Docket: CACV 2181 United Food v. Commercial Workers, Local 1400, 2012 SKCA 2

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 2 Date: 20120113 Between: Docket: CACV 2181 United Food and Commercial Workers, Local 1400 Appellant/Respondent by Cross-Claim (Applicant) - and - Wal-Mart Canada Corp., operating as Wal-Mart and Wal-Mart Canada Respondent/Appellant by Cross-Appeal (Respondent) - and – Gordon Button Respondent (Respondent) - and –

Saskatchewan Labour Relations Board Respondent (Respondent) Before: Jackson J. A. (in Chambers) Counsel: Drew Plaxton for the Appellant, United Food and Commercial Workers, Local 1400 John Beckman and Catherine Sloan for the Respondent,Wal-Mart Canada Corp., operating as Wal-Mart and Wal-Mart Canada Fred Bayer for Saskatchewan Labour Relations Board Gordon Button appearing in person Application: From: Saskatchewan Labour Relations Board Heard: January 11, 2012 Disposition: Dismissed

Written Reasons: January 13, 2012 By: The Honourable Madam Justice Jackson Jackson J.A. I. Introduction [1] This is an application by Wal-Mart Canada Corp. for: (

i) an order confirming that the proceedings of the Saskatchewan LabourRelations Board have been automatically stayed by virtue of the application of Rule 15 of the Court of Appeal Rules (Civil) to a decisionappealed to this Court; or, in the alternative, (ii) an order imposing a stay upon the Board, using the Court’s inherent jurisdiction asrecognized in such authorities as Re Blackwoods Beverages Limited (1956), (SK CA), 3 D.L.R. (2d) 529, 18 W.W.R.481 (Sask. C.A.) and International Harvester Credit Corporation of Canada Limited v. Baschuk (1986), (SK CA), 44Sask. R. 228 (Sask.C.A.). II. Background and Procedural History [2] The procedural history is set out in: (

i) the decision of Mills J. in United Food and Commercial Workers, Local 1400 v. Wal-MartCanada Corp. (c.o.b. Wal-Mart), 2011 SKQB 358, which is under appeal; and (ii) a decision of the Board, United Food AndCommercial Workers, Local 1400, v.

Wal-Mart Canada Corp., LRB File No. 166-10, dated December 6, 2011, wherein the Boarddetermined that one aspect of its processes was not stayed by the appeal of the decision of Mills J. (hereinafter, referred to generally as“the Board’s December 6, 2011 decision”). [3] Briefly stated, on September 29, 2011, Mills J. set aside some but not all of a series of the Board’s decisions pertaining to variousapplications made on behalf of the Union in its effort to put in place a first collective bargaining agreement for the employees of Wal-Mart’s Weyburn operations.

On October 25, 2011, the Union appealed those parts of the decision of Mills J. that he had denied. [4] On November 8, 2011, the Board was scheduled to hear an application under s. 26.5 of The Trade Union Act, R.S.S. 1978, c. T-17on behalf of the Union to determine whether it should exercise its discretion to assist the parties to reach a collective agreement. Wal-Mart submitted to the Board that its proceedings were stayed by the operation of Rule 15 of the Court of Appeal Rules (Civil). In thealternative, Wal-Mart applied for an adjournment of the proposed hearing.

On November 9, 2011, Wal-Mart cross-appealed from thedecision of Mills J. Further submissions were made to the Board. [5] The Board ruled on December 6, 2011 that the appeal of the decision of Mills J. did not preclude it from proceeding with itsscheduled hearing of the s. 26.5 application. Further, the Board ruled that more harm would ensue if Wal-Mart’s adjournment requestwere granted than if it were denied.

In the result, the Board dismissed Wal-Mart’s application [6] On January 4, 2012, Wal-Mart filed the within motion asking for similar relief from a Chambers judge of the Court of Appeal as ithad asked of the Board. If I do not grant Wal-Mart’s application, the Board will resume its hearing under s. 26.5 of the Act on January

19, 2012. III. Issues [7] The issues are essentially two-fold: (

i) whether the Board is embarking on some aspect of the proceedings that have been stayed bythe operation of Rule 15(1); (ii) if the answer is no, whether I should exercise the Court’s inherent jurisdiction and order that the presentapplication before the Board be stayed. These issues require an in-depth analysis of the decision of Mills J. and the Board’s December 6,2011 decision. Embedded in these questions are some significant questions of law, but the matter turns essentially on: (

i) what Mills J.decided; (ii) what has been appealed to this Court; and (iii) whether the proceedings before the Court and the Board are so inextricablyintertwined that the Board’s processes should be held in abeyance, pending the outcome of the Court’s decision. IV.

