2012 SKCA 131 Date:, 2012 SKCA 131

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 131 Date: 2012-12-31 Between: Docket: CACV 2181 United Food and Commercial Workers, Local 1400 (Applicant) Appellant Respondent on Cross-Appeal - and - Wal-Mart Canada Corp., operating as Wal-Mart and Wal-Mart Canada (Respondents) Respondents Appellants on Cross-Appeal - and – Gordon Button (Respondent) Respondent - and –

Saskatchewan Labour Relations Board (Respondent) Respondent Coram: Cameron, Gerwing & Jackson JJ.A. Counsel: Drew Plaxton for the appellant, United Food and Commercial Workers, Local 1400 Catherine Sloan for the respondent, Wal-Mart Canada Corp., Patrick N. McDonald, Q.C. for Saskatchewan Labour Relations Board Gordon Button appearing in person Appeal: From: 2011 SKQB 358 Heard: March 28, 2012 Disposition: Appeal dismissed Cross-appeal allowed Written Reasons: December 31, 2012

By: The Honourable Madam Justice Jackson In Concurrence: The Honourable Mr. Justice Cameron The Honourable Madam Justice Gerwing Jackson J.A. I. Introduction [ 1 ] No labour relations negotiations have been more intensely litigated in recent years in this Province than those involving Wal-Mart Canada Corp., the United Food and Commercial Workers Union and the employees at the Weyburn Wal-Mart store. The within appeal and cross-appeal represent another

chapter in the long-running saga. [ 2 ] Underlying the appeal and the cross-appeal is one decision of the Saskatchewan Labour Relations Board pertaining to three applications made to it by the Union and a fourth application made by an employee, Gordon Button. See: United Food and Commercial Workers, Local 1400 v. Wal-Mart LRB File Nos. 096-04, 038-05, 001-09, 166-10, 177-10, 184-10 and 224-10, June 23, 2011. In its applications to the Board, the Union alleged that Wal-Mart had committed a number of unfair labour practices. In his application, Mr.

Button sought an order decertifying the Union as the bargaining agent for the employees at the Weyburn Wal-Mart. [ 3 ] By way of a preliminary decision, the Board directed at the outset that all applications be heard at one time in a consolidated hearing. To facilitate this, the Board ordered that the Weyburn employees be allowed to vote on the question of whether they still wanted to be part of the Union, directing that the vote be taken before the consolidated hearing, but that the ballots not be counted in the meantime. See: United Food and Commercial Workers, Local 1400 v.

Wal-Mart Canada Corp . , LRB File Nos. 096-04, 038-05, 001-09, 166-10, 177-10 and 184-10, dated December 9, 2010. In consequence, the employees voted, but the ballots have yet to be counted. [ 4 ] During the course of the consolidated hearing, the Board addressed all of the applications before it. The Board dismissed all of the Union’s unfair labour practice applications and allowed Mr. Button’s rescission application.

In the result, the Board ordered that the employees’ votes be counted to determine whether the Union should be decertified as the bargaining agent for the Weyburn store. [ 5 ] The Union immediately applied to the Court of Queen’s Bench to quash all aspects of the Board’s decision plus the preliminary decision directing that the vote be held before the consolidated hearing.

The Union also obtained a stay of the Board’s order directing that the vote be counted pending a final decision from this Court in the matter. [ 6 ] The Court of Queen’s Bench granted the Union some of the relief it sought, but two crucial issues eluded it. Those issues concern whether Wal-Mart had committed an unfair labour practice by communicating with the Weyburn employees and whether the Board should have dismissed the rescission application. Broadly speaking, the Court of Queen’s Bench directed that the Board rehear certain applications, including Mr.

Button’s rescission application, but did not accept the whole of the Union’s arguments to the effect that the Board erred by granting the rescission application. See: United Food and Commercial Workers, Local 1400 v. Wal-Mart Canada Corp . (c.o.b. Wal-Mart) , 2011 SKQB 358 , 387 Sask. R. 43. [ 7 ] The Union then appealed to this Court, asking for the relief that it did not receive from the Court of Queen’s Bench.

For its part, Wal-Mart cross-appealed, seeking to restore the decision of the Board. [ 8 ] In many respects, the appeal and the cross-appeal turn on the proper application of the standard of judicial review. I have concluded that the Queen’s Bench Chambers judge correctly denied the Union the balance of the relief that it sought. Accordingly, I would dismiss the Union’s appeal.

[ 9 ] With respect to the cross-appeal, however, I have concluded that the Chambers judge erred in construing the Board’s decision and misapplied the standard of review. I would therefore allow the cross-appeals and restore the Board’s decision in its entirety. II. Background [ 10 ] The parties have an extensive legal history, consisting of multiple applications to the Board, to the Court of Queen’s Bench and to this Court.

Some of that history is essential background for the purposes of these reasons. [ 11 ] On April 19, 2004, the Union applied to be certified as the employees’ bargaining agent for Wal-Mart’s Weyburn store. It was not until December 4, 2008, however, that the Board ultimately certified the Union. [ 12 ] In the meanwhile, the legislature had passed and proclaimed The Trade Union Amendment Act , 2008 , S.S. 2008, c. 26, which significantly amended s. 6 . The Lieutenant Governor proclaimed The Trade Union Amendment Act , 2008 on May 14, 2008.

The amended s. 6 now requires that the Board “must direct” that a vote be held by secret ballot each time the Board is called upon to determine whether a trade union enjoys the majority support of the employees in a bargaining unit. [ 13 ] On the same day as the Board issued its certification order, Wal-Mart applied to the Board to reconsider its decision, based in part on the new s. 6. On December 24, 2008, the Board issued an interim order imposing a partial stay of obligations on Wal-Mart respecting disclosure of employee information.

The Board also ordered that the reconsideration hearing be held on an expedited basis (p. A234). On January 13, 2009, the Board issued its reasons for that order. [ 14 ] Following the expedited hearing on March 26, 2009, the Board rejected Wal-Mart’s application for reconsideration, concluding that the changes to s. 6 of the Act did not apply to applications filed with the Board prior to the change in the legislation. [ 15 ] On March 27, 2009, Wal-Mart applied to the Court of Queen's Bench seeking judicial review of the certification order.

The Court ordered first an interim stay, and then a final stay, of the Board's certification order. On June 23, 2009, the Court of Queen's Bench quashed the certification Order on the basis that the Board erred by failing to give retroactive effect to s. 6 of the Act and by failing to order that a representative vote of the employees be taken. See: United Food and Commercial Workers, Local 1400 v. Wal-Mart Canada Corp . et. al. , 2009 SKQB 247 . [ 16 ] The Union appealed that decision to this Court, which ultimately concluded that the Board did not err when it decided not to apply s. 6 retroactively.

In so concluding, the Court restored the certification order. See: United Food and Commercial Workers, Local 1400 v. Wal-Mart Canada Corp . et. al. , 2010 SKCA 123 , 326 D.L.R. (4 th ) 367.

The date of the Court’s decision is October 14, 2010, which is an important date for several of the unfair labour practice applications being considered on this appeal. [ 17 ] Meanwhile, playing out in the background of the above applications and appeals, and continuing until November of 2010, are a series of unfair labour applications, brought by the Union, plus the application to rescind the certification order, brought by Mr. Button pursuant to s. 5(

k) of the Act . It is the Board’s decisions in relation to those applications that are under consideration in this appeal. [ 18 ] As mentioned, the Board heard all of the applications together resulting in one decision issued on June 11, 2011. While there were four applications, one of the applications contained four separate allegations of unfair labour practices. In date order, the matters considered by the Board, and presently before the Court, are the following: 1. LRB File No. 096-04 (Unlawful Communications to Employees) filed by the Union as an unfair labour practice on May 3, 2004; 2.

