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Toronto Workshop Series

Grievance Arbitration Advocacy: An in-depth training session on preparing and presenting an effective case


May 9 - 10, 2017
The Westin Harbour Castle



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Speakers


Colin Johnston
Arbitrator/Mediator

Harvey Beresford
Arbitrator/Mediator

Karen Bock
Employer Counsel
DLA Piper (Canada)
Diane Brownlee
Arbitrator/Mediator

Sarah Crossley
Employer Counsel
Littler
Craig Morrison
Union Counsel
McMahon Morrison Watts
Georgina Watts
Union Counsel
McMahon Morrison Watts


Workshop Summary


This in-depth workshop will provide participants with the knowledge and skillset required to mount a successful grievance arbitration case or to give maximum assistance to counsel or the advocate who is doing so. Over the course of the two-day session, seasoned arbitrators and top union and employer counsel will lead participants in an interactive discussion exploring the legal landscape, best practices and winning strategies for grievance arbitration advocacy. In addition, participants will have an opportunity to hone their advocacy skills by presenting/responding to a realistic grievance drawn from actual caselaw. Representing either the management or union position, attendees will work in small groups to participate in a grievance arbitration simulation designed to enhance the preparation and presentation skills necessary for grievance arbitration, while receiving invaluable guidance and feedback from workshop leaders.

In this comprehensive training session, participants will gain the skills and expertise necessary to engage in, or assist the counsel or advocate who engages in, the following:

  • Identifying the key issues, strengths and weaknesses of a case
  • Addressing preliminary issues, such as timeliness and arbitrability
  • Obtaining and providing appropriate disclosure
  • Making persuasive opening and closing statements
  • Preparing, examining and cross-examining witnesses
  • Effectively gathering and presenting evidence and caselaw
 

Attendees of

Grievance Arbitration Advocacy: An in-depth training session on preparing and presenting an effective case

will receive a complimentary copy of Lancaster's Winning Cases at Grievance Arbitration, by Jeffrey Sack, Q.C.

  Winning Cases book cover


Program


DAY ONE


8:00 a.m. – 9:00 a.m.

BREAKFAST AND REGISTRATION


9:00 a.m. – 9:20 a.m.

Introductions and Opening Remarks


9:20 a.m. – 10:00 a.m.

Crafting an Effective Advocacy Strategy


  • Identifying the key issues, strengths and weaknesses of a case
  • Investigating the underlying facts of a file and understanding the scope of the issues
  • Best practices for developing a case theory
  • Adapting a case theory to account for new evidence or issues as they arise
  • Tips and strategies for making the arbitration process more cost and time efficient


10:00 a.m. – 10:30 a.m.

Remedies


  • What remedies should parties consider seeking?


10:30 a.m. – 10:45 a.m.

MORNING BREAK


10:45 a.m. – 11:45 a.m.

Gathering Evidence


  • When is it advisable for parties to seek an independent medical examination?/li>
  • Review of arbitral tests for the admission of video surveillance evidence, internet browser history and computer monitoring evidence
  • When, if ever, will arbitrators consider evidence of misbehaviour that is not part of the conduct for which an employee has been disciplined?
  • In what circumstances is post-discharge evidence admissible?
  • Understanding and applying the Wigmore confidentiality test


11:45 a.m. – 12:15 p.m.

Obtaining and Providing Disclosure


  • Recognizing the sort of documents that must be disclosed by each side prior to arbitration
  • Understanding what types of documents and information are shielded from disclosure by privilege


12:15 p.m. – 1:00 p.m.

Preliminary Issues


  • Addressing issues of timeliness, arbitrability, jurisdiction, production, particulars and order of proceedings at arbitration
  • Considering the status of third parties
  • Canvassing whether the parties can proceed on an agreed statement of facts


1:00 p.m. – 2:00 p.m.

LUNCH


2:00 p.m. – 2:40 p.m.