Relevant Legislation [8] Rule 15 of the Court of Appeal Rules (Civil) provides as follows: Stay 15(1) Unless otherwise ordered by the judge appealed from or by a judge, the service and filing of a notice of appeal does not stay theexecution of a judgment or an order awarding mandamus, an injunction, alimony, or maintenance for a spouse, child or dependant adult.Unless otherwise ordered by a judge, the service and filing of a notice of appeal stays the execution of any other judgment or orderpending the disposition of the appeal. (Forms 5a and 5b)

(2) Where leave to appeal from an interlocutory order is granted, the judge hearing the application may give directions as to stayingproceedings.

(3) Where a writ of execution has been issued but is stayed after being issued because of an appeal, the appellant is entitled to obtain acertificate from the registrar that the execution of the writ has been stayed pending the appeal. On the deposit of the certificate with thesheriff, the execution of the writ is stayed but the execution debtor shall pay the sheriff’s fees, and the amount so paid shall be allowed tothe execution debtor as part of the costs of the appeal.

(4) Where the execution of a judgment or order is stayed pending an appeal, all further proceedings in the action, other than the issue ofthe judgment and the taxation of costs under the judgment, are stayed unless otherwise ordered. [emphasis added] V. Is the Application before the Board Stayed as a matter of Law? [9] Wal-Mart submits that it has long been the practice in Saskatchewan that “proceedings before tribunals and inferior courts areautomatically stayed upon the filing of an appeal to the Court of Appeal.”[1] For this proposition, Wal-Mart relies upon Rule 15; Benson v. Benson (1994), (SK CA), 123 Sask.

R. 122 (Sask. C.A.); Western Practice Cases in Civil Actions (2nd ed.)(Calgary: Burroughs & Co, Limited, 1953) at p. 61; and Re: L. (M.S.D.), 2007 SKQB 200, [2007] 8 W.W.R. 708. While all of theseauthorities clearly represent good law, they do not stand for the proposition suggested by counsel for Wal-Mart. A stay of execution,however, is not the same as a general stay of proceedings—particularly in a case such as this. As Chief Justice Bayda wrote in Mayrandv. Mayrand (1982), (SK CA), 20 Sask. R. 263: 5 The parties appear to have attributed to the stay imposed by Rule 15(1) a scope that is totally unwarranted.

The Rule does notimpose a general stay of proceedings bringing to a halt all proceedings in the action as would an order of a Court directing a stay of allproceedings. The Rule imposes a stay of only one proceeding: the execution of the judgment appealed from. [emphasis added] [10] According to Mayrand, Rule 15 does not impose an automatic stay of proceedings on the Board. The only execution which isstayed by Rule 15 is the execution of the judgment under appeal, which is the decision of Mills J.

While that decision addresses manyissues extant between Wal-Mart and the Union, a series of judgments from this Court have held that Rule 15(1) only stays judgments ororders that must be executed: Canadian Pioneer Petroleums Inc. v. Federal Deposit Insurance Corporation (1984), (SK CA), 34 Sask. R. 51; Kennibar Resources Ltd. v. Saskatchewan (Minister of Energy and Mines) (1990), (SKCA), 90 Sask. R. 127; Knutson v. Saskatchewan Registered Nurses’ Association (1990), (SK CA), 87 Sask. R. 89;Neumann v. Saskatoon (City) (1994), (SK CA), 125 Sask. R. 181; Saskatchewan Trust Co. (Liquidator of) v.

