AD HOC:

INTERIM AWARD

I – ISSUE

This arbitration concerns a challenge to the Company’s policy to prevent workplace alcohol and drug problems. The policy, implemented effective March 15, 1997 and contained in a comprehensive booklet seventy pages in length, deals with a number of issues, including the use of alcohol and drug testing. The Union, supported by the intervenors, alleges that the policy is contrary to the collective agreement and in violation of the Canadian Human Rights Act R.S.C. 1985 c H-6. Argument of the case has proceeded over a number of days, with each party filing extensive briefs with supporting documents and authorities. Among the documents filed on both sides are statements of expert witnesses, the substance of which has not yet been examined. For the time being the parties are agreed that the need for viva voce evidence, and the specific witnesses to be called, will be better addressed following argumentation of their respective positions and the clarification of issues in dispute that will result. This interim award relates to a dispute between the parties, however, as to one aspect of the process involving the filing of reports by expert witnesses, and in particular certain costs of translation.

The Company has filed, among other things, an expert witness report prepared by Dr. Jean-Pierre Chiasson. The report involves a sixty-seven page opinion, supported by monographs concerning the use, abuse and properties of cocaine, marijuana and alcohol. The report is highly specialized, dealing with subjects of toxicology, social psychology and addiction research. It is entirely submitted in the French language. The Union and intervenors, whose counsel and expert witnesses are not fluently bilingual, seek a ruling from the Arbitrator to the effect that the report of Dr. Chiasson should be translated into English, and that the cost of translation should be paid for by the Arbitrator, and charged to the parties equally as an expense of the arbitration. The Company maintains that the other parties should be solely responsible for obtaining their own translations of Dr. Chiasson’s report as part of their own costs incidental to the arbitration. This interim award is, therefore, for the sole purpose of ruling upon that disagreement.

The Arbitrator is in receipt of extensive written submissions and supporting authorities filed by both CN and the CAW. While the position initially advanced by the Union was that the Company should fully bear the cost of translating the report of Dr. Chiasson into English, upon a review of the authorities and in making its written submission it modified its position to assert that the cost of translation should be shared equally by the parties, as an expense of the Arbitrator. Its counsel submits that the pertinent provisions of the Canada Labour Code R.S.C. 1985, c. L-2 and the collective agreement support that conclusion, as does the general jurisprudence concerning the power of arbitrators, and at least one specific arbitration award relating to costs of translation.

II – CAW’S ARGUMENT

Counsel firstly draws to the Arbitrator attention the provisions of rule 28.8 of the collective agreement which deal with the cost of arbitration and provide as follows:

28.8 Each party shall respectively bear any expenses each has incurred in the presentation of the case to the Arbitrator but any general or common expenses, including the remuneration and expenses of the Arbitrator, shall be divided equally.

Counsel further refers the Arbitrator to certain of the provisions of the Canada Labour Code, and in particular sections 16 and 60, which govern the powers of the Canada Labour Relations Board and of the arbitrator. Those provisions read, in part, as follows:

16. Powers of Board … The Board has, in relation to any proceeding before it, the power

(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Board deems requisite to the full investigation and consideration of any matter within jurisdiction that is before the Board in the proceeding:

(b) to administer oaths and solemn affirmations;

(c) to receive and accept such evidence and information on oath, affidavit or otherwise as the Board in its discretion sees fit, whether admissible in a court of law or not;

60 (1) Powers of arbitrator, … An arbitrator or arbitration board has

(a) in relation to any proceeding before the arbitrator or arbitration board, the powers conferred on the Board, in relation to any proceeding before the Board by paragraphs 16(a), (b) and (c); and

(b) power to determine any question as to whether a matter referred to the arbitrator or arbitration board is arbitrable.

…

Counsel for the Union submits that under the foregoing provisions the Arbitrator has the authority and responsibility to require that relevant documents be produced, and that such production be consistent with the purpose of arbitration, which is to facilitate the expeditious, efficient and cost effective resolution of disputes, while respecting principles of natural justice.

