A recent decision by an Ontario arbitrator provides a striking
illustration of the principle of arbitral deference and is a
cautionary tale about the potential use of audio recordings, even
those made without knowledge or consent. In Direct Energy
Marketing Limited v Unifor, Local 975, 2014 CanLII
657 (ONLA ) the arbitrator was asked and ultimately agreed to admit
as evidence an audio recording which was secretly made during
collective bargaining by a member of the union's negotiating
Background: Recordings of Negotiations
After negotiations between Direct Energy Marketing and Unifor
failed to produce a new collective agreement, the union went on
strike. The labour dispute ended with the signing of a Memorandum
of Settlement in April 2012. The union alleged that the employer
violated the undertakings it made in the Memorandum and the
negotiations by failing or refusing to negotiate shift
Between December 2011 and April 2012, a member of the
union's bargaining committee surreptitiously recorded some of
the negotiation sessions. The recordings were then edited to delete
the dead space and a transcript was made. The union sought to rely
on both the recordings and the transcript as evidence to establish
what representations were made by the employer during the
In the meantime, in another grievance between the same parties
before a different arbitrator, the same evidentiary issue in
respect of the same audio recording arose. In that proceeding, the
arbitrator declined to admit the transcript as evidence due to
concerns about its reliability, but determined that the relevance
and probative value of the audio recording was such that it should
be admitted with any potential defects it contained going to
In the subsequent case, the union asked that the second
arbitrator defer to the first arbitrator's earlier ruling and
admit the audio recording as evidence. The employer argued that the
surreptitiousness in making the recording was such a heinous
affront to acceptable labour relations conduct that the recording
should not be admitted as a matter of policy.
Decision: Union Entitled to Introduce Recordings
In the result, the second arbitrator allowed the audio recording
be admitted as evidence out of deference to the earlier ruling on
the same issue between the same parties.
The second arbitrator identified two lines of jurisprudence
regarding the admission of surreptitiously obtained evidence. The
"relevancy" approach, adopted by the first arbitrator,
admits all relevant evidence regardless of how it is obtained. The
more restrictive approach, which the second arbitrator noted he
generally endorses, takes greater account of the impact of
admitting the evidence on the collective bargaining relationship.
In this regard, most instances of surreptitious recording violates
the reasonable expectation of the parties and the standard of
acceptable conduct in bargaining and is therefore a serious breach
However, the second arbitrator noted the importance of
consistency in the decisions of arbitrators, particularly those
made under the same collective agreement between the same parties.
Therefore, in order to avoid conflicting interpretations of the
same collective agreement, an arbitrator should not deviate from a
prior arbitral award unless convinced that the prior award is
clearly wrong. This decision of course begs the question of whether
the opposite outcome would have been reached solely by virtue of
the two cases being scheduled by the parties and decided in reverse
Implications for Employers
Arbitrators are not strictly bound by the doctrine of precedent,
and they are not obliged to follow one another's decisions.
However, recognizing the importance of consistency and
predictability, arbitrators generally follow an earlier decision
involving the same issue between the same parties, unless the
arbitrator is convinced the earlier decision was clearly wrong.
The application of arbitral deference can be particularly
striking when there are competing lines of jurisprudence on an
issue leading to conflicting conclusions, as in the case here in
respect to admissibility of surreptitious audio recordings. Given
that the two approaches of dealing with surreptitious audio
recordings are both reasonable and well accepted, a party would
face significant uncertainty when first seeking to introduce such
recording as evidence. However, once successful in the first
instance, the early victory may yield benefits for all subsequent
proceedings where the same issue arises.
The foregoing provides only an overview and does not
constitute legal advice. Readers are cautioned against making any
decisions based on this material alone. Rather, specific legal
advice should be obtained.
Labour and employment law had some interesting developments in 2016. What follows are a few highlights from the last year and an introduction to an issue that may attract significant attention in 2017.
Businesses and employers face exposure to a variety of claims for mismanagement or misuse of personal information by employees. Damages may depend on how sensitive the information is and how it is misused.
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