DarwallEnterprises Ltd. (1995), (SK CA), 134 Sask. R. 68; Saskatchewan Union of Nurses v. Sherbrooke Community Centre(1996), (SK CA), 141 Sask. R. 161 and Madech Mortgage Corporation v. Kensington Developments Inc. et al., 2000

SKCA 54 . The first question is whether the Board is embarking on something that is stayed by virtue of the stay of execution imposed on the decision of Mills J. [ 11 ] To answer that question, I accept entirely the facts as outlined by counsel for Wal-Mart. On December 9, 2010, the Board rendered a decision respecting numerous applications between the parties, including specifically, a decertification application and an application for a first collective bargaining agreement (see: United Food and Commercial Workers, Local 1400 v. Wal-Mart Canada Corp ., and Gordon Button v.

United Food and Commercial Workers, Local 1400 and Wal-Mart Canada Corp. , LRB File Nos. 096- 04,038-05,001-09, 166-10, 177-10 & 184-10, December 9, 2010 at Appeal Book A618).

The Union had argued that the decertification application should be held in abeyance pending the conclusion of a first collective bargaining agreement, but the Board ruled that the first contract application and the decertification application were to proceed as parallel processes. [ 12 ] On June 23, 2011, the Board ruled that the decertification application was properly brought and that the now mandatory votes of the employees be tabulated (see: Gordon Button v. United Food and Commercial Workers, Local 1400 and Wal-Mart Canada Corp., and United Food and Commercial Workers, Local 1400, v.

Wal-Mart Canada Corp. , LRB File Nos. 096-04, 038-05, 001-09, 177-10, 184-10 & 224-10, June 23, 2011 at Appeal Book A81). [ 13 ] On June 28, 2011, the Union applied to the Court of Queen's Bench for judicial review and requested (amended July 22, 2011): An order quashing and/or setting aside certain orders and reasons of the majority of the panel ofthe Labour Relations Board in LRB File No.s. 096-04, 038-05, 001-09, 166-10 , 177-10 , 184-10 and 224-10, including an interim ruling concerning procedural matters dated the 9th day of December, 2010 . . . [emphasis added] [ 14 ] The decision of the Board in LRB 166-10 appointed an agent for the first stage of the application under s. 26.5 of the Act .

Mills J. made these comments in relation to LRB 166-10: LRB File No. 166-10 39 This file is an application by the Union for an agent in assisting the parties to come to a first collective bargaining agreement, under s. 26.5(1.1) of the Act. This application was granted by the Board over the objections of the Employer. From the material, it appears that this process is ongoing. There would appear to be nothing in the order made by the Board that the Union, in fact, objects to.

The Union presented argument that the process under s. 26.5(1.1) should be completed before a vote occurs for decertification, but that procedural aspect is more properly involved in LRB File No. 177-10 . [emphasis added] [ 15 ] The decision of the Board in LRB 177-10 pertains to the application brought by the respondent Gordon Button to rescind the Union’s certification order made by the Board. Mr. Button filed this application with the Board on October 29, 2010. On December 9, 2010, the Board directed a pre-hearing vote of the employees, over the Union’s objections.

The vote has been conducted, but the counting of the ballots has been suspended, firstly by the Board and secondly, on an interim basis, by order of the Court. The sealed ballot box is in the possession of the Registrar of the Board. [ 16 ] Before Mills J., the Union raised three arguments in relation to LRB 177-10, challenging the decision of the Board to proceed with the rescission application in a parallel proceeding to that occurring with respect to the preparation of the employees’ first collective agreement.

Mills J. rejected two of the Union’s arguments, but sustained the Union’s argument that the Board would have had the discretion to dismiss Mr. Button’s application: (

c) Discretion to dismiss over and above s. 9 52 This issue is tied up with the Board's ruling under File 166-10 . It will be recalled that in that application, the Board ordered the appointment of an agent to assist in obtaining the first collective agreement under s. 26.5 of the Act. The Union wished to have that process completed before Mr. Button's rescission application, including the pre-hearing vote, would go forward.

As a matter of policy, the determination of the order of hearing applications and ruling on them is within the purview of the Board so long as they act in accord with their legislative mandate. The Board framed this issue by the Union as a determination on whether the Board had the discretion to delay or dismiss Mr. Button's application outside of the authority in s. 9 of the Act. The Board came to the conclusion that it did not. The Board, however, only dealt with the issue of dismissal and not the question of delay.