LRB File No. 001-09 (Failure to Bargain Collectively) filed by the Union as an unfair labour practice on January 12, 2009; 3. LRB File No. 184-10 (Unlawful Communications to Employees) filed by the Union as an unfair labour practice on November 8, 2010; 4. LRB File No. 184-10 (Failure to Provide Employee Information) filed by the Union as an unfair labour practice on November 8,

2010; 5. LRB File No. 184-10 (Failure to Abide by Closed Shop Obligations) filed by the Union as an unfair labour practice on November 8, 2010; 6. LRB File No. 184-10 (Failure to Bargain Collectively) filed by the Union as an unfair labour practice on November 8, 2010; and 7. LRB File No. 177-10 (Application for Rescission) filed by Mr. Button on October 29, 2010. [1] The references to the labour relations file numbers indicate the individual files pertaining to each of the applications made to the Board. [ 19 ] The majority of the Board dismissed all of the unfair labour practice applications, granted Mr.

Button’s application and ordered that the votes, which had been taken, be tabulated. A dissenting opinion was also written. In these reasons, references to the decision of the Board are to the reasons of the majority. [ 20 ] On appeal to the Court of Queen’s Bench, the Chambers judge dismissed the Union’s application in relation to LRB File No. 184- 10 (Unlawful Communications to Employees) and denied most of the relief that the Union sought in relation to LRB File No. 177-10 (Application for Rescission).

The Union appeals those decisions to this Court. [ 21 ] The Chambers judge allowed the Union’s application in relation to the five remaining matters and granted the Union some relief regarding LRB File No.177-10 (Application for Rescission). Wal-Mart cross-appeals. While Mr.

Button did not file a cross-appeal, he is named by the Union and Wal-Mart as a respondent and, as such, permitted to make oral submissions. [ 22 ] Detail will be provided with respect to the nature of the various applications, the Board’s reasons and those of the Queen’s Bench in the analysis that follows. [ 23 ] I will begin my analysis with the Union’s appeal in relation to LRB File No. 184-10 (Unlawful Communications to Employees), but I will leave the Union’s appeal pertaining to LRB File No. 177-10 (Application for Rescission) to be considered in conjunction with the cross-appeal by Wal-Mart. III.

Standard of Review [ 24 ] A brief initial word on the standard of review is in order. It must be noted that the Chambers judge did not err in his identification of the standard of review to be applied to the decisions of the Board. He referred to the controlling authority of Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190. He stated that “the factual issues on a judicial review are based on a reasonableness test” and “jurisdictional issues are determined on the standard of correctness.” He referred to United Brotherhood of Carpenters and Joiners of America, Local 1985 v.

Graham Construction and Engineering Ltd. , 2008 SKCA 67 , 296 D.L.R. (4th) 622 at para. 57 where the majority of the Court stated that it is not a stretch to say that the decisions of labour relations boards are left "to the near exclusive determination of the decision-maker,” using the words of McLachlin C.J. in Dr. Q. v. College of Physicians and Surgeons of British Columbia 2003 SCC 19 , [2003] 1 S.C.R. 226. Finally, he referred to Canadian Union of Public Employees, Local 5506 v. Prairie South School Division No. 210 , 2011 SKCA 54 , 371 Sask.

R. 224 at para. 31 , where the Court acknowledged “that courts applying the deferential standard of ‘reasonableness’ may find two conflicting outcomes to be equally reasonable.” [ 25 ] Neither party to this appeal challenged this identification of the standard of review. But as will be discussed later in these reasons, when speaking to the cross-appeal, error exists in the Chambers judge’s characterization of some aspects of the Board’s decision; in his conclusions regarding what constitutes a jurisdictional question; and in his application of the standard of review of reasonableness. IV.

Participation of Board Counsel on the Appeal [ 26 ] As a final preliminary matter, it should be noted that much of the decision of the Chambers judge hinged on his conclusion that the Board lacked jurisdiction, had declined jurisdiction in error or had incorrectly answered a jurisdictional question. As a result, the Court

permitted counsel for the Board to make submissions in accordance with this Court’s decision in Wal-Mart Canada Corp . v. United Food and Commercial Workers, Local 1400 and Saskatchewan (Labour Relations Board) , 2004 SKCA 154 , 247 D.L.R. (4th) 30 at para. 13 . V. The Union’s Appeal -- LRB File No. 184-10 (Unlawful Communications to Employees) 1. Background [ 27 ] This allegation of unfair communication pertains to the period following certification on December 4, 2008 until the date of the filing of the unfair labour practice, November 8, 2010.

In total, between December, 2008 and November, 2010, Wal-Mart posted twenty-eight communications on the workplace notice board. [ 28 ] Of particular interest to the Union are the communications on October 15, 2010 and October 20, 2010. Counsel for the Union summarized these communications in his factum: October 15, 2010 : • Yesterday Court of Appeal released a decision certifying the union as bargaining agent.

Wal-Mart anticipates union will be requesting associate records and store policies as a start for the collective bargaining process. • The matter has been going on since April 2004 when union applied for certification, last day of hearing was December 2005 • "Since that time, Wal-Mart has been fighting to get the associates in this store a vote because so many of you were upset that you had no say in this important workplace issue." • December 4, 2008 - LRB made ruling certifying the UFCW • Wal-Mart appealed decision since it did not get current associates the right to vote as to whether or not they want a union to represent them • April 14, 2009 - Court heard arguments as to whether or not associates should be granted a vote • June 23, 2009 - Court ruled associates are entitled to vote • July 14, 2009 - UFCW appealed Court's decision to grant secret ballot vote • December 2, 2009 the Court of Appeal heard arguments as to whether or not employees should be granted a vote … • Wal-Mart is reviewing options regarding the decision • Talk to management October 20, 2010 : • On October 15, Wal-Mart advised Court of Appeal has certified UFCW "without a vote ever being held" • Company has had a request from union to release personal information and requested the company enter into collective bargaining • "In addition we have had questions from our Associates about what the next steps or options are for the company and/or Associates and about decertifying the union." • Wal-Mart will do everything to protect associates' right to privacy • Wal-Mart continues to explore options to appeal • "Associates have the right to decertify the UFCW Local 1400 as their bargaining agent" • Wal-Mart says it cannot give advice on the process or be involved but advises if employees have questions on decertification to contact [Fred Bayer who is the Board Registrar of the Saskatchewan Labour Relations Board at (306) 787-2406.] the Board Registrar • Wal-Mart further advises the deadline for an application to decertify November 2, 2010 • Copy of Court of Appeal decision is posted as well … • Talk to management

[ 29 ] As part of the 2008 amendments to the Act , s. 11(1)(

a) of the The Trade Union Act , R.S.S. 1978, c. T-17 was amended to add the emphasized words: 11

(1) It shall be an unfair labour practice for an employer, employer's agent or any other person acting on behalf of the employer: (

a) to interfere with, restrain, intimidate, threaten, or coerce an employee in the exercise of any right conferred by this Act, but nothing in this Act precludes an employer from communicating facts and its opinions to its employees ; [emphasis added] [ 30 ] After referring to the new s. 11(1)(a), the Board found that the legislature had “expanded the authority of employers to communicate fact and opinions to employees” (para. 40). Nonetheless the Board declined to make a substantive determination of its

interpretation of this new provision. The Board wrote on that point as follows: [93] … A plain reading of the 2008 amendment to s. 11(1)(

a) leads to the inescapable conclusion that the previous restrictions on employer communications have been modified and that employers are now permitted to communicate facts and opinions to their employees. This Board has yet to make a substantive determination on the

interpretation of this new provision but it is sufficient to say that the state of the law on employer communications changed in 2008 . [emphasis added] [ 31 ] Instead, the Board found that the “impugned communications of the Employer, and in particular the communications that were posted by the Employer on October 15, 2010 and October 20, 2010,” were not “in violation of the Act before or after the amendment to s.11(1)(a)” (para. 94). The Board continued: [94] … These communications were responsive to significant developments affecting employees in the workplace and were factual.

In our opinion, when objectively viewed, the documents posted by the Employer on October 15th and 20th did not amount to an attempt to bargain directly with the employees or to circumvent the Union as the exclusive bargaining agent of the employees . These documents did not amount to an attempt to undermine the Union’s ability to properly represent the employees in the bargaining unit.

