Verdient Foods Inc. Prospective Appellant (Applicant/Respondent) v. United Food and Commercial Workers,, 2019 SKCA 137

Court of Appeal for Saskatchewan Docket: CACV3515 Citation: Verdient Foods Inc. v United Food and Commercial Workers, Local 1400 , 2019 SKCA 137 Date: 2019-12-17 Between: Verdient Foods Inc. Prospective Appellant (Applicant/Respondent) And United Food and Commercial Workers, Local 1400 and Saskatchewan Labour Relations Board Prospective Respondent (Respondent/Applicant) Before: Leurer, J.A. (in Chambers) Disposition: Application granted Written reasons by: The Honourable Mr.

Justice Leurer On Application From: 2019 SKQB 288 , Regina Application Heard: December 12, 2019 Counsel: Katherine Melnychuk for the Appellant Heath Smith for the Respondent Leurer J.A. I. Introduction [ 1 ] Verdient Foods Inc. [Verdient] seeks leave to appeal an order of a judge of the Court of Queen’s Bench arising from a fiat dated November 6, 2019: Verdient Foods Inc. v United Food and Commercial Workers, Local 1400 , 2019 SKQB 288 [ Chambers Decision ] .

The issue Verdient seeks to bring to this Court relates to a matter of practice in connection with labour relations in this province and, in particular, practices relating to the counting of votes of workers in the context of a proposed union certification under The Saskatchewan Employment Act , SS 2013, c S-15.1 [ Act ]. [ 2 ] For the reasons that follow, I grant Verdient leave to appeal the Chambers Decision . II.

Background [ 3 ] In February 2019, United Food and Commercial Workers, Local 1400 [Union] applied for bargaining rights on behalf of certain employees of Verdient in accordance with the Act . [ 4 ] A secret-ballot vote of Verdient employees was conducted in early 2019. The ballots were mailed to, and have since then been held by, the Saskatchewan Labour Relations Board [Board] pending the determination of the appropriate bargaining unit.

Once the bargaining unit has been sorted out, the question of certification will be determined by a counting of the ballots submitted by employees who, at the time of the voting, fell within the bargaining unit. [ 5 ] However, the Union and Verdient disagree as to the scope of the appropriate bargaining unit. In short, Verdient has been seeking to exclude certain positions from the bargaining unit proposed by the Union.

A hearing proceeded before the Board in relation to this issue. [ 6 ] By way of a decision dated July 29, 2019, the Board accepted the Union’s proposed amended bargaining unit description and rejected Verdient’s proposed exclusions: United Food and Commercial Workers, Local 1400 v Verdient Foods Inc. (29 July 2019) Regina, LRB 040-19 [ Board Decision ]. The Board ordered as follows: [121] The Board makes the following Orders pursuant to sections 6-11, 6-12, and 6-103 of the Act : a.

That the following unit qualifies as an appropriate bargaining unit: All employees employed by Verdient Foods Inc. in Vanscoy, Saskatchewan excluding the General Manager, Operations Manager, QA Coordinator, Controller, Plant Supervisor, Maintenance Coordinator, Accounting Clerk, Supervisors, and any employee above the rank of manager. b.

That the ballots held in the possession of the Board Registrar pursuant to the Direction for Vote issued March 4, 2019 in the within proceedings be unsealed and the ballots contained therein tabulated in accordance with The Saskatchewan Employment (Labour Relations Board) Regulations. c. That the results of the vote be placed into Form 21 and that form be advanced to a panel of the Board for its review and consideration. (Emphasis in original) [ 7 ] Verdient immediately filed an originating application for judicial review seeking to quash the Board Decision and for an interim stay of the counting of the ballots.

However, Verdient was advised by an officer of the Board that, notwithstanding this application, the Board would be unsealing and tabulating the ballots on July 31, 2019. As a consequence, Verdient applied on an ex parte

basis to the Court of Queen’s Bench for an order staying the tabulation of the vote by the Board while this judicial review proceeded.Verdient explained the basis for this request in a memorandum of argument, as follows: 15. It is further submitted that irreparable harm would result if the stay was not granted. If the votes are counted prior to a judicialreview application, the relationship between the Applicant/Employer and its employees would be undermined. Assuming theApplicant/Employer is successful on its judicial review application, certain votes will not be counted.