The Board came to the conclusion that it had no discretion to withhold the representative question from employees as mandated under s. 6 of the Act. The Board is correct in that regard unless s. 9 was violated . The Board found that an

interpretation of the Act led them to the inescapable conclusion that it had no authority to delay Mr. Button's application as such authority was not found in s. 9 of the Act. The Board relied on a previous decision in Lesyk v. United Food and Commercial Workers, Local 1400 (2010), 181 C.L.R.B.R. (2d) 47 (Sask.

L.R.B.) , in which it stated: [43] After reviewing the current wording of s. 6, we are inescapably drawn to the conclusion that, if the change to the legislation has not wholly removed our discretion to delay the conduct of representative votes, it would certainly be indicative of a legislative intent signalling the primacy of the right of employees to determine the representative question for themselves without intervention by the Board as to when that vote should take place. The language of s. 6 is now mandatory, with the Board directed to conduct a vote on the

representative question when the conditions precedent prescribed therein are satisfied. The exercise of discretion on the part of the Board to delay the conduct of a representative vote appears inconsistent with the prescriptive nature of the current version of s. 6 of the Act. As a consequence, the past jurisprudence of this Board must give way to the new legislation. 53 The Board concluded that it had no discretion to delay the representative vote pending the first collective bargaining agreement as requested by the Union.

It should be noted that there is nothing in s. 6 that demands that a vote be taken on a rescission application within any particular time frame. The legislature has not mandated that a representative vote be taken before any other orders of the Board are implemented. The Board has the authority to interpret s. 6 as a shifting of the focus of the importance of a representative vote, but to interpret s. 6 as mandating an immediate vote regardless of other activities before the Board is not warranted and is incorrect.

It is not a question of the Board exercising its discretion to hold a vote in advance of the first collective bargaining agreement but, rather, the Board determined it had no jurisdiction to do so. In this conclusion, they were wrong in law. 54 The Board should have reviewed all the facts, including its order under File No. 166-10 and its findings of employer activity that delayed the obtaining of a first collective bargaining agreement, in determining whether a delay in the employee vote was appropriate. The Board must make that determination, not the Court.

However, the Board's comments with respect to the activity of the Employer may very well have resulted in an order delaying the taking of the representative vote until a conclusion of a first collective agreement. That determination should be made by the Board with the understanding they have the jurisdiction to delay the vote in the appropriate circumstances. 55 The decision to hold a representative vote is therefore quashed. 56 This should not be taken as a determination that the Board's decision with respect to the rejection of the s. 9 argument by the Union is accepted. To the contrary, it has been rejected.

The issue left for the Board to determine on File No. 177-10 is whether an exercise of their discretion to delay the representative vote on Mr. Button's application is appropriate.

In coming to that determination, the Board would review all the facts, including the allegations of unfair labour practice, the activities of the Employer falling short of unfair labour practice, the delay by the Board in coming to a conclusion on a certification application and the delays in the court system which prevented collective bargaining from occurring . 57 The Board, knowing it has jurisdiction for a delay in the vote, could make a determination that the vote should not have been taken first but, rather, the determination of the question of the unfair labour practices should have been concluded and made available to the employees so they would have that information to assist them in coming to a conclusion of the appropriateness of the Union as their bargaining agent.

Those matters, however, are best left to the Board to determine. 58 The ultimate decision made by the Board under File No. 177-10 to hold and determine Mr. Button's rescission application is set aside but only with respect to reconsideration of the timing of the vote vis-à-vis the s. 26.5 application, given that the Board has the discretion to delay the vote.

In all other respects, the decision of the Board under File No. 177-10 is upheld. [emphasis added] [ 17 ] Wal-Mart’s counsel directed my attention to the formal order taken out by the Union in relation to the decision of Mills J., which includes the following: 5. The Union's application for judicial review in respect of LRB File No. 166-10 is dismissed. 6. The Order of the Board in respect of LRB File No. 177-10 is quashed, but only in respect to reconsideration of the timing of the vote, and the matter is returned to the Board for determination in accordance with the fiat in the matter within.

Similarly, the Union’s Notice of Appeal, pertaining to the decision of Mills J., includes the following: C. In relation to LRB file 177-10 (the rescission application): all portions of same except the order quashing the decision to hold a representative vote; D. In relation to all files ( re timing of hearings ): the Court's failure to hold the Labour Relations Board erred in not hearing and concluding the first collective agreement application prior to the rescission application being heard.. [emphasis added] E.