Finally, neither the October 15, 2010 nor October 20, 2010 documents, when viewed individually or collectively with the Employer’s previous communications, could reasonably be seen as likely to interfere with, restrain, intimidate, threaten or coerce the employees in the exercise of their rights under the Act . [emphasis added] [ 32 ] The Chambers judge interpreted the Board’s reasons as saying that “the previous restriction on employer’s communications were modified and that employers were now permitted to deliver facts and opinions to their employees” (para. 32). He found that the Board’s

interpretation constituted “a correct statement of the law” (para. 32). He then went on to hold that the Board’s decision that the employer’s communications could not “be reasonably seen as likely to interfere with or coerce the employees to deny their rights under the Act ” amounted to findings of fact which were not unreasonable (para. 32). He dismissed this aspect of the Union’s appeal. [ 33 ] The Union appeals this decision. 2.

Did the Chambers judge err by not quashing the Board’s decision? [ 34 ] The Union states that under the prior law, if Wal-Mart had communicated with its employees in this manner, the Board would have found it guilty of an unfair labour practice. The Union asks that the Board be directed that the 2008 amendments to s. 11 of the Act did not change the substantive law, or alternatively that the Board be directed to properly analyze what effect (if any) the amendments have on an employer’s right to communicate with its employees. [ 35 ] In support of its position, the Union makes four arguments: (

i) from 1983 to 1994, similar language did not result in a change in the Board’s position with respect to the

interpretation of s. 11 of the Act (see: Saskatchewan United Food and Commercial Workers v. Moose Jaw Cooperative Association Ltd., LRB File No. 315-83, quoting from Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v. Western Grocers, Division of Westfair Foods , [1992] S.L.R.B.D. No. 34, and CUPE v. Prairie Bus Services

(1983) Ltd., [1999] S.L.R.B.R. 413 and United Food and Commercial Workers Union, Local 1400 v. Cornerstone Credit Union, [2008] S.L.R.B.D. No. 38 (QL)); (ii) the focus should have been on the effect on the employees (see: United Group – Taxi Division , [2009] S.L.R.B.D. No. 15 (QL) and authorities cited therein at paras. 71- 75, where the Board considered the objective effect of the employer’s efforts at communication);

(iii) decisions from other jurisdictions in Canada use similar wording to the new s. 11(1)(

a) and have been interpreted in the manner inwhich the Board had previously interpreted the prior s. 11(1)(a): e.g. Telus Communications Inc., (CIRB); and (iv) academic authority, notably, Canadian Labour Law, 2ed., Adams, George at 10.920, indicates the constancy with which similarformulations of the prohibition against employer communication have been interpreted. [36] The Union, by its submissions, would like this Court to state that the amendment to s. 11(1)(

a) did not change the law, but that isclearly not our role. Indeed, since the Board did not interpret the new s. 11(1)(a), except to indicate that the law has changed, no basisexists for this Court to say that its

interpretation is unreasonable. The Board expressly found that Wal-Mart’s communications to itsWeyburn employees did not cross the line established by either the old or the new formulation of s. 11(1)(a). The Chambers judgeappears to have applied a correctness standard of review, but the real issue is whether the Board’s application of its

interpretation ofeither formulation is reasonable, according to the definition given to that term by the Supreme Court of Canada in Dunsmuir (para. 47). [37] According to Dunsmuir, a court must consider both the outcome and the quality of the reasons, having regard for their justification,transparency and intelligibility. At this point, it is worth pausing to note that the composition of the Board hearing the Wal-MartWeyburn applications has remained relatively unchanged since 2010 when this Court rendered its most recent decision.

The same Boardhas heard the interim applications for relief, all procedural applications and all the applications giving rise to the consolidated decisionunder review. The decisions are comprehensive and demonstrate a full grasp of the long legal history of the parties and the issues atstake. [38] In weighing the reasonableness of the decision, it appears clear that the Board has followed its prior jurisprudence and consideredthe objective effect on the Weyburn employees. In United Group – Taxi Division at para. 72, the Board quoted from its earlier decisionin Canadian Linen [[1990] S.L.R.B.D.

No. 23], saying: The Board’s approach is designed to ascertain the likely effect on an employee of average intelligence and fortitude. That kind ofobjective approach by its very nature eliminates insignificant conduct, since trivialities will not likely influence an average employee’sability to freely express his wishes.

It also necessitates an inquiry into the particular circumstances of each case, because it recognizesthat the effect of an employer’s words and conduct may vary depending upon the situation. [emphasis added] On this occasion, the Board quoted this same passage. [39] With respect to the outcome, regarding the s. 11(1)(

a) application, I may very well have come to a different conclusion—at leastunder the old formulation. The communications were numerous and extensive. My view on the matter, however, is only relevant if Iwere prepared to say that the Board’s conclusion is unreasonable, and I am not. The Board found that these communications were“responsive to significant developments affecting employees in the workplace and were factual” (para. 94). Given the Board’s extensivehistory with these parties and the events leading up to the application, it is not possible to gainsay this finding.

With this findingunderpinning the Board’s ultimate conclusion, the Board’s decision regarding the nature and effect of the communications must be foundto be reasonable. [40] The Union’s appeal from the Queen’s Bench decision on this point is dismissed. VI. Wal-Mart’s Cross-Appeal with respect to the UnfairLabour Practice Matters A. LRB File No. 096-04— Unlawful Communications toEmployees 1.

Background [41] This is the earliest of the unfair labour applications and, as will be noted, it pre-dates the 2008 certification order. [42] On May 3, 2004, the Union filed an unfair labour practice application alleging that some of Wal-Mart’s communications to its

employees violated s. 11(1)(

a) as it existed before 2008: 11

(1) It shall be an unfair labour practice for an employer, employer's agent or any other person acting on behalf of the employer: (

a) in any manner, including by communication, to interfere with, restrain, intimidate, threaten, or coerce an employee in the exercise of any right conferred by this Act; The remedies requested by the Union for this violation of the Act included, inter alia , access to employee information and access to the workplace by representatives of the Union, together with the opportunity to meet with the employees. [ 43 ] When the Union was designated as the certified bargaining agent for the employees in December of 2008, the Board did not address this unfair labour practice application.

The Union renewed the application as part of the series of applications that it made to the Board during the consolidated hearing. [ 44 ] The facts are that the Union began an organizing drive in Saskatchewan in early 2004, focussing on the Weyburn store. On April 7, 2004, Wal-Mart posted a letter on a bulletin board at the Weyburn store addressed to “all associates” saying, inter alia : What is the effect of signing a union card when asked to do so? This is probably the most important decision of your working life because you commit yourself to the union.

By signing a card, you give the union exclusive rights to represent you and agree to be bound by the union's rules. You should therefore always get a copy of the union's Constitution and Bylaws and understand what you are committing to before you sign the card. In addition, if a majority of people sign a card, you are committed to a union for at least a year. You then need to file a formal application to the Labour Relations Board if you changed your mind and no longer want a union . … How do union representatives get paid? Union Representatives are paid from union dues paid by their members.

Dues are paid from your wages if you are unionized regardless of whether you agree with what the union is doing or not. Before you join the union, you may want to determine how they spend union dues, how much you pay in union dues, what union representatives get paid and if they get paid if you go on strike. Will I lose my job if I join or don't join the union? It is your decision to make. You cannot lose your job if you do not support or support the union.

However, if the union comes in, you must pay union dues whether you support it or not. [ 45 ] On or about April 19, 2004, the day that the Union applied to be certified as a bargaining agent for the Weyburn local, Wal-Mart posted another letter, saying, in part: It is important for all Associates to know and understand that Wal-Mart will always respect the confidentiality of its Associates' private information such as names, telephone numbers, and addresses. We will continue to provide a safe workplace, free from harassment.