With respect to the costs of translation in the courts, counsel refers the Arbitrator to a decision of the Ontario Supreme Court, High Court of Justice, rendered by Smith J. in Trumble v. Corporation of the Town of Kapuskasing (1986), 14 C.P.C. (2nd) 66. In that case the Court ruled that two affidavits filed in litigation, which were written in French, should be translated into English, and that the cost of translation should be borne by the Court. The learned judge resolved the issue, in substantial part, on the language of Section 136(4)(g)(ii) of the Courts of Justice Act, S.O. 1984 c.11 which provided:

… on the request of a party or counsel who speaks the English or French language, but not both, the Court shall provide … translation of documents in the other language under clause … (a).

Counsel notes that the decision of Smith J. was endorsed by the Ontario Court of Appeal (1988), 37 C.P.C. (2d) 313.

Counsel stresses the discretion of a board of arbitration to make such directions as are necessary to the conduct of a fair hearing, in keeping with the principles of natural justice, and the general principle that a board of arbitration is master of its own procedure. He refers the Arbitrator to the following awards: Re Ottawa General Hospital and Ontario Public Service Employees Union (1992), 28 L.A.C. (4th) 20 (Fraser); Re Broadway Hospital Group Inc. and Canadian Brotherhood of Railway, Transport & General Workers, Local 272 (1990), 14 L.A.C. (4th) 224 (Teskey); Re Corporation of the City of Peterborough and Peterborough Professional Fire Fighters Association, Local 519 (1978), 19 L.A.C. (2d) 264 (H.D. Brown); Re Board of School Trustees, School District No. 65 (Cowichan) and Cowichan District Teachers Association (1996), 54 L.A.C. (4th) 378 (Dorsey); Re West Park Hospital and Ontario Nurses Association (1993), 37 L.A.C. (4th) 160 (Knopf).

With respect to the issue of bearing costs of translation counsel for the Union relies principally on the relatively recent award of Arbitrator D. Lavery in Re Supply & Services Union and Office & Professional Employees Union, Local 225 (1997), 60 L.A.C. (4th) 423. In that award Arbitrator Lavery was compelled to deal with a motion of the employer concerning the payment of simultaneous translation services. The grievor wished to avail himself of his right to testify in French. As the Company’s representative was unilingually English, it was clear that simultaneous translation services, or the services of a sequential interpreter, would be needed. The employer maintained that in the circumstances the cost of such translation should be assumed by the Arbitrator and charged equally to the parties as an expense of the board. The union resisted the employer’s motion, arguing that it should not have to pay any part of translation services required solely by the employer. In the circumstances, for reasons examined more fully below, Arbitrator Lavery ruled that the authority of a board of arbitration to establish its procedures includes the discretion to determine that simultaneous translation services should be retained. He further concluded that it was appropriate for the arbitrator to assume the costs of translation as part of the expenses incurred in relation to the proceedings, and to charge the costs equally to the parties.

III – CN’S ARGUMENT

Counsel for the Company submits that there is no basis in law for requiring it to translate the report of an expert witness made in the French Language in an arbitration conducted under the Canada Labour Code. Its written submission, made entirely in French, raises a number of grounds of consideration. Firstly, counsel submits that there is no right of translation which the Union can claim under article 14 of the Canadian Charter of Rights and Freedoms. It reads as follows:

14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.

Counsel notes court decisions which have found that a body corporate, as distinguished from a natural person, cannot invoke the protections of article 14 of the Charter. He also submits that the Charter is, in any event, not controlling for the purposes of a consensual private arbitration under the Canada Labour Code. That, he submits, is supported by the decisions of the Supreme Court of Canada in Retail, Wholesale & Department Store Union, Local 580 v. Dolphin Delivery Ltd. (1986), 2 S.C.R. 573; McKinney v. University of Guelph (1993), S.C.R. 230; Harrison v. University of British Columbia (1993), S.C.R. 451; and Douglas/Kwantlen Faculty Association v. Douglas College (1993), S.C.R. 570.

Counsel also notes the decision of the Ontario Court of Appeal in Roy v. Hackett (1987), 45 D.L.R. (4th) 415. That decision found that translation must be provided in the proceedings of an arbitration established under the Code where one of the parties was itself a federal undertaking, in that case the Royal Canadian Mint. For the Court, Lacourcière J. concluded that the arbitration proceedings, involving as they did a federal government entity, were subject to the protections of the Charter, which included the application of section 14. In coming to that conclusion the learned judge reasoned, in part, as follows at p. 420:

III Application of the Charter to the arbitration board

In its supplementary memorandum, the appellant argues that the Charter cannot apply to an arbitration board established by virtue of a collective agreement because of s. 32 of the Charter, as interpreted in the decision in Retail, wholesale & Department Store Union, Loc. 580 v. Dolphin Delivery Ltd. (1986), 33 D.L.R. (4th) 174 [1986] 2 S.C.R. 573, [1987] 1 W.W.E. 577.