In relation to LRB files 177-10 and 224-10 (the objection to the conduct of the vote): the Court’s failure to quash the Labour Relations Board’s decision re: the objection to the vote (if the same was not quashed by the order setting aside the decision to hold the vote). The Notice of Appeal requests the following relief: 5. (

b) An order quashing and/or setting aside all orders and reasons of the majority of the panel of the Labour Relations Board that have not already been quashed or set aside that were brought under judicial review in LRB File Nos. 096-04, 001-009, 166-10 , 177-10, 184-10 and 224-10 ... [emphasis added] [ 18 ] Notwithstanding the Union’s Notice of Appeal, Mills J. made no order in relation to LRB 166-10, the execution of which is stayed. Mills J. quashed one aspect of LRB 177-10 and remitted the matter to the Board, but that is not the application the Board proposes to hear.

In proceeding to conduct a hearing in relation to the first contract, the Board is not acting pursuant to the decision of Mills J. The Board is continuing with its previously scheduled hearing. Having regard for all of the foregoing, I conclude that Mills J. made no order compelling any step in relation to LRB 166-10. Since there is nothing to execute, there is no action stayed by the serving and filing of the notice of appeal.

VI. Should an order be made staying the present application before the Board? [ 19 ] In the alternative, Wal-Mart submits that I should exercise the Court’s inherent jurisdiction and order that the proceedings before the Board in relation to LRB 166-10 be stayed. In this regard, Wal-Mart invokes the jurisdiction first recognized and relied upon in this Province in Blackwoods Beverages. [ 20 ] Like the within case, Blackwoods Beverages concerns a decision of the Board. Briefly, the facts in that case were that the Board made an order conditionally reinstating several employees of Blackwoods.

Blackwoods applied directly to this Court to quash the decision. After the application to quash had been made, but before the Court could hear the matter, the Union applied again to the Board for an amended order to provide that the employees were to be reinstated unconditionally. Blackwoods applied for, and received, an interim order in Chambers, staying the Board’s processes. A five-person panel of the Court confirmed the decision of the Chambers judge.

Culliton J.A., as he then was, writing for the Court, stated at p. 533 (D.L.R.): … While the Labour Relations Board is given the right to rescind or vary its own orders, that right is, as are other rights in the Act, subject to the exercise of the jurisdiction of a superior Court in proper certiorari proceedings. Nor can I agree that the application to amend the order of February 1st is a wholly new and independant inquiry. The order sought to be amended is that which is before the Court in the certiorari proceedings.

The parties concerned in the amending application are the very parties who either are attacking or supporting the original order in such proceedings. It is evident that the amendment, if granted, would substantially alter the rights of the parties as they existed at the time the application to quash the order was made. The application to amend the order is not only not a new or independent inquiry but is so inextricably associated and linked with the primary order as to be a part of these proceedings, the validity of which is before the Court for determination .

In considering the application to quash the order of February 1st, the Court is exercising its inherent jurisdiction. In the exercise of that jurisdiction the Court has not only the right, but the duty, to preserve the rights of the parties as nearly as possible in statu quo until the merits can be fully tried. In granting the interim stay and continuing the same until the final disposition of the original application, the Court is doing that which it has a right to do and, under the facts disclosed herein, a duty to do.

I think it is abundantly clear, that to hold otherwise, would be a surrender by the Court of its rights and jurisdiction and could only result in confusion and uncertainty in every application of this nature, a result most undesirable and detrimental to all bona fide litigants. [emphasis added] [ 21 ] Based on this authority, Wal-Mart submits that the appeal before the Court and the application before the Board are so intertwined as to compel intervention.

Wal-Mart argues that the Union has placed the decision of the Board that the first contract application be a parallel process with the decertification in issue in this appeal. This means, according to Wal-Mart, that the preliminary process issue must be determined before the merits are dealt with by the Board. Accordingly, Wal-Mart asks for a stay to preserve the status quo. [ 22 ] As Mills J. indicated, the “timing” issue, which is before the Court, “is tied up” with the Board’s ruling under LRB 166-10, but the process leading to a first agreement is not.