We will never disclose your personal and confidential information to anyone at any time unless required to do so by law, for instance to the Government for the purposes of tax reporting. Our Solicitation and Distribution of Literature Policy, CPD-38 , is intended to prohibit any unauthorized solicitation or distribution of literature on Company property. As with any other organization, a union and its representatives have no legal right to attempt, at the store, during working hours, to persuade any Associate to support the organization or participate in any of its activities or functions.

If you encounter any such activity either in the form of direct solicitation or copies of literature left in the store please immediately bring this matter to the attention of store management. Wal-Mart will take all necessary steps to ensure that the normal work activities of all Associates are in no way disrupted by solicitation and distribution by any organization. The union would like to convince you that there is, or ought to be, a wedge between you and your management team. That's just not so! The relationship we enjoy is based on mutual trust and respect.

We respect all our Associates individual rights and are committed to maintaining a working environment that is open and cooperative. [ 46 ] The Board dismissed this application, giving several reasons, couched in the alternative, for doing so. It noted that seven years had elapsed since the complaint had been made and that, following the making of the complaint, the Union had succeeded in becoming certified, suggesting that the complaint was no longer of any practical significance in consequence of this.

In any event, the Board held that the impugned communication, which preceded the certification, did not constitute a violation of s. 11(1). The Board concluded by saying “these communications are too old for the Board to reasonably conclude that they could have any significant residual impact in terms of influencing the current employees in the workplace” (para. 43).

[ 47 ] On appeal to the Court of Queen’s Bench, t he Chambers judge concluded that the Board dismissed the application on the primary basis that time was of the essence in dealing with disputes in a labour relations context (para. 8). The Chambers judge held that the Board was required to decide the unfair labour practice and by failing to do so “acted in excess of its jurisdiction” (para. 9). Relying upon s. 42 of the Act , he stated that delay in this case lies primarily at the foot of the Board: 10 It is clear that the Board shall exercise its powers and perform its duties under the Act. It is not permissive.

The Board does not have the discretion whether or not it should exercise its powers or perform its duties. It must do so. The Union brought the initial application in a timely fashion. The Board did not deal with it. It concerned itself with matters of certification, including a three-year delay in coming to a determination of whether the Union would be certified. A majority of the seven-year delay lies at the foot of the Board in failing to deal with the application. The balance of the delay appears to be as a result of the various court applications and orders that have consumed this file.

The Board is required "[to make] orders requiring compliance with the provisions of this Act." The Board cannot say that too much time has passed, through no fault of the Union, to comply with its legislative mandate. The issue of whether Walmart communicated with its employees in violation of the Act should have been decided by the Board. The passage of time may result in the decision having less relevance to the relationship between the Union and the Employer, but that is not a reason for the Board to abandon its obligation under the Act.

The passage of time may impact on any penalty imposed or the fashioning of any order regarding future compliance. [emphasis in original] In his conclusion, the Chambers judge held that the Board could not dismiss the application on the basis of the “timing of the complaint” (para. 12). [ 48 ] Wal-Mart appeals this aspect of the Queen’s Bench decision. 2. Did the Board act in excess of its jurisdiction? [ 49 ] With respect to this aspect of the Queen’s Bench decision and those that follow, the Chambers judge used language, and an approach to review, that significantly pre-dates Dunsmuir .

In Dunsmuir and its subsequent jurisprudence, the Supreme Court of Canada has stressed the narrowness of what constitutes a “jurisdictional question.” In Dunsmuir , the majority cautioned against applying the standard of review of correctness to anything but “true questions of vires ”: 59 … "Jurisdiction" is intended in the narrow sense of whether or not the tribunal had the authority to make the inquiry. In other words, true jurisdiction questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter.

The tribunal must interpret the grant of authority correctly or its action will be found to be ultra vires or to constitute a wrongful decline of jurisdiction…An example may be found in United Taxi Drivers' Fellowship of Southern Alberta v. Calgary (City) , [2004] 1 S.C.R. 485 , 2004 SCC 19 . In that case, the issue was whether the City of Calgary was authorized under the relevant municipal acts to enact bylaws limiting the number of taxi plate licences (para. 5, per Bastarache J.). That case involved the decision-making powers of a municipality and exemplifies a true question of jurisdiction or vires .

These questions will be narrow. We reiterate the caution of Dickson J. in CUPE that reviewing judges must not brand as jurisdictional issues that are doubtfully so. [emphasis added] Since Dunsmuir , the Court has given full effect to the principle that true jurisdictional questions arise where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter. [ 50 ] In Nolan v. Kerry (Canada) Inc ., 2009 SCC 39 , [2009] 2 S.C.R. 678 , one question was whether the Financial Services Tribunal had the authority to award costs from a particular fund.

The Supreme Court of Canada found that this was a question of

interpretation not jurisdiction. The majority wrote: 33 Administrative tribunals are creatures of statute and questions that arise over a tribunal's authority that engage the

interpretation of a tribunal's constating statute might in one sense be characterized as jurisdictional. However, the admonition of para. 59 of Dunsmuir is that courts should be cautious in doing so for fear of returning "to the jurisdiction/preliminary question doctrine that plagued the jurisprudence in this area for many years". 34 The inference to be drawn from paras. 54 and 59 of Dunsmuir is that courts should usually defer when the tribunal is interpreting its own statute and will only exceptionally apply a correctness standard when

interpretation of that statute raises a broad question of the tribunal's authority . [emphasis added] The Court applied a reasonableness standard of review to the determination of whether the tribunal had the authority to award costs out of the fund. [ 51 ] In Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2011 SCC 53 , [2011] 3 S.C.R. 471 the question was whether the Human Rights Commission had the authority to award costs against someone who had been found to have discriminated against the complainant. Again, the Court found this question to be one of

interpretation and not jurisdiction. The Court wrote:

24 …Although Dunsmuir maintained the category of jurisdictional questions, it took the view that this category should be interpreted narrowly. Indeed, our Court has held since Dunsmuir that issues which in other days might have been considered by some to be jurisdictional, should now be dealt with under the standard of review analysis in order to determine whether a standard of correctness or of reasonableness should apply (see, e.g., Celgene Corp. v. Canada (Attorney General), 2011 SCC 1 , [2011] 1 S.C.R. 3 , at paras. 33-34 ; Nolan v. Kerry (Canada) Inc. , 2009 SCC 39 , [2009] 2 S.C.R. 678 , at paras. 28-34 ). In substance, if the issue relates to the

interpretation and application of its own statute, is within its expertise and does not raise issues of general legal importance, the standard of reasonableness will generally apply and the Tribunal will be entitled to deference . [emphasis added] The Court concluded that the issue of the authority of the Commission to award costs attracted a reasonableness standard. [ 52 ] In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association , 2011 SCC 61 , [2011] 3 S.C.R. 654 , the Court squarely addressed the issue of what constitutes a jurisdictional question.

Rothstein J., speaking for the majority, held that the standard of review of an administrative tribunal's decision should be presumed to be reasonableness, and questioned whether "true" jurisdictional issues even exist (para. 42). Further, the onus of rebutting the presumption of review on the reasonableness standard rests with the party asserting that a "true" jurisdictional question exists. He wrote: [39] What I propose is, I believe, a natural extension of the approach to simplification set out in Dunsmuir and follows directly from Alliance (para. 26).

True questions of jurisdiction are narrow and will be exceptional. When considering a decision of an administrative tribunal interpreting or applying its home statute, it should be presumed that the appropriate standard of review is reasonableness. As long as the true question of jurisdiction category remains, the party seeking to invoke it must be required to demonstrate why the court should not review a tribunal's

interpretation of its home statute on the deferential standard of reasonableness . [emphasis added] In fairness to the Chambers judge this particular decision succeeds his in time. [ 53 ] Also in fairness to the Chambers judge, this part of the Board’s decision could have been expressed in more straightforward terms. Later in its reasons, with respect to other unfair labour applications, the Board expressly states that it is exercising the power to determine that the matter before it is moot.

