Seeking a Balance
The conduct of a hearing
For the vast majority of grievors, their experience at adjudication (as it is referred to under the Public Service Staff Relations Act) or arbitration is their first such experience and most, understandably, have many questions relating to the conduct of hearings. The following is a very general outline regarding the procedure which is followed at adjudication or arbitration hearings.
An arbitration hearing is similar to a court case in terms of procedure but is less formal in nature. Hearings are attended by the following people: the adjudicator or arbitrator, the representatives for the grievor and the employer, the grievor(s), one or more representatives for the employer, and, finally, witnesses.
At the outset of a hearing, certain preliminary matters will be dealt with by the representatives for both sides: agreement of the parties that the procedural requirements of the collective agreement have been met, that the grievance is timely and the arbitrator or adjudicator is properly seized with the grievance etc. A common preliminary matter revolves around the issue of the exclusion of witnesses. Witnesses may or may not be excluded from the hearing room until they have finished giving evidence. Either or both sides will request of the arbitrator or adjudicator the exclusion of witnesses in cases where the credibility of witnesses is in issue. If this is the case and the request for exclusion is granted, all witnesses who are not a "party" to the case will be asked to leave the room. Grievors are evidently a party to their own case and therefore cannot be excluded from the hearing. Once the preliminary matters have been dealt with, the introduction of evidence will start.
In disciplinary cases, the employer must present its evidence first. This is commonly referred to as the employer having the "burden of proof". The employer will therefore call each of its witnesses in turn and lead its evidence through the questioning of witnesses. This is referred to as examination in chief. During the course of examination in chief, the representative calling that witness is not permitted to ask leading questions on contentious issues. A leading question is a question which suggests an answer, and any question that can be answered by simply saying "yes" or "no" is a leading question. After the representative for the employer has finished questioning his or her witness, the union will have an opportunity to cross-examine that witness. Cross-examination often consists of nothing but leading questions. Should the union raise any new issue during cross-examination which the employer did not raise during evidence in chief, the employer will have the opportunity to deal with this new issue alone, during reply. Once this has been dealt with, the employer will call its next witness and the process is repeated until the employer has called all of the evidence which it intends to present. The grievor will then follow the same procedure in his or her defence. With respect to grievances arising out of the interpretation or application of the collective agreement, the union has the "burden of proof" and so the same process is followed with the union presenting its evidence first.
After all of the evidence has been adduced, the representatives for each side will present their arguments. The order of argument follows the order in which the evidence is adduced.
It is, at times, necessary for one side or the other to call an expert witness to testify. Expert witnesses, unlike "ordinary" witnesses, are permitted to give opinion evidence. The use of an expert witness occurs most often in cases where medical expertise is needed. The admissibility of expert evidence is governed by the Supreme Court of Canada’s decision in R. v. Mohan (1994) 2 SCR 9. The initial perquisite for admission is that the opinion and its methodology must have a scientific grounding. In addition, the Supreme Court set out the following criteria governing admissibility: a) relevance, b) necessity in assisting the trier of fact and, c) the absence of an exclusionary rule. Experts are witnesses, not advocates. Nor are they arbitrators or adjudicators meant to decide the very issue before the tribunal. The expert witness is, in theory, to assume an impartial and objective role helpful to the tribunal in matters which require special knowledge or expertise that is beyond the experience of the adjudicator or arbitrator.
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Date Modified : 2008/04/01
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