This is also the view the Board has taken of the matter in its December 6 decision: [37] In coming to this conclusion, we note that the proceedings before the Court of Appeal do not deal with the substances of the application currently before this Board. For example, we note that none of the proceedings before the Court of Appeal involve the question of whether or not this Board should intervene pursuant to s. 26.5 (or, if we do so, upon what terms). Also, the issue of when we should hear the Union ’s first collective agreement is also not, strictly speaking, before the Court of Appeal.

Rather the issue before that Court is the timing of the representative vote relative to that application (and other applications before the Board); not when the Union’s first collective agreement ought to be heard, per se . By way of example, if the Union is successful in its appeal, proceeding now with the second stage of the within application will not likely produce an injurious result as we will be proceeding with the very application that the Union argues should be determined first.

On the other hand, if the Employer is successful in its cross-appeal, proceeding now with the second stage will also not likely produce an injurious result, as the ballots from the pre-hearing vote conducted by the Board are available to be counted and are unaffected by the within application.

If neither party is successful, proceeding now will also not likely produce an injurious result because this Board never said in its procedural rulings that the members of the bargaining unit should not know the results of the Union’s first collective agreement application before being asked to decide the representative question; our ruling was that the representative question should not be delayed merely to obtain those results. [ 23 ] In Blackwoods, the Board amended the very order that was before the Court. That is not the situation in this case.

The first agreement application will proceed regardless of the outcome in the Court. [ 24 ] Since Blackwoods Beverages , when determining whether to impose a stay of proceedings, judges in Chambers have described the exercise in terms of: (

i) considering the “prejudice” to the respondent (see: Knutson , supra at para. 5 ); and, (ii) weighing the “equities” (see: Neumann , supra at para. 1 ). In Darwall Enterprises , Lane J.A. applied the test for the lifting of a stay of execution to the imposition of a stay of proceedings: [9] … The underlying principle is to prevent injustice and to ensure the result is fair and equitable to all sides. The purpose is to

minimize prejudice pending the appeal and to balance the competing interests of the successful respondent who ought not to be deprivedof the benefits of its success against the interests of the appellant who ought not to be penalized for exercising its undoubted right ofappeal, which if successful ought not to be nugatory. [25] In this case, Wal-Mart is saying the Board should be prevented from hearing the s. 26.5 application until this Court determineswhether the rescission application should have proceeded as a parallel process to the s. 26.5 application.

But this is really the Union’sargument, and the basis of the Union’s appeal. A change in the timing of the two processes will benefit the Union only. It is significantthat Wal-Mart has not demonstrated or even argued that it will be prejudiced if the Board proceeds as planned. On the other hand, theUnion has maintained throughout that it has been significantly prejudiced by the delay in obtaining a first agreement (see: the Board’sDecember 6 decision and the affidavit of Darren Kurmey dated January 9, 2012 and filed in this application). While Wal-Mart statedthat Mr.

Kurmey’s affidavit is speculative, I note that the affidavit supports the finding of the Board. [26] For all of these reasons, I have concluded that I should not impose a stay of proceedings in relation to next week’s hearing. [27] There are two tag-ends. Late in the day, I directed counsel’s attention to Manitoba (Attorney General) v. Metropolitan Stores (MTS) Ltd., (SCC), [1987] 1 S.C.R. 110, wherein the Courtsustained the decision of a chambers judge, declining to stay a first collective agreement application, pending a Charter challenge to thegoverning legislation.

While time constraints have not permitted either counsel or the Court to examine fully the implications of thisdecision, I note that the Supreme Court considered the potential prejudice that imposing, or failing to impose a collective agreement,could have on both the Union and the Employer in the event that the legislation empowering such an imposition was found to be inviolation of the Charter, and nonetheless sustained a decision, permitting the Board to proceed. [28] The second tag-end relates to the fact that the Board’s December 6 decision was not challenged by way of judicial review.

I haveheard no argument on the conceptual difficulties that this poses and make no ruling on the issue. VII. Conclusion [29] For all of these reasons, I would dismiss the application. The Union will have its costs in the usual way. DATED at the City of Regina, in the Province of Saskatchewan, this 13th day of January, A.D. 2012. “Jackson J.A.”______________________ Jackson J.A.