With respect to LRB File No. 096-04 (Unlawful Communications to Employees), however, the only thing that is clear is that the Board dismissed the application, but in doing so the Board used language that appears to mix the question of the timing of the application and effectiveness of its decision with whether the communications themselves infringed the Act . [ 54 ] The heart of the Board’s decision is found in these passages: [39] In this application, the Union asked this Board to find that a violation of the Act had occurred for communications posted by the Employer at the workplace some seven (7) years ago.

Even if the claims of the Union with respect to the Employer’s 2004 communications were not satisfactorily settled through the Board’s certification Order (an argument that has considerable merit), the Board is inescapably drawn to the conclusion that seven (7) years is too much delay for this Board to subject the Employer’s actions in 2004 to the scrutiny of the Act . [40] Secondly, even if these communications were not too old to form the basis of a violation of the Act , in our opinion, the 2004 communications did not constitute a violation of s.11(1) of the Act.

In coming to this conclusion, we note that the impugned conduct occurred prior to the amendment to s. 11(1)(

a) of the Act (May 14, 2008), which expanded the authority of employers to communicate fact and opinions to employees. For purposes of the 2004 communications, we have relied upon the language of s.11(1)(

a) as it was prior to the 2008 amendment. … [43] Simply put, in our opinion, the 2004 communications posted by the Employer in the workplace do not give rise to a violation of the Act. These communications are too old for the Board to reasonably conclude that they could have any significant residual impact in terms of influencing the current employees in the workplace. [ 55 ] In my view, the Board provided distinct reasons for finding that the 2004 communications did not give rise to a violation of the Act .

The Chambers judge may well be correct that it would not be a reasonable exercise of the Board’s powers to decline to decide a matter based on “delay” unattributed to any party—as distinct from mootness—but the Board in this case has clearly stated that the 2004 communications did not constitute a violation of s. 11(1) of the Act . This reason cannot be rejected—it is an alternative reason, which is not obiter . It must be tested for its reasonableness. 3. Is the Board’s decision finding that the 2004 communications did not violate s. 11(1) reasonable?

[56] The Board reviewed its most recent jurisprudence prior to the 2008 amendment: Saskatchewan Joint Board, Retail, Wholesale andDepartment Store Union v. Temple Gardens Mineral Spa Inc. and Deb Thorn, [2007] S.L.R.B.D. No. 7, LRB File No. 162-05. In thatdecision, the Board confirmed its prior jurisprudence to the effect that an employer may communicate with its employees, “even withrespect to matters that are the subject of collective bargaining negotiations, so long as the communication: (

a) does not amount to anattempt to bargain directly with the employees and circumvent the union as the exclusive bargaining agent; (

b) does not amount to anattempt to undermine the union’s ability to properly represent the employees; and (

c) does not interfere with, restrain, intimidate, threatenor coerce an employee in the exercise of any rights conferred by the Act” (para. 46). The inquiry in each case is contextual in nature andrequires the Board to consider the likely effect of the impugned communications on an employee of average intelligence and fortitude. [57] Applying these principles to the within matter, the Board concluded that: (

i) the communications did not amount to a campaign byWal-Mart against the Union; (ii) the communications were directed to all of the employees as a group and were responsive to new eventsoccurring in the workplaces involving the employees, namely the solicitation of support by the Union for a certification application; and(iii) other than with respect to one comment made by Wal-Mart, the communications, when viewed objectively, would not haveinterfered with an employee of average intelligence and fortitude in the exercise of his or her rights under the Act. [58] Since Dunsmuir, the Supreme Court of Canada has reiterated its view of how the reasonableness of a tribunal’s decision is to beassessed.

The most recent series of these decisions are: Canada (Canadian Human Rights Commission) v. Canada (Attorney General),supra; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Healthcare Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616and Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708.

In the last of these decisions, Abella J., writing for a unanimous Court stated: 13 Dunsmuir … represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisions intheir respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are oftencounter-intuitive to a generalist.

That was the basis for this Court's new direction in Canadian Union of Public Employees, Local 963 v.New Brunswick Liquor Corp., (SCC), [1979] 2 S.C.R. 227, where Dickson J. urged restraint in assessing the decisions ofspecialized administrative tribunals. This decision oriented the Court towards granting greater deference to tribunals, shown inDunsmuir's conclusion that tribunals should "have a margin of appreciation within the range of acceptable and rational solutions" (para.47).

Commenting on the influence that specialized expertise has on the selection of the appropriate standard of review in labour matters, themajority in Dunsmuir referred specifically to adjudication in labour law as remaining a good example of the relevance of deference (atpara. 54). [59] On the application of the test of reasonableness articulated in the above decisions, the Board’s reasons are transparent and clear, andresult in an outcome that was clearly available to the Board. With that, Wal-Mart’s appeal in relation to LRB File No. 096-04 (UnlawfulCommunications to Employees) must be allowed. B.

LRB File No. 001-09 (Failure to Bargain Collectively) 1.

Background [60] On January 12, 2009, the Union applied for an order declaring that Wal-Mart had committed an unfair labour practice because ithad failed to meet and bargain collectively for the period from December 24, 2008 to January 12, 2009—while Wal-Mart’s appeal to the Board to reconsider its December 24, 2008 certification order was pending. [61] The legislative provision, governing this particular unfair labour practice allegation, is s. 26.5 of the Act: First collective bargaining agreements 26.5(1) If the board has made an order pursuant to clause 5(b), the trade union and the employer, or their authorized representatives, mustmeet and commence bargaining collectively within 20 days after the order is made, unless the parties agree otherwise.

The remedies requested by the Union for the period of time in question included an Order directing that Wal-Mart identify its bargainingteam and for that team to meet and commence collective bargaining with the Union.

[ 62 ] On January 16, 2009, the Board granted an interim order with respect to this unfair labour practice directing that Wal-Mart: (

i) provide the identity of the members of its collective bargaining team and the dates when such persons would be available for collective bargaining; and (ii) meet with representatives of the Union for the purposes of collective bargaining (see: p. A285). [ 63 ] The Board gave two reasons for dismissing LRB File No. 001-09 (Failure to Bargain Collectively): (

i) the status of the obligations on the parties to bargain collectively could have been reasonably misinterpreted following the Board’s interim order on December 24, 2008 until January 13, 2009, when the Board explained its earlier stay; and (ii) as a result of the interim relief granted on January 16, 2009 and the passage of time, the Board held that the matter is moot.

On this latter point, the Board wrote as follows: [82] Secondly, even if we had been satisfied that there was no confusion with respect to the obligations on the parties to bargain collectively and the Employer erred in failing to commence bargaining with the Union prior to the Board’s interim Order of January 16, 2009, we would not have been persuaded that any further relief from the Board would be appropriate. All appropriate remedial relief arising out of the Union’s application was granted by the Board on January 16, 2009 and no further relief would be appropriate or reasonable under the circumstances.

In this regard, we agree with the position advanced by the Employer that the passage of time has rendered this application moot . [emphasis added] [ 64 ] The Chambers judge found fault with both reasons given by the Board. In relation to the first reason, he held that Wal-Mart had led no evidence regarding its misapprehension of the Board’s orders and its obligations. According to the Chambers judge, Wal-Mart was required to prove by an “affidavit from the Employer suggesting there was any misunderstanding as to its obligations under the Act ” (para. 19).

Instead, the Board had “simply put forward an argument that it was possible to misinterpret the Board's interim order” (para. 19). Without evidence, the Chambers judge found that the Board’s decision was “unreasonable as being based on speculation from the Board members as opposed to facts from the Employer” (para. 19). [ 65 ] With respect to the Board’s second reason for dismissing this unfair labour practice, the Chambers judge held that the Board was required to “make a decision regarding the unfair labour practice” in accordance with the mandate imposed on it by s. 42 of the Act .

He wrote as follows: 21 The issue is not whether further relief would have been appropriate. The issue before the Board was whether an unfair labour practice had occurred by the Employer failing to bargain collectively. That was the decision mandated to be made by the Board pursuant to the application from the Union and the Board's obligations under s. 42 of the Act . Again, following the rationale previously in this decision, it may have been appropriate that any further relief would not be necessary.