However, if the votes were countedbefore the judicial review application and it is later determined that the Board’s decision should be reversed, those votes should beremoved from the count. It will then become apparent what the votes of the employees in the excluded positions were, which aresupposed to be anonymous.

Therefore, if a stay is not granted, there is a risk that the relationship between management and the employeeswould be strained as a result of the votes being disclosed. [8] The Queen’s Bench judge before whom Verdient’s application was brought wrote in a single sentence fiat that “[t]he courtaccepts the reasoning stated in the Applicant’s brief of law”: Verdient Foods Inc. v United Food and Commercial Workers, Local 1400 (31July 2019) Regina, QBG 2023/2019 (Sask QB).

In the result, Verdient was granted an order dated July 31, 2019 that the Board nottabulate the ballots “pending further Order” [ex parte order]. [9] Verdient’s application for judicial review has yet to be heard. The delay has arisen because the parties have been waiting forthe transcript of the proceedings before the Board to be finalized. I was advised at the hearing of this application the transcript has still notbeen completed and the application for judicial review stands adjourned sine die returnable on 14 days’ notice once the transcript has beenprepared.

Of course, even if the application for judicial review is heard in the near future, the parties do not know when a decision will berendered or if the unsuccessful party will seek to appeal the outcome of it. [10] In the meantime, the Union applied to the Court of Queen’s Bench for an order setting aside the ex parte order that the Boarddelay the tabulation of the employee ballots. [11] On November 6, 2019, a judge of the Court of Queen’s Bench issued the Chambers Decision, granting the Union’s application.The result was an order that the “interim stay” granted pursuant to the ex parte order be lifted and that the Board “may proceed to tabulatethe ballots” [lift stay order].

Verdient’s proposed appeal relates to the lift stay order. [12] Verdient’s application first came before my colleague, Whitmore J.A., who, on November 8, 2019, ordered that the lift stayorder be stayed (with the effect that the ex parte order remains in effect) until Verdient’s application now before me is heard anddetermined. III. Issues [13] Verdient’s application raises two issues: (

a) Should Verdient be granted leave to appeal the lift stay order? (

b) If leave to appeal is granted, should a stay of the lift stay order remain in place pending the appeal? IV. Analysis A. Should Verdient be granted leave to appeal the lift stay order? [14] The parties agree that Verdient’s application for leave to appeal is tested against the criteria specified by this Court inRothmans, Benson & Hedges Inc. v Saskatchewan, 2002 SKCA 119 at para 6, 227 Sask R 121 [Rothmans].

In order to be granted leave,the proposed appeal must be: (a) “of sufficient merit to warrant the attention of the Court of Appeal”; and (b) “of sufficient importance tothe proceedings before the court, or to the field of practice or the state of the law, or to the administration of justice generally, to warrantdetermination by the Court of Appeal” (emphasis in original). Justice Cameron further identified a “subset of considerations”, which I willrefer to in the course of these reasons. [15] The bar for testing merit is not set high.

In Rothmans, Cameron J.A. posited the consideration to be whether the proposedappeal is “prima facie frivolous or vexations” or “prima facie destined to fail in any event, having regard to the nature of the issue and thescope of the right of appeal, for instance, or the nature of the adjudicative framework, such as that pertaining to the exercise ofdiscretionary power” (at para 6). [16] The Chambers judge tested the Union’s request to set aside the ex parte order against the criteria set out in RJR-MacDonaldInc. v Canada (Attorney General), (SCC), [1994] 1 SCR 311 [RJR-MacDonald].

RJR-MacDonald invites considerationof three factors when assessing whether a stay should be granted, which he summarized as (

a) the existence of “a serious question to betried”; (b) “irreparable harm if a stay is denied”; and (c) “the balance of convenience, taking into account the public interest, favoursgranting the relief” (at para 21). The Chambers judge observed that the “arguments focused more on the questions of irreparable harm andbalance of convenience” (at para 22).

Verdient does not suggest that the Chambers judge misoriented himself by deciding the stay issuewith reference to the three-part RJR-MacDonald test. [17] It also appears from the Chambers Decision that the Chambers judge understood and considered Verdient’s arguments. Aftersummarizing the positions taken by both the Union and Verdient, the Chambers judge stated that “[w]hile each argument has merit, I

prefer the arguments of the Union to those of the Employer.” The Chambers judge then walked through the three considerations found in RJR-MacDonald , stating as follows: [25] … The potential harm to Verdient from tabulation of ballots involves a number of variables and seems unlikely to actually occur. I am not convinced that the potential harms justify the continued delay or outweigh the reasonable expectation of the Union and the employees to learn of the outcome of the vote. [26] There is also the public interest to consider.