The Opening Statement


  • The essential elements for a persuasive opening statement
  • What power does an arbitrator have to admit evidence?
  • Articulating your theory of the case and connecting the potential evidence to your theory
  • Responding to the employer’s opening statement


2:40 p.m. – 2:55 p.m.

Review of Scenario


2:55 p.m. – 3:10 p.m.

AFTERNOON BREAK


3:10 p.m. – 4:10 p.m.

Mock Arbitration: Preliminary Issues and Opening Statements


  • Participants will gather in small groups to identify preliminary issues raised by the scenario and discuss effective strategies for addressing these questions at arbitration.
  • Participants will remain in small groups to prepare an opening statement for arbitration. Participants will have an opportunity to present an opening statement and receive feedback from workshop leaders.


4:10 p.m. – 4:30 p.m.

Final Remarks and Questions




DAY TWO


8:00 a.m. – 9:00 a.m.

BREAKFAST AND REGISTRATION


9:00 a.m. – 9:10 a.m.

Introductions and Opening Remarks


9:10 a.m. – 10:10 a.m.

Introducing and Presenting Evidence Effectively


  • Understanding who bears the burden of proof
  • What power does an arbitrator have to admit evidence?
  • Choosing between in-person testimonial evidence and documentary evidence
  • Considering the use of hearsay evidence
  • How, and when, to object to evidence


10:10 a.m. – 10:25 a.m.

MORNING BREAK


10:25 a.m. – 11:45 a.m.

Preparing and Examining Witnesses


  • Tips and strategies for witness selection
  • Best practices for preparing witnesses
  • Preparing witness statements
  • Considering the use of a subpoena
  • Review of factors relied on by arbitrators when assessing the credibility and reliability of a witness
  • Should a grievor always be called to testify at arbitration?
  • How to successfully examine and cross-examine a witness
  • Understanding the rule in Browne v. Dunn
  • Considering how, and when, to use expert evidence


11:45 a.m. – 12:20 p.m.

Closing Arguments


  • Crafting an effective closing argument
  • How does a closing argument differ from an opening statement?
  • Summarizing the evidence in an effective and logical manner
  • Connecting the evidence to your theory of the case
  • Responding to the employer’s evidence and arguments


12:20 p.m. – 1:20 p.m.

LUNCH


1:20 p.m. – 1:35 p.m.

Use of Caselaw


  • Researching caselaw in advance of arbitration
  • Effective strategies for citing caselaw and legislation at arbitration
  • Connecting the caselaw to your theory of the case


1:35 p.m. – 1:45 p.m.

Review of Scenario


1:45 p.m. – 3:00 p.m.

Mock Arbitration: Preparing, Examining and Cross-Examining Witnesses


  • Participants will break into teams of four to practice preparing, examining and cross-examining a witness. Workshop leaders will circulate among teams and provide feedback during this exercise.


3:00 p.m. – 3:15 p.m.

AFTERNOON BREAK


3:15 p.m. – 4:15 p.m.

Mock Arbitration: Closing Statements


  • Participants will remain in small groups to prepare a closing statement. Participants will have an opportunity to present a closing statement and receive feedback from workshop leaders.


4:15 p.m. – 4:30 p.m.

Final Remarks and Questions



Accreditation


HRPA Continuing Professional Development

The Human Resources Professionals Association (HRPA) has approved Lancaster House as a Continuing Professional Development Partner, guaranteeing that participation in our workshops will be accepted by the HRPA for CPD credit.


Lancaster House CPD
  • "Members of the Law Society of Saskatchewan should contact their Law Society regarding CPD Approval."
  • CPD for Members of the Law Society of Upper Canada: 12.0 Substantive Hours; 0 Professionalism Hours.
  • This program has been approved by the Law Society of New Brunswick for 12.0 Continuing Professional Development hours.
  • Members of the Nova Scotia Barristers Society may count this program for 12.0 Continuing Professional Development hours.