Supreme Court refuses to hear Wal-Mart appeal

High court refuses to overturn decision by Saskatchewan Court of Appeal that ordered Wal-Mart to hand documents over to labour relations board in ongoing dispute over unionization of store

The Supreme Court of Canada has refused to hear an appeal by Wal-Mart Canada that challenged the power of the Saskatchewan Labour Relations Board, the province’s Trade Union Act and an earlier ruling by the Saskatchewan Court of Appeal.

Wal-Mart filed an appeal of the ruling with the Supreme Court on Jan. 17, 2005, after the Saskatchewan Court of Appeal ruled the province’s labour board was within its rights when it ordered Wal-Mart to hand over company materials that outlined anti-union strategies.

The Supreme Court of Canada handed down its decision on April 7.

The United Food and Commercial Workers (UFCW), which is trying to organize workers at a Weyburn, Sask. store, said it was pleased with the ruling.

“The Supreme Court decision has confirmed the integrity and credibility of the (Saskatchewan Labour Relations Board),” said Paul Meinema, president of UFCW Canada Local 1400. “And we’re glad the Weyburn hearings, which started almost a year ago, can get rolling again.”


In the summer of 2004, the Saskatchewan Court of Queen’s Bench ruled that Wal-Mart did not have to hand over company documents as ordered by the Saskatchewan Labour Relations Board. The board was hearing arguments over a unionization drive at the Weyburn store.

The union had applied to the board for an order certifying it to be the representative of certain employees of Wal-Mart for the purposes of collective bargaining. Wal-Mart filed a reply stating that the bargaining unit applied for was not an appropriate unit.

In addition, a group of employees filed a reply opposing the union’s application and filed with it a petition signed by some employees in the proposed unit. Some of these employees filed unfair labour practice applications, claiming the union had used threatening, intimidating or dishonest conduct in an attempt to coerce them into joining the union.

The union said the employees’ applications were made as a result of influence or interference or intimidation by Wal-Mart and that they should be dismissed. The board directed that all of the applications be heard at once.

The UFCW was seeking to have a large number of internal documents handed over, including one titled “Wal-Mart: A Manager’s Toolbox to Remaining Union Free.” It also wanted the employee handbook, information given to new hires and communication between Wal-Mart and its managers about the “store within a store” method of management and other policies concerning management operations and the powers and duties of department managers.

The board ordered the company to hand over the documents. Wal-Mart took the case to the Saskatchewan Court of Queen’s Bench. It found a sympathetic ear in Justice George Baynton, who was critical of the labour board and how it was handling the Wal-Mart case.

Wal-Mart maintained the union was on a fishing expedition, and that the documents it was seeking were broad-based company material that were completely irrelevant to the labour board hearing.

Justice Baynton agreed, and had harsh words for the labour board.

“In the case before me, a dispassionate observer could well conclude that the impartiality of the board has been compromised by the manner in which it has permitted the UFCW to conduct and direct the hearing process,” said Justice Baynton. “It appears that the role of the board was often restricted in enforcing the demands made by the UFCW and that it, rather than the board, was controlling the course the hearing took. Seldom, as in the case before me, is a dispute or issue so one-sided that one party is successful in all of its applications while the other is successful in none.”

On July 23, 2004, the Court of Queen’s Bench ruled the board should not have asked for the documents without first determining if they were relevant to the hearing.

The Saskatchewan Court of Appeal’s decision

The union appealed the ruling by the Saskatchewan Court of Queen’s Bench. On Nov. 23, 2004, the Saskatchewan Court of Appeal handed down its decision, siding with the union and reversing Justice Baynton’s ruling.

The Court of Appeal said the lower court erred in finding that the board should have determined whether or not the documents were relevant before issuing the order for Wal-Mart to produce them.

“This is not to say that any court or tribunal is entitled to issue or to enforce subpoena compelling production of irrelevant or privileged documents,” the court said. “If that is done, the injured party has the same recourse as was resorted to by the employer in this case: to move to have the tribunal quash the subpoena or to rule on the issues of relevance of privilege in respect of the documents which it does not believe it should be compelled to produce.”

It said the proper procedure, when there is a requirement to produce documents and there is a genuine dispute as to their relevance or as to whether they are privileged, is to have the documents produced so the tribunal charged with determining their relevance will have them available for examination.

“This is the procedure the board intended to follow,” the Court of Appeal said. “If any of the documents then turned out to be irrelevant, the privacy interest of the owner would be protected as the documents would not then be provided to the party making the demand, that is, there is no disclosure of the document to the union.”

The Court of Appeal said it would be otherwise if the documents demanded were so plainly irrelevant that there was no need for their inspection prior to any ruling.

“But the board made it clear from comments during the argument that it thought that the union had made out a case of at least ‘likely relevance,’ a term coined by the employer’s counsel during the hearing,” the court said. “The board said that the documents might be relevant to the issue of whether or not the unfair labour practice applications brought by the employees had been made as a result of influence, interference or intimidation by the employer.”

Court of Appeal critical of lower court’s comments

The Court of Appeal looked at the harsh comments made by Justice Baynton, of the Saskatchewan Court of Queen’s Bench. As noted above, Justice Baynton said an impartial observer might conclude the impartiality of the board had been compromised because the union succeeded in all it demands and the employer in none.

“The comment was unnecessary given that lack of partiality was not raised as an issue by either party or referred to by anyone during the hearing,” the Court of Appeal said. “The board was left with no means to defend itself against the accusation. In our opinion, the comment should not have been made.”

It also chastised comments Justice Baynton made about a section of the The Trade Union Act. He said if s. 9 has the effect of restricting freedom of expression between an employee and an employer that does not constitute interference or coercion, then s. 9 may well violate the Charter of Rights and Freedoms.

Justice Baynton suggested the legislation was out of touch with reality. Since he declined to make any ruling on the issue, the Court of Appeal called his comments “gratuitous” and said they should not have been made.

What happens now

It appears that Wal-Mart will now have to hand over the documents in question to the Sasatchewan Labour Relations Board. The board will then determine whether or not the documents are relevant.

“Today’s decision by the Supreme Court to deny Wal-Mart’s leave to appeal means the (labour board’s) order stands and that Wal-Mart could be found in contempt if it fails to produce the subpoenaed materials when the Weyburn hearings recommence,” the UFCW said in a press release.

For more information see:

Wal-Mart Canada Corp. v Saskatchewan (Labour Relations Board), 251 Sask. R. 114, 2004 CarswellSask 516, 105 C.L.R.B.R.(2d) 291, 2004 SKQB 324, 19 Admin. L.R. (4th) 120 (Sask. Q.B.)

Wal-Mart Canada Corp. v Saskatchewan (Labour Relations Board), 247 D.L.R. (4th) 30, 2004 CarswellSask 763, 2004 SKCA 154 (Sask. C.A.)

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