However, the fact of the finding of an unfair labour practice may have some relevance to the employees or the Union in the continuing issues surrounding collective bargaining and the Union's efforts to obtain a collective bargaining agreement on behalf of the employees. The Board was under an obligation to make a decision regarding the unfair labour practice and, following that decision, would be in a position to determine what remedy would be applied. It cannot go to the second step of the process and determine there would be no remedy applied in any event.

The Board has to follow a logical and rational reasoning process in fulfilling its obligations under the Act and first make the determination was mandated by the Act. … 24 The Board again failed to do what it was mandated under the Act, that is, to make a decision with respect to the question of whether an unfair labour practice had occurred because of this activity. The Union was entitled to receive a decision on this matter . It is clear from the Board's interim ruling that on the facts before it, the Employer was not providing the information required under the Act.

One would have thought it was an easy step then to make the determination that the Union's complaint was well founded. The Board declined to make such a finding. It made the same mistake as referred to previously. Because additional relief would not be appropriate is not a determination as to whether there was a violation of the Act in the first place . In fact, granting the interim relief appears to be an acceptance that such is the case.

The Board should have determined whether the complaint was well founded and, if so, provided the appropriate order which, in the circumstances, may have been that no further relief was required . [emphasis added] Wal-Mart appeals this aspect of the Queen’s Bench decision. 2. Did the Chambers judge err by quashing the decision of the Board on the basis that it lacked the jurisdiction to decline to decide on the basis of mootness? [ 66 ] As with its decision in relation to LRB 096-04, the Board gave two reasons for dismissing the application. Again, neither reason can be considered obiter .

If either decision is reasonable, the decision of the Board must stand.

[67] I agree with the Chambers judge that it is questionable whether the Board could act to absolve Wal-Mart on the basis of confusionabout its obligations, regarding its obligations under the Act. The Union had been certified; the Board’s order was the last word untillater in January of 2009. On the other hand, whether the Board has the authority to decline to decide for mootness is not a jurisdictionalquestion (see: infra). [68] The legislation to be construed is s. 5(

d) and s. 42 of the Act, which are reproduced here for reference: Powers of board 5 The board may make orders: … (

d) determining whether an unfair labour practice or a violation of this Act is being or has been engaged in; . . . Powers and duties of board 42 The board shall exercise such powers and perform such duties as are conferred or imposed on it by this Act, or as may be incidental tothe attainment of the objects of this Act including, without limiting the generality of the foregoing, the making of orders requiringcompliance with the provisions of this Act, with any regulations made under this Act or with any decision in respect of any matter beforethe board.

By its decision, the Board has concluded that these sections confer upon it the authority to decline to decide on the basis of mootness. [69] The question of whether the Board has the authority to decline to decide a matter because it is moot is not a jurisdictional questionand does not attract a correctness standard. It is a question of statutory

interpretation of the Board’s own legislation in order to determinewhether the Board has the power to decline to decide an unfair labour practice application on the ground that the matter is moot. AsRothstein J. stated in Alberta (Information and Privacy Commissioner), the standard of review applicable to such a question is presumedto be reasonableness. The issue for this Court becomes whether the Board’s

interpretation that it has the power to dismiss an unfairlabour practice application for mootness is a reasonable

interpretation of its legislation. [70] The principles of statutory

interpretation are well-known.

An Act of the legislature is to be construed purposively, having regard forall of its terms and its context. On its face, s. 5(

d) empowers the Board to make a variety of orders and decisions, including whether anunfair labour practice has been committed. Read in context, a

section like s. 5(

d) not only empowers the Board to do so but also imposesa duty upon it to do so once the conditions of fact and law requisite to the exercise of that power are met (see: Dergousoff v. Dergousoff, (SK CA), [1999] 10 W.W.R. 633 (Sask. C.A.) at para. 51, as per Cameron J.A.). This, of course, is the significanceof s. 42, which directs that the Board shall exercise its powers. But this is not to say the Board must always act on complaints callingupon it to exercise its s. 5 powers. [71] No one would seriously contend that the Board is required to decide a matter which, for whatever reason, has become moot.

TheBoard’s role is to decide live disputes, not those of no practical significance or those of a merely hypothetical nature, except perhaps inextraordinary circumstances, which is a matter for the Board in the exercise of its discretion. In The Corporation of the City ofMississauga, [1982] OLRB Rep.

March 420, (ON LRB) the Board made the comment it would be “difficult to acceptthat the Legislature ever envisaged that an unfair labour practice, once chrystallized, could exist indefinitely in a state of suspendedanimation and be revived to become a basis for litigation years later” (para. 20). [72] Further, labour boards have exercised other common law doctrines such as abandonment (see: United Brotherhood of Carpentersand Joiners of America, Local 1985 v.

Graham Construction and Engineering Ltd, supra), and arbitrators in the labour context have beenfound to have the authority to apply estoppel (see: Nor-Man, supra). By analogy, I can see no basis for concluding, on a proper readingof ss. 5 and 42, that the Board is precluded from acting on the common law doctrine of mootness. The real issue then, is whether theBoard’s decision to declare this matter moot is a reasonable one. 3. Is the Board’s decision declaring the matter mootreasonable? [73] The classic statement of the law pertaining to mootness comes from Borowski v. A.G. Canada, (SCC), [1989] 1S.C.R. 342.

The doctrine of mootness applies “when the decision of the court will not have the effect of resolving some controversywhich affects or may affect the rights of the parties” (at p. 353). The Court in Borowski went on to express this formulation in these

terms: (i) “[i]f the decision of the court will have no practical effect on such rights, the court will decline to decide the case”; and (ii)“if…events occur which affect the relationship of the parties so that no present live controversy exists which affects the rights of theparties, the case is said to be moot” (at p. 353). [74] Borowski establishes a two-step process.

Once a court finds that a matter is moot, the matter may nonetheless be heard and decidedif the court in its discretion decides it should do so. [75] The Union submits that there is a live controversy: whether the application for rescission should be granted, such that it wasunreasonable for the Board to find that its unfair labour practice application was moot.

As with LRB File No. 096-04 (UnlawfulCommunications to Employees), the Union argues that the Board should have made a finding as to whether Wal-Mart had been guilty ofan unfair labour practice, even if no new remedy could be granted, because of its potential impact on the rescission application. [76] It would have been preferable for the Board to have referred to the law pertaining to mootness as it did in Lisoway v. CanadianUnion of Public Employees, Local 3078, (SK LRB), and applied the two-part test from Borowski.

From the Board’sreasons in this case, it is not apparent that the Board asked itself the second question as to whether any good reason existed for it todecide the matter. In another case this might be grounds for intervention, but on this occasion an appropriate attitude of deferencerequires this Court to defer to the Board. [77] It is clear that everyone understood what was fundamentally at stake, which is whether the vote that had already been taken wouldbe counted.

On November 9, 2010, the Union filed an interlocutory application with the Board asking that its unfair labour practiceapplications and its application for first collective agreement assistance be heard and determined prior to the Board proceeding with therescission application filed by Mr. Button and prior to the holding of a representative vote pursuant to that application. [78] The Union wanted its applications heard first, knowing that any well-founded unfair labour practice on the part of Wal-Mart mighthave a bearing on the Board’s decision on the rescission application.

On December 9, 2010, the Board denied the Union’s application.(See: United Food and Commercial Workers, Local 1400 v. Wal-Mart Canada Corp., LRB File Nos. 096-04, 038-05, 001-09, 166-10,177-10 and 184-10, dated December 9, 2010, supra). The Board was concerned to carry out its legislative mandate to determine thewishes of the employees as soon as possible. In detailed reasons, the Board weighed the competing interests and ordered that the wishesof the employees be captured by secret ballot, but not counted.

