL ARGUMENT Take advantage of the final opportunity to present your case. The last best opportunity to persuade the arbitrator.
OAPSB Labour Seminar STEP 1 – EXPLAIN THE NATURE OF THE CASE Simple and clear e.g. This case concerns the termination of employee X for cause. The issue is whether the theft of the office supplies constitutes theft of Board property.
OAPSB Labour Seminar STEP 2 – SUMMARIZE THE MAIN POINTS What is your argument today? e.g.. Our argument has three main points: 1. The Board has a policy prohibiting employees from taking office supplies; 2. The Grievor signed an acknowledgement that he understood this policy; and 3. The Grievor breached this policy when he took home two packages of pens and paper.
OAPSB Labour Seminar STEP 3 – SUMMARIZE THE FACTS What happened? e.g. On July 15, 2014 the Grievor went into the storeroom and took two packages of pens and paper. He put these in his briefcase and took them.
OAPSB Labour Seminar STEP 4 – ARGUE THE LAW Develop argument on each issue by summarizing legal principles, citing cases and referring to relevant facts.
OAPSB Labour Seminar RESEARCHING THE LAW Preliminary issues Evidentiary issues Final Argument
OAPSB Labour Seminar BEST SOURCES FOR ARBITRATION LAW Ontario Police Arbitration Commission Brown & Beatty, Canadian Labour Arbitration Palmer, Collective Agreement Arbitration Canada Labour Arbitration Canada – Mitchnick & Etherington Labour Arbitration Cases Canadian Labour Arbitration Summaries
OAPSB Labour Seminar STEP 5 – WHAT RELIEF DO YOU SEEK Tell them what you want Discuss grievance Uphold discipline or Board interpretation of collective agreement Remain seized if you award a remedy Remain seized for implementation and interpretation of decision
OAPSB Labour Seminar REFERRING TO AUTHORITIES More is not necessarily better Don’t read the entire citation - “The decision of arbitrator Burkett in CUPE v. City of Toronto” will do Do not race through the case; let the arbitrator keep up with you Hi-lite the case
OAPSB Labour Seminar LEGAL SUBMISSIONS Don’t use legalise or Latin that you are not familiar with Don’t misstate evidence Be accurate about the law Point out parts of the cases that are easily distinguishable Don’t patronize the arbitrator if using one of the their cases
OAPSB Labour Seminar ARBITRATION HEARING TIPS Hearing Room Set Up Sit on the arbitrator’s right side (or closest to the electrical outlet if needed) Make sure advisor sitting next to advocate Where will the witnesses sit when giving evidence? At the end of the arbitrator’s table or at a separate witness table
OAPSB Labour Seminar ARBITRATION HEARING TIPS Hearing Room Set Up Set out your documents before the arbitrator gets there Do you have enough copies for all parties, the arbitrator and a witness copy Have the exhibits easily available Have copies of documents for witness (do not use the arbitrator’s)
OAPSB Labour Seminar ARBITRATION HEARING TIPS Talk to the union lawyer to ensure that you understand what their position will be on the issues in consideration (or, in an appropriate case, provide them with written notice of the company’s position on these issues in advance) Preliminary issues Who goes first Who are they going to call as witnesses Are there any documents that they will be relying upon which they have not given you How long do you think that you will be in opening, calling each witness, in argument?
OAPSB Labour Seminar ARBITRATION HEARING TIPS Consider an exclusion order Grievor gets to stay as a right Who will you keep as an advisor? If you are going first – then don’t name your first witness as your advisor Have an appearance sheet
OAPSB Labour Seminar BE AN ADVOCATE Be yourself Control your temper Tone – strong, but informal Display quiet confidence Don’t celebrate when you get a “good point” No facial expressions Make eye contact – don’t just read
Ontario Association of Police Services Boards, 2014 Labour Seminar ARBITRATION TRAINING Seann D. McAleese