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  • Bill Cole

Expert Witnesses at Interest Arbitration

Interest arbitration is not a process that typically requires witnesses, let alone experts. Interest arbitrators, and the parties' nominees if in place, are experts in the collective bargaining process, often with a detailed understanding of the sector in which the dispute occurs. In a small number of cases a witness may appear to give evidence in support of a position on a proposal before the arbitrator. On rare occasions, one of the parties may try to qualify a witness as an expert.

In one such case, where I represented the union, the employer retained a consultant to perform an evaluation of a city's ability to raise revenues, reduce expenditures and assess the resulting impact on the local economy. All of this was in support of the city's argument that it did not possess the ability to pay normative wages and benefits to its fire fighters, as well as to support a conclusion that the fire service was not a priority for city spending. The employer tried to qualify the consultant as an expert.

Arbitrator Mary-Ellen Cummings concluded that the witness was not an expert. She noted that the witness was an expert in business valuation and the impact of economic factors on commercial businesses, however he lacked expertise in municipal finance, or advising municipal, or other governments, in analyzing choices around revenue generation, expenditure reduction and their impact on a municipality. He did not possess expertise in advising governments in determining priorities.

In her oral (and later written) reasons, Arbitrator Cummings concluded:

In order for a witness to be qualified to give opinion evidence, the arbitration board must be satisfied that the witness possesses a degree of expertise that is outside the typical expertise of the arbitration board. The arbitration board must also be satisfied that the person proffered to give opinion evidence possesses expertise in the area about which he or she proposes to give an opinion. These tests need to be satisfied because arbitrators give some degree of deference to the opinions of experts.

Interest arbitration is a process of replication - examining the market realities in which a union member works, to ensure that she/he receives fair pay and working conditions for the work they do. While governments have a responsibility to balance priorities in revenue generation and spending, they also have the responsibility to pay suitable market compensation. As many arbitrators have observed, the member should not be expected to subsidize the community through accepting lower wages or benefits.

London Professional Fire Fighters Association and the Corporation of the City of London, (unreported) written decision - December 19. 2013 (M.E. Cummings).


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