In a legal dispute, two parties may pick an arbitrator to find a resolution to a problem. They don’t pick them because they have a magical power to know what the right decision is. They expect that, presented with all of the facts in a situation, the arbitrator will come to the right – and fairest – result.
The problem is that often one side’s idea of what is fair is not the same as another side. Arbitrators will look to the parties to support their impression of what is right and fair, using the evidence to find the result they’re looking for.
The September 2015 decision Sault Area Hospital v Ontario Nurses Association is a case in point. Faced with nurses and other healthcare workers who were unable or unwilling to have flu shots, the employers decided those employees should wear surgical masks all day, every work day, for the five or six month Canadian flu season. It was in force whenever the nurses were in any patient area. The rule has become known as VOM – “Vaccinate or Mask”. It applies whether or not the healthcare worker has any flu symptoms.
The Hospitals tendered scientific evidence regarding the VOM policy. The problem was that, when the Arbitrator looked carefully at what was said by the many experts for both sides, it didn’t seem as convincing as the employer intended.
When the weight of the evidence was a problem, the employers said the arbitrator should show some special deference to the employers’ experts. The arbitrator rejected that idea. He said that his role was to use what was helpful in the evidence and assign it the weight it deserved. He cited longstanding case law that said decision-makers can’t just rely, on faith, in everything an expert says.
When looked at carefully, it became clear that the evidence was pretty thin that workers without symptoms posed a risk to patients. Looking more closely, there was even less persuasive evidence that putting a mask on a healthcare worker who had no symptoms would stop the spread of disease.
The real reason that was driving the decision to offer this “choice” seemed to be that the choice itself, given the inconvenience, unpleasantness and discomfort, would drive people to get a flu shot.
In the end, the arbitrator said the rule was not reasonable and overturned it.
It’s not enough to be well-meaning when arriving at arbitration, or to think that, subjectively, no one could disagree with the principles that support your position. It is true that both of those can be an asset. The reality is that we want arbitrators who will look at the quality of the evidence and the people presenting it. If those elements are not there, presented in an organized way, and if it doesn’t stand up to cross-examination, you’re in trouble.
A party that relies on general principles – for example, an employer that says “this is a safety issue” in the expectation that it will trump all other evidence – is taking a significant risk that an arbitrator doing her or his job will take a different view of the case.