Labour Arbitration in Canada, by Morton Mitchnick and Brian Etherington, Toronto: Lancaster House, 2006, 426 pp., ISBN 0-920450-29-6

Grievance arbitration, a process for the binding settlement of disputes during the life of the collective agreement, has been entrenched in Canadian industrial relations for more than half a century. An important feature of our arbitration system is the near universal requirement that arbitrators file their decisions with the labour ministry (or some equivalent organization) of the jurisdiction in which the arbitration falls. These decisions are publicly available and represent an almost complete set of the thousands of arbitration awards decided in Canada in any given year.

This accessible case law has spawned a variety of efforts to report, categorize, and analyze trends in arbitration. Labour Arbitration Cases, the oldest reporting service, chooses and publishes a small proportion of decisions, without commentary, that its editors believe raise new issues or deal with old issues in an innovative way. Lancaster House’s various on-line data bases provide in-depth commentary of a handful of cases each month that its editors deem significant. The “bible” of labour arbitration since its first publication in the 1970s has been Canadian Labour Arbitration, usually referred to simply as “Brown and Beatty” (the names of its authors). It provides a topic by topic analysis of the myriad arbitration issues, referenced to the cases through extensive footnotes. It is available both on-line and in a hard copy version that is too massive in size for easy portability.

To this field has been added Labour Arbitration in Canada, a concise topical review of the procedural and substantive issues in grievance arbitration. Its authors are well regarded arbitration experts. Morton Mitchnick, for many years one of the country’s leading arbitrators, is now in full time practice with a Toronto law firm, acting on behalf of employers. Brian Etherington is a labour law professor at the University of Windsor and an experienced arbitrator. To the authors’ credit, cases are drawn from across Canada and the volume is not Ontario-centric.

The book is divided into three parts of roughly equal size: 1) Evidence and Procedure; 2) Discharge and Discipline; and 3) Contract Interpretation. Each of these main parts is further divided into chapters by topic area, with a total of 25 chapters in all. The structure is a sensible one and closely mirrors, for example, the way I teach my own business school course on grievance arbitration. Each chapter is further broken down into sub-topics and these sub-topics are set out in the table of contents, greatly simplifying the task of finding needed information. The coverage is comprehensive, but succinct. The leading cases are cited and discussed and there is sufficient information on each topic to enlighten the reader. Additional sources are provided at the end of many of the sections, although these sources should be broadened to include those from all publishers, not just Lancaster House.

The structure of the book replicates that of the publisher’s “Leading Cases On-Line” website, which itself is based on the book Leading Cases in Arbitration, also by Mitchnick and Etherington. In theory, this should provide valuable synergies, enabling readers who are also website subscribers to find updates of the various topics covered in Labour Arbitration in Canada. Perhaps it was too soon after publication to see these benefits, but when I checked the website on topics with which I was personally familiar, I was unable to find important cases issued in the past 18 months. I suspect this will be remedied in time.

The first part of the book focuses on the process of arbitration. It contains nine chapters and includes discussions of jurisdiction, arbitrability, evidence, remedies, judicial review, and duty of fair representation. The broad and important debates, such as those following the Supreme Court of Canada’s decision in Weber, and the impact of the Charter, are set out of course. But the more practical issues which arbitrators encounter in hearings, like grievance procedure time limits, the rule in Browne v. Dunn, post-discharge evidence, or the admissibility of surveillance videos, are also addressed. On these and similar subjects there is enough information for the reader to grasp the main issue at hand, have reference to the important arbitration and court decisions, and note any divergent opinions in how this issue is handled. For example, with respect to post-discharge evidence, the authors contrast its application in different parts of the country. This section of the book effectively covers the “nuts and bolts” of how our grievance arbitration system works.

The second major part of the book focuses on discipline and discharge. Since these cases form a disproportionate share of all arbitrations, the decision to devote almost one-third of the book to this topic is justified. The authors highlight the main concepts, such as the just cause standard, onus of proof, progressive discipline, and mitigating factors. Key cases are cited in each of these (and other) areas, frequently accompanied by a list of specific principles gleaned from these cases, such as for example, the factors developed by Professor Innis Christie for linking illness to reinstatement. After the general concepts are introduced the discussion moves to the most common grounds for discipline. Considerable space is devoted to dishonesty, illegal conduct, off-duty behaviour, disloyalty, insubordination, abusive conduct, sexual harassment, and illegal strikes. Leading cases are cited on each topic, often accompanied by direct quotes from the decision that highlights the key points of the case. The last two chapters of this section address non-disciplinary discharge, primarily focusing on absenteeism due to illness or disability (so-called “innocent absenteeism”), which leads naturally into an extensive discussion of the duty to accommodate. Accommodation cases have become a major part of the arbitration landscape since the mid-1990s and the authors capture well the evolving jurisprudence.

The final section of the book is devoted to the myriad contractual conundrums arbitrators are required to resolve on a day-in, day-out basis. The section begins with a chapter on general principles of contract interpretation that reviews the duty of fairness, ambiguity, past practice, and estoppel, among other topics. This is followed by chapters on specific subjects such as bargaining unit work, seniority, promotions, layoffs and recalls, hours of work, wages and benefits, leaves of absence, and union rights and responsibilities. As they do throughout the book, the authors identify the key cases and do a fine job of highlighting consensus or divergence within a particular topic. Their discussion on call-in pay, in which three distinct arbitral approaches to this issue are identified, is a good illustration.

In summary, Labour Arbitration in Canada represents a valuable addition to our labour relations library and a necessity for labour lawyers and labour relations and human resource professionals. The volume is comprehensive, yet of a manageable size that easily fits in a briefcase, an attribute of special interest to practitioners. The book should be considered as a textbook in university labour arbitration courses and for training and development programs. It is reasonably priced, it is up to date, and it presents a good mix of facts and analysis. Important in our field, the book is balanced and accurately reflects the existing arbitration case law in each of the many topics that it tackles. Since several of my own arbitration awards are discussed, I can vouch for the fact that the volume presents a fair review of the cases that are highlighted. The authors are to be commended for a job well done.