The Legislature has, through The Saskatchewan Employment Act , provided a process for creation of bargaining units, including a vote of employees by secret ballot. This statutory process is overseen by the [Board], which has expertise in labour relations and may be trusted to conduct that process fairly and carefully. This process should not be lightly interfered with. [27] The courts are as concerned with delay as defeat of legal rights.

I accept that further delay interferes with the statutory scheme and may cause harm both to the Union and to the public interest. [28] Returning to the three factors, I am satisfied that there is a serious question to be considered on the application for judicial review, being whether certain positions should be excluded from the bargaining unit. [29] I am not persuaded that Verdient would suffer irreparable harm if the stay ends and the votes are counted. Workplace conflict is a perennial problem for managers and workers alike. These conflicts occur and are usually addressed and resolved.

The fact that some conflict might result from the union drive, including divisions resulting from the vote, does not strike me as likely to constitute irreparable harm. [30] Nor am I persuaded that the balance of convenience favours continuing the stay. On the contrary, as between the parties, I think it more likely that the Union will suffer the greater harm if the stay is continued. Further, there is, as discussed above, the question of the public interest apart from the private interests of the parties.

The public interest in allowing the statutory process to be followed also favours ending the stay. [ 18 ] Flowing from all of this, the Union points to the applicable standard of review and argues that Verdient’s case on appeal is weak. It asserts that the decision by the Chambers judge involved the exercise of discretion and that the Chambers judge “did not err in principle and did not disregard material facts, no injustice has resulted form his decision, and there is no evidence that [he] failed to act judicially or abused his discretion”.

Verdient acknowledges that the lift stay order “was discretionary in nature, and therefore will be subject to a deferential standard of review”. However, it posits what it says are errors that would invite this Court to interfere with the exercise of discretion by the Chambers judge. [ 19 ] Verdient’s draft notice of appeal alleges three specific errors on the part of the Chambers judge: (

a) the “[f]ailure to properly consider, interpret, and/or apply the relevant jurisprudence, or alternatively, failure to provide adequate reasons for disregarding said jurisprudence”; (

b) the “[f]ailure to properly consider the irreparable harm that is likely to occur if the interim stay is lifted, including the public interest in ensuring that employees’ votes remain confidential”; and (

c) the “[f]ailure to provide adequate reasons for disregarding the public interest in protecting the confidentiality of employees’ votes”.

In its memorandum of law, Verdient integrated all three of these proposed grounds of appeal into the proposition that the Chambers judge “failed to properly consider Verdient’s chief argument”, which it cast as follows: 23. … If the votes are tabulated prior to the hearing of the Originating Application for Judicial Review, and Verdient is subsequently successful on its appeal such that certain positions are excluded from the bargaining unit, the parties will be able to discern which employees voted for the Union by a simple comparison of the vote tallies.

It is therefore in the interest of both parties, and especially the employees, to ensure that individual votes are kept confidential throughout this process. [ 20 ] The Union’s position is that the grant or refusal of a stay of proceedings is always heavily fact-dependant. However, the exercise of discretion is often subject to more refined principles than the simple three-part RJR-MacDonald criteria.

In this regard, the case books are replete with appellate-level guidance respecting the exercise of the discretion that exists in connection with stays of proceedings, and, closely aligned to this, the grant and refusal of injunctions. [ 21 ] Verdient points to three previous decisions of judges of the Court of Queen’s Bench of Saskatchewan which it says are directly opposed to the reasoning offered by the Chambers judge in this case: Wal-Mart Canada Corp. v United Food and Commercial Workers, Local 1400 , 2009 SKQB 127 [ Wal-Mart #1 ]; United Food and Commercial Workers, Local 1400 v Wal-Mart Canada Corp. , 2011 SKQB 266 [ Wal-Mart #2 ]; and Affinity Credit Union v United Food and Commercial Workers, Local 1400 , 2014 SKQB 198 , 449 Sask R 180 [ Affinity ].

