researching and responding to labour relation issues - october 21, 2013
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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.
Employer Labour Relations – Research Training
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
Employer Labour Relations – Research Training
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
Employer Labour Relations – Research Training
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.
Employer Labour Relations – Research Training
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.
Employer Labour Relations – Research Training
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.
Employer Labour Relations – Research Training
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.
Employer Labour Relations – Research Training
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).
Employer Labour Relations – Research Training
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.
Employer Labour Relations – Research Training
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.)
Employer Labour Relations – Research Training
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.
Employer Labour Relations – Research Training
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.
Employer Labour Relations – Research Training
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.
Employer Labour Relations – Research Training
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.
Employer Labour Relations – Research Training
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.
Employer Labour Relations – Research Training
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.
Employer Labour Relations – Research Training
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.
Employer Labour Relations – Research Training
Pitfalls of Using Computerized Databases
• 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).
Employer Labour Relations – Research Training
Pitfalls of Using Computerized Databases
• 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?
Employer Labour Relations – Research Training
Questions
• ??
Employer Labour Relations – Research Training
if not….
• exercises!