Section 32 provides that:

32 (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.

The appellant argues that a dispute resolved by an arbitration board established under a voluntary collective agreement is the result of a purely contractual arrangement and does not include any government action in the form of a law or regulation. In my opinion, this argument has no merit: I would agree with the appellant if it were simply a matter of a private dispute between two non-government parties.

(emphasis added)

With respect to the subsidiary argument that section 14 of the Charter can have no application to corporate bodies counsel for the Company refers the Arbitrator to 116845 Canada Inc. v. Régis de Permis d’Alcool du Québec [1991], R.J.Q. 1655, a decision of the Superior Court of Quebec to the effect that only individuals, and not corporate bodies, are entitled to assert rights to the service of an interpreter under section 14 of the Charter. Counsel further cites a decision of the New Brunswick Court of Queen’s Bench to the effect that the protections of section 14 extend only to witnesses and parties, and not to lawyers: Cormier v. Fournier [1986] 29 D.L.R. (4th) 675.

The Company also submits that the rules of natural justice do not extend to compel it to bear the costs of translation of an expert witness’s report in an arbitration proceeding under the Code. Counsel notes two decisions of the Supreme Court of Canada which confirm that the right to an interpreter during the course of legal proceedings is not of itself a linguistic right which can be asserted under the Charter, but rather an expression of the rules of natural justice which require that a person compelled to defend himself or herself in proceedings must be able to understand what is happening the course of a hearing, and to be understood by others involved in the process: Duncan Cross McDonald v. City of Montreal (1986), 1 S.C.R. 460; Société des Acadiens du Nouveau-Brunswick Inc. et l’Association des conseillers scolaires francophones du Nouveau-Brunswick v. Association of Parents for Fairness in Education, Grand Falls District 50 Branch (1986), 1 S.C.R. 549.

Counsel for the Company submits that the jurisprudence does not support the conclusion that in all instances where an individual is entitled to the services of an interpreter, even in court proceedings, the court should necessarily bear the cost of interpretation. In this regard he cites Labrie v. la Machinerie Kraft du Québec Inc. (1984) S.C. 263 and Marshall v. Gorge Vale Golf Club (1987) 39 D.L.R. (4th) 472 (B.C.S.C.T.). In the latter case Ruttan J. of the British Columbia Supreme Court ruled that while a deaf plaintiff was entitled to the assistance of transcription during the course of a civil trial, the cost of transcription was not to be borne by the Ministry of the Attorney-General. In the result, while the right to transcription was upheld, the cost was to be borne by the individual himself. Counsel contrasts that treatment of litigants with the contrary provisions of article 36 of the Charte des droits et libertés de la personne du Québec L.R.Q. c. C-12, which provides that in criminal proceedings in Quebec all accused individuals have the right to the services of an interpreter, without cost. (R. v. Tran [1994] 2 S.C.R. 951)

Counsel for the Company submits that rule 28.8 of the collective agreement contemplates that the cost of translation of any document tendered in evidence must fall to the party which needs the translation, as part of its own expenses of the proceedings. He argues that such a cost would fall squarely within the phrase “any expenses each has incurred in the presentation of the case to the arbitrator”, and that such costs are to be contrasted with “general or common expenses” separately referred to within the rule, which are to be divided equally.

Counsel for the Company further refers the Arbitrator to the rules in respect of translation costs adopted by the Canadian Railway Office of Arbitration (CROA), of which both the Company and the Union are members, although the instant grievance has not been processed through the CROA, by agreement. The policy of the CROA, described in a letter to all members issued on March 23, 1993 by the Administrative Committee of the Office, reads as follows:

The word "language" refers only to Canada's two official languages.

It was agreed by the Administrative Committee of the Canadian Railway Office of Arbitration that most members are national is scope. They have, therefore, the resources to deal with arbitration hearings in either and/or both languages. As a result, it was decided that it would be unnecessary to incur the cost of obtaining professional translation services.

While the language of an arbitration hearing is the choice of the two parties to the dispute, there are some rules which the Administrative Committee of the Canadian Railway Office of Arbitration has agreed are to be followed.

