This was an arbitration under a collective agreement in the garment industry in Toronto. The agreement was between a union and an association of employers, rather than with one employer. The agreement also stipulated that Harry Arthurs was to be the arbitrator for all disputes. For more than 60 years the arbitrations had been conducted without lawyers, but the employer sought to have counsel in the arbitration, and the union objected.
- Does a party to arbitration proceedings under this collective agreement have an absolute right to legal representation?
- If not, should the arbitrator's discretion be exercised so as to permit representation?
The common law did not guarantee legal representation to persons involved in arbitrations.
Arthurs recognizes that although the right to counsel is not required under common law, it is generally seen as a favorable thing and therefore most tribunals should favour it. However, he also states that in some cases having counsel in the tribunal might actually interfere with proceedings. This specific arbitration procedure (which he was solely responsible for) is known for being very expeditious and informal. The arbitrator worries that these benefits would be lost by allowing lawyers into the arbitrations, unless they were needed for a serious question of law. Further, he argues that when the parties agree to this type of arbitration, they know that lawyers will not be involved; thus to allow lawyers would be adverse to the parties’ legitimate expectations. On these reasons he denies letting the party be represented by counsel (other than on a specific question of law), absent mutual consent of the parties.
Although allowing counsel to represent parties in administrative tribunals is generally favourable, in certain circumstances - especially where there are informal procedures - it may delay the process or be contrary to the parties' legitimate expectations.
The decision of the arbitrator was overturned by the Divisional Court.