In doing so the Board expressly acknowledged that, if the Union weresuccessful in one or more of its applications, the votes may never be counted (para. 36). Moreover, the Board also ordered that theUnion’s application for first collective agreement assistance proceed without delay as well. [79] The Board held that delaying the rescission application until after the unfair labour applications were heard would be inconsistentwith “the fundamental right of employees to determine the representative question” as contemplated by the legislature when it amendeds. 6 of the Act.

The Board also ordered that a pre-hearing vote of the members of the bargaining unit be conducted and that “the ballotsshall not be counted because of the important issues yet to be determined in these proceedings” (para. 36). The Board then ordered thatthe unfair labour practice applications and Mr. Button’s rescission application be combined and set down for hearing concurrently. [80] The Union applied to the Court of Queen’s Bench to quash this decision as well as the final decision in relation to the unfair labourpractices and the Button rescission application.

On this appeal, the Union argues that the Board was in error to proceed with the voteand the rescission application until such time as its unfair labour applications were heard, but the Board’s decision to consolidate allapplications seems eminently reasonable and fair to the Union. [81] The Union does not argue that the Board tailored its decisions on the unfair labour practice applications to arrive at a pre-determined result in relation to the rescission application—nor does it appear any basis exists to make such an argument.

The issue forthis Court is whether the Board’s decision declining to decide for mootness is reasonable in light of the larger controversy between theparties. [82] In my opinion, it is not unreasonable for the Board to have decided to decline relief. Given the nature of the Board, the extensivehistory of the parties before the Board on this and other applications, the overall context of the case and the quality of the reasons, nobasis exists for this Court to hold that the outcome is unreasonable.

The Board had already granted all necessary relief, Wal-Mart hadcomplied with that relief and the application was then dated. If this Court were satisfied that the Board had decided the unfair labourapplications in such a way as to dictate a result on the rescission application, the decision of the Board would be unreasonable andvulnerable to intervention, but it is simply impossible to conclude other than that the Board had the power to declare the matter moot andthat it has reasonably exercised that power.

[ 83 ] In sum, Wal-Mart’s appeal from LRB File No. 001-09 (Failure to Bargain Collectively) is allowed. C. LRB File No. 184-10 (Failure to Provide Employee Information) 1. Background [ 84 ] On November 8, 2010, the Union filed an unfair labour practice. As previously noted, that application encompassed a number of unfair labour practice applications (which were considered as discrete applications by the Board and the Court of Queen’s Bench). On November 9, 2010, the Union asked for interim relief, some of which was granted. On December 10, 2010, the Board granted this: INTERIM ORDER THE LABOUR RELATIONS BOARD, pursuant to

Section 5.3 of The Trade Union Act , HEREBY ORDERS that the Employer provides the Union with the following information; 1. Contact information for all employees falling within the scope of the bargaining unit, including up-to-date civic addresses, home telephone numbers and e-mail addresses; and 2. The date of hire for all employees falling within the scope of the bargaining unit.

As part of the consolidated hearing, the Board asked for a determination as to whether Wal-Mart had engaged in an unfair labour practice by not providing the Union with employee information before the December 10, 2010 interim order. [ 85 ] The Board declined to grant further relief than had already been granted and found that the matter was moot: [86] ... In our opinion, the interim relief granted by the Board on December 10, 2010 fully addressed the defect in information required to be provided by the Employer . The evidence indicates that the Employer complied with the Board's interim Order.

As such, in our opinion, this aspect of the Union's application is now moot as no additional remedial relief is required or appropriate at this time . [emphasis added] [ 86 ] As with the LRB File No. 001-09, the Chambers judge ruled that the Board was required to decide whether Wal-Mart had engaged in an unfair labour practice by failing to provide employee information: 24 The Board again failed to do what it was mandated under the Act , that is, to make a decision with respect to the question of whether an unfair labour practice had occurred because of this activity.

The Union was entitled to receive a decision on this matter . It is clear from the Board's interim ruling that on the facts before it, the Employer was not providing the information required under the Act. One would have thought it was an easy step then to make the determination that the Union's complaint was well founded. The Board declined to make such a finding. It made the same mistake as referred to previously. Because additional relief would not be appropriate is not a determination as to whether there was a violation of the Act in the first place.

In fact, granting the interim relief appears to be an acceptance that such is the case. The Board should have determined whether the complaint was well founded and, if so, provided the appropriate order which, in the circumstances, may have been that no further relief was required . [emphasis added] Wal-Mart appeals this aspect of the Queen’s Bench decision. 2. Did the Chambers judge err by quashing the decision of the Board? [ 87 ] Mootness in this case was derived from two findings of the Board: (

i) the Board had fully addressed the defect in the information required to be provided by Wal-Mart by its order for interim relief granted on December 10, 2010; and (ii) Wal-Mart had complied with the interim order (para. 86 of the June 23, 2011 Board decision).

[ 88 ] The Union challenged this decision on the same basis as the previous one: that it was entitled to a decision as to whether Wal-Mart had engaged in an unfair labour practice by failing to provide employee information. In its December 10, 2010 decision the Board had ordered interim relief on the basis that the Union had made out an arguable case that Wal-Mart had contravened the Act by failing to provide contact information for new employees. The Union chose to proceed with an interim application and they obtained the relief that they sought: an order compelling compliance.

It was then for the Board to determine whether it would make a final declaration of wrong doing on the part of Wal-Mart when no new relief would be granted. [ 89 ] As with the previous decision, the standard of review to apply is reasonableness and no basis exists for this Court to conclude that the Board’s decision is not reasonable. Wal-Mart’s appeal from the Chambers judge’s decision on LRB File no. 184-10 (failure to provide employee information) is allowed. D. LRB File No. 184-10 (Failure to Abide By Closed Shop Obligations) 1.

Background [ 90 ] This allegation of an unfair labour practice engages s. 36 of the Act : Union security 36(1) Upon the request of a trade union representing a majority of employees in any appropriate unit, the following clause shall be included in any collective bargaining agreement entered into between that trade union and the employer concerned, and, whether or not any collective bargaining agreement is for the time being in force, the said clause shall be effective and its terms shall be carried out by that employer with respect to such employees on and after the date of the trade union’s request until such time as the employer is no longer required by or pursuant to this Act to bargain collectively with that trade union : Every employee who is now or hereafter becomes a member of the union shall maintain his membership in the union as a condition of his employment, and every new employee whose employment commences hereafter shall, within 30 days after the commencement in his employment, apply for and maintain membership in the union , and maintain membership in the union as a condition of his employment, provided that any employee in the appropriate bargaining unit who is not required to maintain his membership or apply for and maintain his membership in the union shall, as a condition of his employment, tender to the union the periodic dues uniformly required to be paid by the members of the union; and the expression “the union” in the clause shall mean the trade union making such request. [emphasis added] [ 91 ] Wal-Mart did not advise any employees of their obligation to join the Union.

Wal-Mart interpreted the limits of its obligations as extending to giving employee information to the Union . [ 92 ] In dealing with this unfair labour practice allegation, the Board held that if an employer in a certified workplace opts not to provide union membership application forms directly to new employees, that employer is nonetheless under an obligation to do more than advise the representative trade union of the name and contact information for new employees (at para. 102).

That finding, however, was of no consequence because the Board found that Wal-Mart was under no obligation to advise new employees of their statutory obligation to join the Union during the period when the certification Order was stayed or quashed by the Queen’s Bench (para. 104). Since no new employees were hired after October 14, 2010 and before the unfair labour practice application was filed, Wal-Mart could not be faulted for failing to comply with s. 36.

On this latter point, the Board wrote: [106] … Finally, the evidence indicates that no employees were hired by the Employer during the period following the reinstatement of the Board’s Order (i.e.: starting October 15, 2010) and prior to the filing of the Union’s application (i.e.: on November 8, 2010). [ 93 ] No new employees were hired between October 15, 2010 and November 8, 2010, but six employees were hired the day this Court released its decision upholding the Union’s certification, i.e., October 14, 2010. [ 94 ] The Chambers judge made two findings: (

i) the Board’s conclusion in relation to the employees who were hired on October 14 th was unreasonable; and (ii) the Board had failed to consider that Wal-Mart had failed in its obligation to advise all of the employees who were not employees at the time of the 2004 application for certification of their obligation to join the Union, following this Court’s

decision on October 14, 2010. With respect to these two points, the Chambers judge wrote as follows: 36 It is unclear why the Board used October 15 as the cut-off date for the obligation by Walmart to advise its new employees of union membership . The Court of Appeal's decision is dated October 14, and employees from that date forward who were hired should have been advised by the Employer of their union membership obligations as directed by the Board.