When submitting a request for arbitration, the request and accompanying Statement of Issue (when such is required pursuant to Clause 4 of the memorandum of agreement) are to be submitted in the language in which the parties have mutually agreed the arbitration will be heard. The award will normally be issued in that language.

Should the agreed upon language be changed, by mutual consent, after submission of the request to this Office, a translation of the previous request is to be provided to the Office prior to the hearing.

When one party anticipates that a potential witness, or witnesses, will give evidence on its behalf in the other language, that party will notify the other as soon as possible after the hearing date is set, but no later than 48 hours prior to the hearing. For example, if the dispute is to be heard in French and a witness will testify in English, the party calling the witness will so inform the other party.

Inasmuch as the arbitrator sits as a neutral third party at an arbitration hearing, and is not a party to the dispute, it is not appropriate for either party to expect him, or her, to provide translation services.

In the result, the policy of the Canadian Railway Office of Arbitration is that while notice of evidence to be given in the other of the two official languages must be given, it is the party which needs the translation services which is expected to arrange for translation and bear its cost. Counsel for the Company questions on what basis the proceedings in this arbitration, although it is not under the auspices of the CROA, should be subject to any different rule, given that the parties involved are themselves members of the CROA and in its proceedings are bound by a rule which recognizes that the consumer and beneficiary of translation services should be required to pay for them, and that any party which avails itself of the right to adduce evidence in either of Canada’s official languages should not be put to any added expense in respect of the exercise of that right.

Counsel for the employer submits that the policy of the CROA, and the authorities cited above, are entirely in keeping with section 63 of the Canada Labour Code, which governs the obligations of the parties with respect to costs incurred with respect to arbitration proceedings. That section reads as follows:

63. Where a difference described in subsection 57(1) is submitted by the parties to an arbitrator or arbitration board, the costs, fees and expenses with respect to the arbitration proceedings shall, unless the collective agreement otherwise provides or the parties otherwise agree, be borne as follows:

(a) each party shall bear its own costs and shall pay the fees and expenses of any member of the arbitration board who is nominated by it; and

(b) the fees and expenses of an arbitrator or arbitration board chairman, whether the arbitrator or chairman is selected by the parties or their nominees or appointed by the Minister under this Part, shall be borne equally by the parties.

Counsel for the Company submits that the foregoing provision contemplates that the parties are responsible for their “own costs”. He argues that for the Union, that would include such costs as might be incurred to translate the report of Dr. Chiasson from French into English, for the assistance of the Union’s own expert witnesses who might wish to take issue with its contents. Counsel further emphasises that, unlike the courts, a board of arbitration has no inherent jurisdiction to make orders or directions as to the payment of costs, be they the costs of legal counsel, expert witnesses, translators or any other. In this regard reference is made to Re City of Dawson Creek and Canadian Union of Public Employees, Local 2403 (1987), 28 L.A.C. (3d) 372 (Dorsey) and Canada Post Corporation and Canadian Union of Postal Workers (grievance of Gerald Thomas Ryan), an unreported award of Arbitrator Richard B. Bird dated May 10, 1989. Finally, and most directly, the Company relies upon the decision of Arbitrator Claude H. Foisy, in Le Syndicat des débardeurs S.C.F.P., section locale 375 et l’Association des employeurs maritimes, an unreported award dated December 18, 1992. In that case the union sought a direction from the arbitrator, in the context of an arbitration which was proceeding in the French language, to the effect that the company should pay the entire cost of translation of the testimony of a witness who was to testify in English, or alternatively that the cost of simultaneous translation should be shared equally by the parties. The position of the employer was that the arbitrator had no jurisdiction to make an order with respect to the payment of costs, including costs of translation. After an extensive review of the authorities, including many of the cases cited above, Arbitrator Foisy ruled that he did not have jurisdiction to make any order with respect to the payment of the costs of simultaneous translation, and that the party which required such services must pay for them as part of its own costs of the arbitration, in keeping with section 63 of the Canada Labour Code.

IV – DECISION

I turn to consider the merits of the dispute. In doing so I deem it important to emphasize the limited nature of the ruling which I am called upon to make. I am not, at least as yet, called upon to determine whether simultaneous translation services will be needed during the viva voce testimony of a witness in these proceedings. The difference between the parties relates narrowly to the cost of translating a professional medical report for the purposes of these proceedings, and upon which the author may be subject to further examination in chief and cross-examination.

