Meeting of the Saskatchewan Administrative Tribunals Association Presentation by Steven D. Schiefner Saskatchewan Labour Relations Board

Lessons Learned from UFCW v. Wal-Mart 10 Years of Litigation Before the Board and in the Courts

Background In 2004, UFCW attempted to organize the employees of Wal-Mart Canada Corp. in Saskatchewan Weyburn North Battleford Moose Jaw

By the Numbers In total, 31 applications were filed with the Board by the parties: 18 applications by UFCW 2 applications by Wal-Mart 11 applications by the employees of Wal-Mart More applications were filed with the Courts.

Further Numbers The Board has rendered 19 written decisions involving the parties: 7 decisions written by James Seibel 1 decision written by Kenneth Love 11 decisions written by Steven Schiefner

Judicial Review The Board’s decisions have been judicially reviewed as follows: 12 applications reviewed by the Court of Queen’s Bench 7 applications reviewed by the Saskatchewan Court of Appeal 3 applications for leave to appeal at the Supreme Court of Canada

Partial History of Events Union gathered support in spring of 2004 The Board certified UFCW to represent the employees of Wal-Mart in Weyburn on December 4, 2008 (4 years and 8 months later) The Board’s Order was stayed by the Court of Queen’s Bench on April 6, 2009 (4 months later) The Board’s Order was restored by the Court of Appeal on October 14, 2010 (nearly 2 years after original issuance) Board’s Order was restored during the open period An application to de-certify the Union was filed by Mr. Gordon Button following the Court of Appeal’s Decision A representational vote was conducted for the de- certification application was conducted in December of 2010

Further History of Events On June 23, 2011, the Board ordered the ballots from the December 2010 vote counted. The Union sought judicial review of the Board’s decision to count, which was granted, in part. Thereafter, the Court of Appeal restored the Board’s decision. On August 15, 2013, legal proceedings came to a conclusion with the Supreme Court of Canada dismissing the Union’s leave application. UFCW’s certification Order was rescinded on August 21, 2014.

Lessons Learned 1.Understand the inequitable effects associated with delay in your proceedings. Major turnover of employees at workplace. Majority of employees who were working at time union began organizing were no longer working at store by the time the union was certified at the Weyburn store. Original Certification by Board – Total delay = 4 years and 8 months. Restored by Court By Court of Appeal – Total delay = 6 years and 6 months. Union’s certification Order was only in force for 4 months. Leave to appeal denied by S.C.C. – Total delay = 9 years and 3 months.

Lessons Learned, continued 2.Reviewing Courts now reluctant to review interim or non-final decisions of administrative tribunals. 3.Court set forth appropriate procedures for pre-hearing production of documents and issuance of Subpoena

Lessons Learned, continued 4.A party that desires to participate in proceedings before the Board must complete and file a Reply. 5.Definition of Company Domination. 6.Application of Doctrine of Mootness. Use Boroski v. AG of Canada Example, if interim Order grants all necessary relief, then Board can find issues are moot.

Lessons Learned, continued 7.Temporal application of changes in legislation to pending applications before the Board. What does legislation say. Purely procedural vs. substantive changes. Depends on stages of proceedings change in legislation occurs After a hearing is conducted on an application. After filing an application but before hearing is done. Before an application is filed.