In each of these cases, the counting of votes was delayed while judicial review proceeded. In Wal-Mart #1 and Affinity , the application for judicial review had been launched by the employer. In Wal-Mart #2 , the application for judicial review was brought by the union. Each of these cases contain dicta that contrasts with the conclusions reached by the Chambers judge in this case. [ 22 ] The Union says that these cases are distinguishable because each involved companion allegations of unfair labour practices.

This distinction, or others, may well carry the day when Verdient’s appeal is argued before a panel of this Court. However, at this procedural juncture, it is not for me to make this level of assessment. Based on the existence of this other case law alone, I am satisfied that Verdient has presented arguments of sufficient merit to justify the grant of leave to appeal. [ 23 ] The Union argues that a grant of leave would be “apt to unduly delay the proceedings or be overcome by them and rendered moot”, a consideration that Cameron J.A. also identified in Rothmans as relevant to the “merit” consideration.

The specific suggestion made by the Union is as follows: 26. The working women and men at Verdient applied for collective bargaining rights in February. After ten (10) months, they still have not received any indication of whether their efforts were successful. The Union submits that, should the court decide to hear the Employer’s proposed appeal, the results of the certification vote will be unnecessarily delayed, causing prejudice to the Union.

[ 24 ] However, in the ordinary course, votes are not counted until the proposed bargaining unit is settled. Here, this is up in the air because of the unargued application for judicial review. Therefore, nothing seems out of the ordinary if the counting of ballots is deferred until it is known whose votes will count. [ 25 ] The final consideration identified in Rothmans relating to “merit” is whether the proposed appeal is “apt to add unduly or disproportionately to the cost of the proceedings” (at para 6).

The Union argues that “a further appeal, related to the matter of the certification vote tabulation, will unduly amplify the costs already incurred in the matter”. The issue was of sufficient importance for the Union to seek to set aside the ex parte order. This appeal is a continuation of that process. Given that both parties are engaged in the certification issues, I do not see the fact that an appeal will result in both sides incurring costs as a reason to deny leave in the present circumstances. [ 26 ] I then turn to the question of importance.

On this issue, Cameron J.A. stated as follows in Rothmans (at para 6 ): Second : Is the proposed appeal of sufficient importance to the proceedings before the court, or to the field of practice or the state of the law, or to the administration of justice generally, to warrant determination by the Court of Appeal? • does the decision bear heavily and potentially prejudicially upon the course or outcome of the particular proceedings? • does it raise a new or controversial or unusual issue of practice? • does it raise a new or uncertain or unsettled point of law? • does it transcend the particular in its implications? [ 27 ] Verdient argues that, given the labour relations issues at stake, this appeal is important to it and its employees and could be of import in other cases.

The Union submits that the appeal “is rooted in the particulars of the case, and has no broader implications” and does not involve any “outstanding question of law”. This may prove to be an accurate statement. [ 28 ] I am persuaded that this appeal is important not only to the litigants and the employees of Verdient, but also has the potential to impact other cases. Based on the decisions cited to me, this is the fourth occasion on which this issue, or at least one akin to it, has arisen in a labour relations context in this province.

Cameron J.A. made clear in Rothmans that the considerations he identified “constitute conventional considerations rather than fixed rules” (at para 6). I am mindful of the Union’s position, accepted by the Chambers judge, that the prolonging of any element of the certification process jeopardizes efforts by workers to collectively bargain. However, the votes cannot be operative until the proposed bargaining unit is finally settled. Because of the application for judicial review, this is up in the air. The delay in the union certification is, at this point, attributable to the judicial review application.

The stay issue is interlocutory to that. I am not convinced that any interest relating to interference with workers’ collective bargaining rights are jeopardized by affording this Court an opportunity to look at the issues raised by Verdient’s proposed appeal. B. If leave to appeal is granted, should a stay of the lift stay order remain in place pending the appeal? [ 29 ] It would render Verdient’s appeal moot if the operation of the lift stay order was not itself stayed pending the hearing of its appeal.

For this reason, I order that the lift stay order be stayed until the hearing of Verdient’s appeal (with the effect that the ex parte order remains in effect). The panel that hears Verdient’s appeal can assess, following the hearing of argument, whether to continue the stay if judgment is reserved on that day. V. Conclusion [ 30 ] For the reasons given above, I grant Verdient’s application for leave to appeal the Chambers Decision and order that the operation of the lift stay order be stayed until the hearing of Verdient’s appeal.

Costs of this application are reserved to the panel that hears the appeal. “Leurer J.A.” Leurer J.A.