The principal arbitration authority relied upon by the Union in support of its position that the translation of the report should be done at the Arbitrator’s expense, to be billed thereafter to the parties as a disbursement shared equally, is the decision of Arbitrator D. Lavery in Re Supply & Services Union and Office & Professional Employees Union, Local 225 (1997) 60 L.A.C. (4th) 423. That case concerned who should bear the cost of simultaneous translation where the grievor wished to testify in French, before a bilingual arbitrator, in what were otherwise English language proceedings in which the employer’s representative was unilingually English. The union resisted being required to pay half the cost of the simultaneous translation service which would be required by the employer when the grievor exercised his right to give evidence in French.

Arbitrator Lavery sustained the position of the employer that the cost of simultaneous translation should be borne equally by the parties, as an expense incurred by the board of arbitration itself. At pp 429-31 he reasoned and concluded as follows:

(The right to simultaneous translation)

A judicial or quasi-judicial tribunal has the power to establish its procedure but such procedure must not breach the rules of natural justice. In my view, the right of a non-bilingual party to simultaneous translation of the testimony of a witness of the other party testifying in the French language flows from the principles of natural justice. Those principles require that a party to the proceedings, i.e., in this case, the employer as represented by its National President who does not speak French, understand the evidence adduced by the other party so as to fully appreciate and weigh the case made against it. Simultaneous translation is required, in the present circumstances, to allow the employer to comprehend the case it has to meet and the right to such translation is part of its right to a full and fair hearing.

The procedure established by the arbitrator must be such as to allow each party a full and fair hearing and, in this case, the question of simultaneous translation is such a question of procedure inasmuch as it relates to the manner in which the evidence is presented and transmitted or received by the other party. If it is not received by the employer in the English language through the means of a professional translator, then the procedure would be lacking.

As argued by Mr. Wyllie, this is not a situation coming within the discretion of the arbitrator where, for example, a party asks for the presence of a court reporter and the transcription of the proceedings as a means to help it to better present its case. Here the attendance of a professional translator is not merely a means to help the Employer to better present its case but more basically a means to allow it to understand the case it has to meet. The presence of a court reporter and the fashioning of a record is in no way linked to any principles of natural justice as opposed to the right of a party to understand the testimony of the party’s witnesses which goes to the heart of the concept of a full and fair hearing.

In summary, the grievor certainly has the right to testify in French but, by way of corollary, the employer cannot be deprived of the right to simultaneous translation of that testimony. This is so especially in the circumstances of this case where the grievor’s testimony on the content of the course he took and the academic material handed during the course will be at the heart of the matter.

(The costs of simultaneous translation)

This is a consensual grievance arbitration and, therefore, the power of the arbitrator to order that the costs of simultaneous translation be borne equally by both parties must be found in the collective agreement. On this aspect, I agree with Mr. Wyllie’s representation to the effect that the Union’s position with respect to the interpretation of articles 11.05 and 11.07 is too narrow. It is generally understood, without specific reference in articles 11.05 and 11.07, that the costs of a hearing room rental, the cost of travel and accommodation incurred by the Arbitrator, etc., are appropriate expenses and are charged back to the parties in equal shares. Similarly, where arrangements for simultaneous translation must be made by an arbitrator to ensure a fair hearing, the expense thereof can legitimately be charged back to the parties as an expense of the arbitrator under article 11.07.

In addition to the above, one may refer to the Concise Oxford Dictionary of Current English, 6th ed. (Oxford: Clarendon Press), which defines the word “expense” in the following fashion:

(…) 2. Amount of money spent; amount, spent in executing commission.

My “commission” or the mandate given to me by the parties is to hear the grievance and issue a final decision binding both parties (article 11.04 of the collective agreement and Section 45 of the O.L.R.A.). Any decision that I may render on the merit of the grievance would not be binding on the parties if the procedure I adopted was tainted by breaches to the rules of natural justice such as would be a procedure which did not allow for the simultaneous translation of testimonies presented in the French language as part of a case made against a non-bilingual party. Since the parties have accepted in their collective agreement to pay each one-half of the arbitrator’s fees and expenses incurred in the fulfilment of his mandate, this must be understood to mean that they have accepted to pay each one-half of such expenses as are necessary to provide for a setting, i.e., a hearing room where the parties may present their evidence, and any other expenses incurred by the Arbitrator to ensure a full and fair hearing to both parties. This, in my view, includes expenses related to the simultaneous translation of testimonies.

