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 decertification 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UFCW’s certification Order was rescinded on August 21,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.