Neutrality and Facebook: Something to Consider?

Hon. Dennis M. Sweeney (Ret.) is a JAMS neutral who handles a variety of disputes including complex, multi-party commercial and business, medical malpractice, land condemnation and personal injury. He can be reached at dsweeney@jamsadr.com.

Like many other professionals, arbitrators and mediators are using social media sites to promote their services and communicate with their associates and the legal community. However for neutrals there are pitfalls in this new media that are illustrated by a recent case from the Federal Court of Canada.

The case arose out of during the most recent labor dispute involving Canada’s mail carriers. Under legislation passed by Parliament, disputes between Canada Post and its labor union must be decided by a “final offer” arbitrator appointed by the Labor Minister from a list submitted by both sides. The arbitrator then chooses between the final offers and that choice becomes the binding agreement

In this most recent case, the Labor Minister picked a lawyer who was on the list of acceptable arbitrators submitted by the union. After the selection, the union asked the arbitrator to recuse himself because years before he had represented the postal service in a dispute with the union and had also been active in the governing Conservative Party’s activities in Quebec. The union argued this showed that he would be biased in favor of the postal service’s position.

The arbitrator declined to recuse himself asserting that the claims were not grounds for disqualification since his representation of the postal service was years in the past and he had ceased all Conservative Party involvement.

On appeal to the Federal Court, the union bolstered its case by pointing out that the arbitrator’s Facebook page contained links to Conservative Party groups and that among the arbitrator’s “friends” on the site were both the Labor Minister who appointed him as well as the minister who was responsible for overseeing Canada Post. Shortly after, the arbitrator removed the links from his page.

The court ordered the arbitrator to recuse himself and instructed the Labor Minister to appoint a new arbitrator. The court relied on the arbitrator’s Facebook postings to conclude that the concerns about the arbitrator’s possible bias had merit, despite the passage of time since his representation of the postal service and his active involvement in Conservative Party matters. The court wrote that “a reasonable, sensible person” could conclude that bias might still be present. It was not persuaded that the arbitrator had effectively cured the matter by deleting the offending Facebook references after the issue was raised.

If this case is a harbinger of things to come, neutrals will have to consider how much and how freely they want to participate in social media. They will also have to consider what the consequences are when seemingly innocuous postings are made or “friending” someone who may be no more than a casual acquaintance or contact. These concerns would apply not only to sites such as Facebook and LinkedIn, but also to Twitter, YouTube and the ever growing group of social media sites.

The case is In the Matter of Union of Postal Workers v. Canada Post Corporation et al, Case T-831-12 (2012 CF 975)  (August 8, 2012).