Aside from the above, there are also policy reasons to direct that the costs of simultaneous translation be borne equally by the parties. The grievance and arbitration process was conceived as an alternate resolution mechanism of conflicts arising during he life of a collective agreement and as a quid pro quo for the interdiction of strikes during the life of said agreement. It is a joint process whose integrity and value both parties have an interest to uphold. The integrity of that process would be undermined if expenses incurred by an arbitrator which are necessary to ensure a full and fair hearing of each party’s position were to be charged only to one party. As pointed out by Mr. Wyllie, in the present case, it happens to be the President of the employer who is unilingual English and who cannot understand evidence given in French by the grievor. In another case, it might be a unilingual English grievor who is unable to understand testimony given in French by an officer of the employer. If the integrity of the arbitration process is to be preserved, the burden of paying for simultaneous translation should not be left to the party that cannot understand testimony during the hearing. That burden must fall equally on the parties.

For all the above reasons, I conclude that the cost of simultaneous translation will be charged equally to the parties.

The award of Arbitrator Claude H. Foisy in Le Syndicat des débardeurs S.C.F.P. stands in contrast to the decision of Arbitrator Lavery. In that case the general language of the arbitration hearing was French. The employer nevertheless gave notice that the evidence in chief of one of its witnesses would be given in English. The union brought a motion before the arbitrator to direct that the employer bear the entire cost of simultaneous translation to assist the union’s representatives to understand the testimony of the employer’s witness. Alternatively, the union argued that the cost of simultaneous translation should be divided equally between the parties. The employer, however, argued that the arbitrator had no jurisdiction to make directions tantamount to the payment of costs which, it submitted, must be borne by the parties themselves.

Arbitrator Foisy’s award involves a far more extensive examination of arbitral and judicial precedents than is found in the award of Arbitrator Lavery, where the issue seems to have been argued more informally. Firstly, Arbitrator Foisy rejected the argument of the union that a right to simultaneous translation could be founded in Section 14 of the Canadian Charter of Rights and Freedoms. Reasoning from article 32 of the Charter, Arbitrator Foisy concluded that the Charter’s protections extend only to governmental action, as confirmed in a number of court decisions, including Wholesale, Retail & Department Store Union, Local 580 and Dolphin Delivery Ltd. [1986] 2 S.C.R. 573; McKinney v. University of Guelph [1993] S.C.R. 230; Harrison v. University of British Columbia [1993] S.C.R. 451 and the Douglas/Kwantlen Faculty Association case cited above. Arbitrator Foisy concluded that the parties before him were entirely private entities in respect of whom the Charter could have no application, so that article 14 was not controlling in the circumstances of the dispute before him.

Arbitrator Foisy next considered whether a right to simultaneous translation services could be characterized as an obligation of the tribunal arising from the application of the rules of natural justice. In approaching that issue Arbitrator Foisy made the following general comments a p 6, which I take the liberty to translate:

A body corporate, like an individual, has the right to the benefit of the rules of natural justice, and in particular the right to be heard. The issue which concerns us is the linguistic ability of a party, in this case a body corporate and/or its lawyer, who is not a party, to understand what is transpiring before the Arbitrator and, insofar as the lawyer is concerned, to be able to act in the language of his choice. In my view the determination as to whether a person is heard or not must be appreciated on the basis of the particular facts of each case (it could, for example, happen that a body corporate, being party to a procedure, whose head office is in a region of Quebec which is unilingually francophone is possessed only of officers and employees who are unilingual francophones, unable to understand an anglophone expert witness. The denial of access to an interpreter could, in such circumstances be tantamount to a denial of natural justice.) It could also be inequitable in certain circumstances to deny to lawyers for such parties the assistance of an interpreter. The same example could be reversed if a francophone witness went to testify in Alberta, in a region where nothing is transacted in French and where a body corporate, for example a small company whose officers neither speak French nor have any contact with francophones would be denied natural justice.

