On September 9th, a British Columbia arbitrator held that a Union’s reference to a “secret recording” in an opening statement did not bring the implied undertaking to an end. The employer, he therefore concluded, breached the undertaking by attempting to investigate the making of the recording after the Union made its opening statement and before the recording was adduced in evidence. The arbitrator referred to the leading cases, which establish that the undertaking comes to an end when records are adduced in evidence. He also held that, in arbitration (which lacks pleadings), it is good policy to sustain the undertaking beyond opening statements because doing so encourages parties to make fulsome opening statements.
Fortis BC Energy Inc and IBEW, Local 213 (9 September 2016, Peckles).