It is not for me to make a determination whether employees were, in fact, hired on October 14 or October 15 but for the Board to make a factual finding on that issue and then come to a determination if there had been a breach of the Employer's obligations under the Act. 37 The Union also argued that after the Court of Appeal decision had been rendered, it then became incumbent upon the Employer to notify those employees who had been hired during the stay period of their union membership obligations. The Board did not deal with this issue.

The logical extension of the Board's reasoning in paragraph 102 would make it clear that Walmart had an obligation to advise those previously hired employees of the requirement for union membership. That obligation did not commence until October 14, 2010, and therefore, failure to advise them before that date could not be the subject of an unfair labour practice. However, continuing failure to advise them of their union membership obligations after October 14, if established, may very well be the basis of an unfair labour practice.

The Board, by failing to consider that issue, failed to exercise a jurisdiction given to it and failed to make a determination as required under the legislation. The Board's failure to deal with this leaves employees of Walmart being treated differently with respect to the question of requirements of s. 36 as found by the Board. Some employees, depending on when they were hired, would have to be told by Walmart of their obligations to obtain and maintain membership in the Union.

Other employees would not get that information from Walmart and, ostensibly, would not know of such requirement unless provided to them by the Union, contrary to the rationale in the Board's reasoning. [emphasis added] The Chambers judge quashed this aspect of the Board’s decision. Wal-Mart appeals. 2. Did the Chambers judge err by quashing the Board’s decision? [ 95 ] I interpret the basis for the Chambers judge’s decision to quash as follows. First, he decided that the Board’s decision to select October 15 th was either wrong in law or lacked an evidentiary base.

Second, he decided that the Board erred as a matter of law by not deciding whether Wal-Mart was guilty of an unfair labour practice because it did not advise all past hired employees of their obligation to join the Union once this Court upheld the Union’s certification on October 14, 2010. I will deal with the second issue first. [ 96 ] In my respectful view, the Chambers judge erred in setting aside the Board’s decision on the basis that it declined to exercise a jurisdiction it had. The Board’s power to determine whether Wal-Mart had committed this unfair labour practice is constrained by the dispute before it.

This Court is similarly constrained. [ 97 ] The Board determined these matters: 1. employers are under an obligation to advise new employees of their obligation to obtain and maintain membership in the union as a condition of employment to work in a certified workplace pursuant to the Act ; 2. during the period of time that the certification Order was suspended, Wal-Mart was under no obligation to advise new employees of their statutory obligation to join the Union as a condition of employment for working at the Weyburn store; and 3. while new employees were hired by Wal-Mart to work at the Weyburn store after the Union filed its application on November 8, 2010, these subsequent events were not properly before the Board. [ 98 ] Two matters arising out of the above are worth stressing in the specific words of the Board.

First, the Board found that since Wal- Mart had no obligation to advise employees until the certification order was reinstated: “there can … be no violation of the Act for this period of time” (para. 106).

Second, while the Board was not required to decide whether Wal-Mart had committed an unfair labour practice after the date of the Union’s complaint, it nonetheless offered this advice to Wal-Mart: [107] However, for the purposes of clarity, in our opinion, the Employer is under an obligation to advise new employees that they are under a statutory obligation to join the Union as a condition of employment unless and until this Board rescinds the Union’s certification Order .

A failure on the part of the Employer to acknowledge and comply with this obligation could give rise to a violation of the Act . [emphasis added] [ 99 ] The Board’s entire focus is on “new employees” and not on past employees hired at a time when Wal-Mart had no obligation to inform them of their obligation to join the Union. This, coupled with the wording of the unfair labour practice application, leads me to conclude that this aspect of the dispute was not placed before it.

[ 100 ] I also question, without deciding, the underlying premise of the Chambers judge’s decision. It assumes that s. 36 imposes an obligation on the employer to inform past employees of their obligation to join the union where a certification order is held in abeyance for a number of years and employees have been hired in the meantime.

Section 36 refers to “new” employees because the Act contemplates that all existing employees at the time of certification would be fully aware of their obligations regarding membership in the union. Moreover, no evidence has been placed before this Court that all of the employees at the Weyburn store are not fully informed of their obligations regarding the Union.

If anything can be inferred from the evidence, this much can be: with Wal-Mart’s communications and those of the Union, this workplace is fully aware of its rights and obligations. [ 101 ] The Chambers judge also found that the Board did not decide whether Wal-Mart had committed an unfair labour practice by failing to impose an obligation on Wal-Mart with respect to the employees hired on the day this Court rendered its decision, as opposed to the day after. Unlike a legislative enactment, which is governed by The

Interpretation Act , 1995 , S.S. 1995, c. I-11.2, ss. 4(3), 5(1) , and 5(2) , no statute law specifies when a court decision is effective. And no common law was cited to the Court that would allow us to conclude that a court decision comes into effect at the beginning of the day, regardless of when the decision is released. Thus, assuming this issue was argued before the Board, the issue for the Chambers judge and this Court is whether the Board’s decision selecting October 15 th is reasonable.

If the Board turned its mind to the issue, the Board would have construed not only this Court’s decision, but the decision of the Court of Queen’s Bench that stayed the operation of the certification order. The temporal effect of both decisions would have to be considered. [ 102 ] In my respectful view, the Chambers judge has set too high of a standard by finding that this decision is unreasonable. It is not enough for a reviewing judge to find that the tribunal’s decision is unreasonable; the judge must posit that the other alternatives are reasonable.

In the absence of any law on the point, or any evidence as to when this Court’s decision was released, or when the employees were hired on the day in question, the Board’s selection of October 15, 2010 is as reasonable or perhaps more so than October 14, 2010. [ 103 ] For these reasons, I have concluded that the Chambers judge erred in quashing the Board’s decision in relation to LRB File No. 184-10 (Failure to Abide by Closed Shop Obligations). Wal-Mart’s appeal on this matter is allowed. E. LRB File No. 184-10 (Failure to Bargain Collectively) 1.

Background [ 104 ] This unfair labour practice refers to the period from the date of this Court’s decision on October 14, 2010 to November 8, 2010, the date that the Union applied to the Board with respect to this unfair labour practice application. The Union alleged that for this period Wal-Mart again failed to comply with s. 26.5 of the Act . [ 105 ] The Board dismissed this application, granting Wal-Mart in effect a grace period: [88] In our opinion, this aspect of the Union's application ought to be dismissed.

Firstly, as the Board noted in our Reasons for Decision dated December 10, 2010 in response to the Union's application for interim relief, it is impracticable for the Employer to have violated the Act in the few days between receiving the Union's demand to return to the bargaining table and the time the Union's application was filed with the Board. At this point in time, both parties were digesting the decision of the Court of Appeal. In addition, the Union had also just filed a first collective agreement application with the Board .

In light of these not-insignificant events, the Employer's failure to return to the bargaining table by November 8, 2010 (23 days later) is not indicative of a violation of the Act .

The parties to collective bargaining have the right to a reasonable period of time to ruminate on the implications of major, new developments affecting their relationship (particularly so to developments of the magnitude that occurred during the period relevant to this application) before being answerable for failing to comply with their statutory obligations under the Act . [bold in original, emphasis added] [ 106 ] The Chambers judge quashed this decision on the footing that the Board had effectively amended the Act , substituting policy for the words of s. 26.5 and, as with the previous failure to bargain collectively application, Wal-Mart “should have filed evidence with the Board” demonstrating that it was confused or uncertain (par

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