Arbitrator Foisy distinguished the issue of the right of a party to have an interpreter in keeping with principles of natural justice and the separate question of who should incur the cost of interpretation. He went on to consider the jurisdictional issue, namely whether he had the authority under the Canada Labour Code to make a direction requiring one party to pay all or part of the costs incurred by another party in the course of the arbitration proceedings. In approaching that issue he was influenced by prior awards of Arbitrators Bird and Dorsey. In Canada Post Corporation v. Canadian Union of Postal Workers, an apparently unreported award dated May 10, 1989, Arbitrator Bird declined to direct the corporation to defray the costs incurred by the employees in relation to an expert witness. In considering the present section 63 of the Canada Labour Code Arbitrator Bird considered a prior award by Arbitrator Blouin and wrote, in part at pp 22-24:

… I note that the costs, fees and expenses referred to in section 157.2(a) are “with respect to the arbitration proceedings” which are analogous to civil litigation costs including legal fees and expenses and expert witness fees and expenses, among other things.

…

… It appears that his award stands for the proposition, among others, that an arbitrator acting under the collective agreement between the parties to this arbitration does not have authority to make an order for payment of litigation costs. The arbitrator made no mention of section 157.2(a) but his decision is consistent with my understanding of that provision. …

… Having regard to the circumstances, I conclude that arbitrator Blouin’s decision was accepted by both parties as correct (and consistent with their being no “otherwise” provision in the collective agreement) so far as the arbitrator’s authority (jurisdiction) to award costs, fees and expenses (litigation costs) incurred by the parties is concerned. Putting it shortly, the Union tried to get litigation costs from arbitrator Blouin, but he refused to award them because he did not think he had authority to do so. I am not inclined, in view of the subsequent history of the matter and the lack of specific contracting-out language in the collective agreement, to contradict arbitrator Blouin. …

Arbitrator Dorsey’s award, Re City of Dawson Creek and Canadian Union of Public Employees, Local 2403 (1987), 28 L.A.C. (3d) 372 involved a request that the arbitrator direct the union to pay to the employer’s costs incurred in relation to an expert witness, based on an application of article 10 of the British Columbia Evidence Act. Arbitrator Dorsey concluded that he did not have that jurisdiction under the British Columbia Labour Code, and commented as follows, at pp. 382-385:

There is no inherent jurisdiction to award costs in statutory or labour arbitration boards: see Re Canadian Union of Public Employees and Labour Relations Board (Nova Scotia) et al (1983), I D.L.R. (4th) 1 at p. 10, [1983] 2 S.C.R. 311 at p. 323, 83 C.L.L.C. par. 14,069, and Re Ontario Public Service Employees Union and Ontario Public Service Staff Union (1984), 16 L.A.C. (3d) 273 (Swan). For reasons that have been canvassed elsewhere, it is not the practice of labour relations boards with remedial authority broad enough to include awarding costs to do so: e.g., Delta Optimist et al and Vancouver-New-Westminster Newspaper Guild, Local 115 [1980] 2 can. L.R.B.R. 227 (B.C.) t pp. 249-50; Bank & Finance Workers’ Union, Local 4 of Service, Office & Retail Workers Union of Canada v. National Bank of Canada (1984), 84 C.L.L.C. par. 16,038 (Can. L.R.B.).

Section 99 of the Labour Code does not authorize the awarding of costs. Quite the contrary, it directs that, in the absence of a provision included in the collective agreement to the contrary, “each party … shall bear its own fees, expenses and costs”. The tariff set out in the schedule to the Commercial Arbitration Act, 1986 (B.C., c. 3), is expressly said not to apply: s. 99(4) [repealed 1986, c. 3, s. 47].

The intent of the Labour Code is that arbitrators are not to have the power to award that one party’s expenses and costs are to be paid by another party unless the parties have expressly given their arbitrators this power in their collective agreement as part of their dispute resolution procedure or it is in the provision prescribed for them by the Minister. I find ss. 99(1)(a) and (4) of the Labour Code to be specific legislation that is intended to and does implicitly and necessarily preclude an arbitration board from exercising the power to award costs under s. 10(6) of the Evidence Act.

…

… In the absence of more express language, this fact does not lead to the conclusion that s. 10(6) of the Evidence Act is an intended exception to the statutory direction that labour arbitrators do not have the authority to award costs unless they derive it from agreement of the parties or ministerial direction under ss. 93 and 94 of the Labour Code

Arbitrator Foisy went on to find that the reasoning of Arbitrator Dorsey in respect of the British Columbia legislation applies equally as regards article 63 of the Canada Labour Code, and in particular sub-paragraph (a) which reads:

(a) Each party shall bear its own costs and shall pay the fees and expenses of any member of the arbitration board who is nominated by it.

