LANCASTER HOUSE - Labour Employment and Human Rights Law Publishers

Presenting an effective case at arbitration requires a wide range of skills, from determining what the facts are and what evidence can be put before the arbitrator, to preparing your own witnesses and questioning those who may be hostile to you. Our workshop leaders will walk you through the ins and outs of dealing with evidence – both documents and witnesses – at arbitration. Whether you're new to the process or just want a bit of a refresher, you will benefit from our experts' practical guidance on critical topics, such as:

Evidence Framework: What are the steps in developing a theory of a case? How can key issues, strengths and weaknesses be identified? How should you go about investigating the facts to prevent being surprised later in the process?
Disclosure and Production: What sorts of documents must be provided and when? What types of documents and information can be shielded from disclosure and/or production on the basis of privilege? How can parties access investigative reports, employee medical records, internal policies, union memos and other information in advance of the hearing?
Medical Assessment: When is it a good idea to ask for an independent medical assessment/examination? When will arbitrators order an independent medical examination? What orders will arbitrators make to protect the employee's legitimate privacy interests?
Witnesses: How should a witness best be prepared? What behaviour can raise questions about a witness's credibility and how can those be avoided? Should the grievor be called? What are the consequences if he or she does not testify? What do you do if a witness is unavailable or unwilling? Who can be compelled to testify, and how can subpoenas be arranged for? How is the Wigmore confidentiality test applied to determine whether an employee assistance counselor or an internal union harassment investigator are compellable witnesses at arbitration? When and how do you use expert witnesses? How do you effectively cross-examine expert witnesses?
Effective Questioning: What are the best ways to effectively examine witnesses and cross-examine the other side's witnesses? How should you deal with uncooperative witnesses? With similar past misconduct? What is the effect of the rule in Browne v. Dunn? What are the scope and limits of re-examination?
Documents: What is the best way to introduce documentary evidence? What is the "best evidence" rule? When can a witness use a document to aid in recollection, and what is the effect of this use?
Surveillance Evidence: What test for admission of video surveillance evidence is predominate in the arbitral jurisprudence: the relevance test or the reasonableness test? What are the rules governing evidence gained through "electronic surveillance," such as monitoring employee email or computer use? What is the impact of PIPEDA in the federal sector?
Objections: How, when, and why should you object, or refrain from objecting to, the other side's evidence? How should objections from the other side be handled?
Post-Discharge Evidence: When will arbitrators consider post-discharge evidence?