Docket: CACV2590 United Food v. Commercial Workers, Local 1400, 2014 SKCA 114

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2014 SKCA 114 Date: 2014-11-07 Between: Docket: CACV2590 United Food and Commercial Workers, Local 1400 Appellant (Respondent) - and - Affinity Credit Union Respondent (Applicant) - and - Saskatchewan Labour Relations Board Respondent (Respondent) Before: Ottenbreit J.A. (in Chambers) Counsel: Heather Jensen for the appellant John R. Beckman, Q.C., for Affinity Credit Union Application:

From: 2014 SKQB 241 Heard: October 29, 2014 Disposition: Application granted Written Reasons: November 7, 2014 By: The Honourable Mr. Justice Ottenbreit Ottenbreit J.A. I.

INTRODUCTION AND BACKGROUND [1] The United Food and Commercial Workers, Local 1400 (“UFCW”) has filed an appeal of the decision of the Court of Queen’sBench dated August 4, 2014, which quashed certain decisions of the Saskatchewan Labour Relations Board (“SLRB”) respecting acertification application by UFCW seeking to represent certain employees at Affinity Credit Union (“Affinity”). [2] This is an application by UFCW for an order restricting public access to two affidavits which are contained in Volume 2 of theAppeal Book, UFCW’s unredacted factum, Affinity’s unredacted factum and restricting any reference to certain information (the“information”) contained in these affidavits, which are referenced in the parties’ facta and arguments filed on this appeal and application.UFCW also seeks an order requiring Affinity to file a redacted factum. [3] UFCW argues that the disclosure of the information to the public may result in the disrepute of the administration of justice as itpertains to labour relations in Saskatchewan and the social values associated with freedom of association and that such disclosureundermines the public’s confidence in the SLRB. [4] Affinity argues that the information should remain public because the public has a right to know the proceedings of the SLRBand, in any event, the information plays a

part in its response to the appeal of the Queen’s Bench decision filed by UFCW. Before theQueen’s Bench, Affinity successfully argued that the investigation by the SLRB respecting the certification application was done inhaste and without the appropriate compliance with The Trade Union Act, RSS 1978, c T-17. [5] In order for me to properly understand the factual bases for this application, the parties disclosed to me the nature and extent ofthe information in their written material. There is reference in the facta filed on this appeal to the information. UFCW has also filed afactum that redacted the information.

Affinity has not filed a redacted factum. [6] The information concerns and refers to certain acts or omissions of the administrative staff of the SLRB in its handling of certaininformation involved in the certification application prior to any decision by the SLRB. The information is set out in two affidavits whichwere filed in the Court of Queen’s Bench on the judicial review application. One of those affidavits appends an exhibit which, ifdisclosed to the public, will likely prejudice third parties. Neither the decision of the SLRB or of the QB Chambers judge mentions theacts or omissions. II.

JURISDICTION [7] I have jurisdiction under s. 20(1) of The Court of Appeal Act, 2000, SS 2000, c C-42.1, to hear and dispose of an applicationwhich is incidental to an appeal and does not involve a decision on the merits. The applicable law regarding sealing orders and ordersrestricting the public’s access to court documents is set forth in 101114386 Saskatchewan Ltd. v Saskatchewan (Financial and ConsumerAffairs Authority), 2013 SKCA 122, 427 Sask R 25. It is the two-branch test known as the Dagenais/Mentuck test derived fromDagenais v.

Canadian Broadcasting Corp., (SCC), [1994] 3 SCR 835, and R v Mentuck, 2001 SCC 76, [2001] 3 SCR442. [8] UFCW must establish the Dagenais/Mentuck prerequisites before I can restrict the right to disseminate information with respectto proceedings in this Court: (

a) such an order is necessary in order to prevent a serious risk to the proper administration of justice because reasonably alternativemeasures will not prevent the risk; and (

b) the salutary effects of the publication ban outweigh the deleterious effects on the rights and interests of the parties and the public,including the effects on the right to free expression, the right of the accused to a fair and public trial, and the efficacy of theadministration of justice. III. ANALYSIS [9] I have thoroughly reviewed the factual background concerning the acts or omissions of the SLRB in this matter. It appears thatthe acts or omissions were inadvertent and were caught before any prejudice resulted to third parties.

Nevertheless, the nature of thoseacts or omissions and the fact that they occurred at all is highly significant in the context of the statutory regulatory and administrativeprocedures, which ensure the smooth running of the administration of labour relations in this province and promote public confidence inthe administration that results from those procedures.

[ 10 ] I observe that these acts or omissions were mentioned neither in the decision of the SLRB or in the decision of the Court of Queen’s Bench which is being appealed. This suggests, without deciding the matter, that they may not play as substantial a role in this appeal as Affinity argues and that the public will not be unreasonably deprived of knowledge of the major issues at play in the appeal if I grant the application of UFCW.

A sealing order will not prevent Affinity from making any arguments based on the acts or omissions on this appeal and will not otherwise prejudice Affinity. [ 11 ] The Dagenais/Mentuck criteria have been met in this application.

I am satisfied on all the evidence before me that an order restricting public access to the information is necessary to prevent serious risk to the proper administration of justice in respect of the SLRB by disclosure of the information, and that reasonably alternative measures will not prevent that risk. [ 12 ] Moreover, I am satisfied that the salutary effects of any order restricting public access outweighs the deleterious effects on the rights and interests of the parties and public, including the effects on the right to free expression and the efficacy of the administration of justice. [ 13 ] I am satisfied that Volume 2 of the Appeal Book, which contains only the two affidavits, should not be available to the public.

The factum of UFCW shall not be available to the public; however, a redacted copy filed shall be open to public inspection. [ 14 ] The brief of argument of Affinity on this application which contains references to the information shall not be available to the public. However, a copy of that brief shall be made available to the public with the entirety of paras. 4, 5 and 7 redacted. Paragraphs 7, 8, 23, 27 and 29 of Affinity’s factum also contain references to the information. These paragraphs shall be redacted in their entirety. The Registrar is directed to create a copy of those documents with the redactions.

There is also a letter from counsel for UFCW dated September 26, 2014, regarding the application which contains reference to the information. This will not be made available to the public. [ 15 ] The order redacting these various documents, and restricting the public’s access to the un-redacted documents and the letter, will remain in effect until the panel hearing the appeal determines otherwise. DATED at the City of Regina, in the Province of Saskatchewan, this “7 th ” day of November, 2014. “Ottenbreit J.A.” Ottenbreit J.A.