Arbitrator Foisy further found that, to the extent that arbitration is an option, and not a mandatory requirement under the Canada Labour Code, he was not constituted as a federal tribunal bound by the provisions of the Official Languages Act, R.S.C. 1985 c. O-3.01, which places upon federal tribunals certain obligations in respect of providing translation services. In the result, based primarily on the jurisdictional limits placed upon an arbitrator by the Canada Labour Code, Arbitrator Foisy, while acknowledging that the union had the right to utilize an interpreter as a matter of natural justice, ruled that it was nevertheless compelled to absorb the cost of the interpreter as part of its own costs of the hearing. He found that he had no jurisdiction to direct the payment or sharing of that cost by or among any particular party or parties.

Upon a review of the above authorities, the arbitrator is compelled to prefer the analysis and jurisdictional reasoning of Arbitrator Foisy. It is not clear that the Foisy award was pleaded before Arbitrator Lavery in the Re Supply & Services Union case. In any event, that dispute was arbitrated under the provisions of the Ontario Labour Relations Act, S.O. 1995 c.1. Nor do I reject the notion that issues of natural justice may extend to requiring that the tribunal should pay the costs of translation, to be shared equally by the parties as a common expense of the board. In my view there may well be certain circumstances where a particular witness or participant in arbitration proceedings simply cannot afford the cost of an interpreter and where, but for the presence of such an interpreter, natural justice could not be done. In that circumstance it may well be incumbent upon the tribunal to provide the interpreter or translation services, as a common cost of the tribunal to be borne equally by the parties, as to do otherwise would be tantamount to a denial of natural justice. It may also be appropriate for an arbitrator to bear the cost of translation where parties, representatives of parties or legal counsel on both sides are unable to understand the testimony of one or more witnesses given in one of the official languages or any other language, or where it is the tribunal itself that needs the assistance of a translator to understand certain testimony. In those circumstances the costs incurred could fairly be characterized as “common expenses” within the meaning of Rule 18.8 of the instant collective agreement, or the “expenses of an arbitrator” as contemplated within section 63 of the Canada Labour Code.

Different considerations arise, however, where the issue does not involve an ability to pay for translation services or where there is no common need for the services of an interpreter. In those circumstances the law appears to be that it is the party that has need of the services which should bear their cost, just as they would bear the cost of legal counsel or an expert witness. In that regard costs of an interpreter or of a translator are no different than other costs incurred in the presentation of an arbitration, and must be treated as forming part of the parties “own costs” within the meaning of section 63(a) of the Canada Labour Code.

I am also satisfied that such costs must fairly be characterized as “expenses each has incurred in the presentation of the case to the arbitrator” within the meaning of rule 28.8 of the parties’ own collective agreement. In construing the intention of the collective agreement, apart from the general jurisprudence on the limitation of an arbitrator’s ability to order the payment of costs. It is instructive to consider the general practice within the railway industry, and in particular within the Canadian Railway Office of Arbitration, arguably one of the most bilingual private arbitration forums in Canada. There parties, including the parties to this dispute, are normally expected to bear their own costs of translation or interpretation in respect of documents or oral evidence tendered in either official language. It would, I think, require clear and unequivocal language to demonstrate that the parties to the instant collective agreement intended some different understanding as to translation costs. No such language has been put before me. Given the statute law and jurisprudence cited, absent such language the parties should be taken to have intended their own relations to be governed accordingly.

As stressed above, the instant dispute involves the translation of a professional report from French to English for the facility of one of the parties. As regards that particular document, I am satisfied that its translation must be viewed as a reasonable cost of the proceedings to be borne by the party which needs it to be translated. For the reasons well reflected in the jurisprudence canvassed above, I am satisfied that I am without jurisdiction to order the payment of such costs.

For all of the foregoing reasons the motion of the union must be denied. Further, given that these proceedings continue to be conducted in English, the parties are directed to give reasonable notice to all other parties should they intend to call viva voce evidence from a witness whose testimony will be given in French, or in any other language other than English.

Dated at Toronto, March 1, 1999 (SIGNED) MICHEL G. PICHER

ARBITRATOR