Researching and Responding to Labour Relation Issues - October 21, 2013

Research Primer:

Researching and Responding to

Labour Relations Issues

Research Primer – October 21, 2013

Mireille Khoraych

Employer Labour Relations – Research Training

Introduction

• The performance of your work necessarily involves considering legal issues,

including research, in order to advise your internal client.

• There is no “correct” way to conduct research, and this presentation does not

suggest one.

• Research involves a combination of creativity and diligence, and considerations

of efficiency.

• Your research style and approach will develop and evolve over time.

• The following are some suggestions for a systematic approach. Other

approaches are possible.

• The key point is to remember that effective legal research almost always

requires some “approach”, rather than a “scatter gun” technique.


1. Identify the purpose of the research and

the use(s) to which it will be put

• Set an objective for what the finished product

should be. Do you need a general review of legal

principles or support for a particular decision that

has been made?

• The scope and content of the research is

influenced, though not solely determined by, its

purpose.

• Timing & context will be relevant to purpose


2. Ensure that you have a good

understanding of the factual background

• If you are being given the facts by someone else,

probe to ascertain whether the facts are accurate

and sufficient.

• If you find during the course of your research that

you require additional information (which is often

the case), be prepared to ask for more facts as

you learn what the relevant considerations are


3. Define the issue

• This will often involve preliminary research to properly

identify and narrow the issue.

• There are a variety of methods you can utilize at this stage.

One common method is to review tertiary sources (general

texts, loose-leafs, etc.) at the start of the research to develop

a general understanding of the area of law.


4. Identify key resources

• Before you start, identify a list (at least a mental list)

of the key resources you need to check to arrive at

your answer.

• Similarly, you may identify “standard terms” through

index headings (to find your answer, you will need

to think about how the information may have been

classified or indexed), and develop a list of key

words and key concepts.


5. Review primary sources / documents

• Identify and scrutinize “primary” sources:

• statutes and regulations;

• collective agreement terms, including Letters of

Agreement;

• contractual terms, including Minutes or Memorandums of

Settlement;

• internal Employer policies and guidelines; and

• other governing documents.

• Update the primary sources for amendments.


Two distinct types of primary resources

• The first type is applicable government legislation in all its

forms.

• In most cases, this means statutes and regulations from the

appropriate jurisdiction that apply to the issue in question.

• When interpreting the legislation, the starting place is the

wording of the legislation itself.

• Guidance can also be taken from cases that have

interpreted the provisions you are considering.


Two distinct types of primary resources

• The second type is governing documents that apply to the

issue in question.

• Thus, if the matter concerns an alleged breach of Minutes of

Settlement or a Last Chance Agreement, the terms of that

document are a primary resource, as would be any other

policies or documents incorporated into the document (for

example, an attendance management policy cited in a Last

Chance Agreement).


6. Review secondary sources

• Identify and scrutinize “secondary” sources:

• decisions of arbitrators, courts, tribunals.

• Note any binding secondary sources such as decisions

between the same parties on the same contractual

language, or decisions of courts on a particular legal issue

or statute.

• Check to see whether any of the secondary sources have

been varied, reversed or confirmed on appeal or review.


Tribunal / Arbitration Decisions

• These come in many forms, and can range from the decisions of a standing

tribunal, like the Canada Industrial Relations Board, to decisions of individual

arbitrators under a collective agreement or adjudicators under the Canada

Labour Code.

• It is important to recognize that administrative tribunals are not bound by the

principle of stare decisis, which means that they are not bound to follow their

own decisions, nor the decisions of other administrative decision-makers.

• However, administrative tribunals will generally strive for consistency in their

decisions, especially where the tribunal in question is a standing tribunal. Thus,

the established case law of tribunals will be highly useful and persuasive in

subsequent cases even though it is not technically binding. (With individually

appointed decision-makers – e.g., labour arbitrators – there will be less

consistency and it is not uncommon for quite different and irreconcilable

viewpoints of identical issues to emerge.)


Court Decisions – Judicial Review

• When a party to an arbitration proceeding disagrees with the arbitrator’s ruling, it is open to

that party to ask the Court to review the decision of the arbitrator, to ensure it was a

properly thought out and reasoned decision – this is called a judicial review.

• There are a significant number of court decisions that are judicial reviews of administrative

tribunal decisions, including those of arbitrators. The weight that should be accorded a

judicial review decision depends on the standard of review. There are two standards of

review: correctness and reasonableness.

• When a decision has been reviewed on a correctness standard, the resulting court

decision will almost certainly set out the reviewing court’s interpretation of the law. These

decisions should be treated as fully subject to the principle of stare decisis and thus

binding on lower level courts and administrative tribunals.

• When a decision has been reviewed on the basis of reasonableness, the reviewing court is

essentially saying that there could be different answers to the question before the tribunal,

and that it is not necessary to choose the “correct” one. Because of this, the principle of

stare decisis does not, strictly speaking, apply.


7. Review tertiary sources

• Identify and scrutinize “tertiary” sources such as

periodical articles, texts, academic journals,

monographs, etc.

• Tertiary sources often provide a good overview of

an area of law, and are useful to assist you to

define and narrow the issues at the outset of the

research.


Tertiary Resources

• These represent the work and thoughts of others who are

presenting a summary or particular point of view about the

law. They are extremely useful in conducting research, and

often should be the first materials consulted to assist to

situate a particular issue into the surrounding legal context.

• However, it must be remembered that tertiary resources do

not carry the force of law. When using these resources, it is

always necessary to review the cases cited to ensure that

you agree with the interpretation being advanced in the text.


8. Try some lateral thinking or “thinking

outside the box”

• Step back from your research and see if there are

other ways of looking at the problem, other issues

to follow up, and other sources to be consulted.

• Try not to forget that research on some issues will

take time, and the thinking process cannot always

be rushed.


9. Ask your colleagues for their reaction to

the issue.

• It never hurts to ask fellow colleagues what their

view is. You never know, they may have

considered the issue before.

• By the same token, do not substitute this step for

doing your own research and thinking.


10. Analyse your research findings.

• Analyse the results of the research, ensuring that the

objective defined in the first step has been achieved.

Consider the findings set out in the material you’ve reviewed

and apply those principles to your facts. Beware of facts that

may be different from what you are dealing with, and for

principles in the case law that are qualified in some way, or

limited to particular situations.

• Do your best to come down on one side of the issue or the

other, even if it is a “grey” area. This will help to focus your

conclusions even if you have to qualify them when giving

advice.


Pitfalls of Using Computerized Databases

• Over-reliance on the ‘on-line’ medium to the exclusion of

thinking about the issue.

• Prior to heading to the computer, you must be sure to do

some preliminary research and think about the issue.

• Oftentimes, the answer will be readily available in a

tertiary source, or you may be pointed to key decisions–

either way you save time and expense.

• A corollary to the first pitfall is a recognition that not all

computer resources are well-designed for the specific

research you are conducting.



• The second common pitfall is not utilizing appropriate

search terms.

• This problem often follows from the first one. It can

involve using search terms that are too specific so that

relevant information is missed. Conversely, it can involve

using search terms that are too general, so that too

much information is found (this latter problem

significantly curtails your research efficiency).



• Unfortunately, there are no magic answers to using

electronic resources. However, you can consider some

strategies to assist you in your research.

• Do your background research . Identifying relevant and

distinctive search terms will make your computerized

research more efficient and fruitful.

• Become familiar with the database you are using. Are

there ways to limit a search without completely excluding

important cases?


Questions

• ??


if not….

• exercises!

Business

Researching and Responding to Labour Relation Issues - October 21, 2013