Saskatoon Office
10th Floor
Sturdy Stone Building
122 3rd Avenue North
Saskatoon, Saskatchewan
S7K 2H6
Regina Office
1600 – 1920 Broad Street
Regina, Saskatchewan
S4P 3V2
(306)787-2406 (telephone)
(306)787-2664 (fax)

ON APPLICATIONS UNDER SECTION 6-4, 6-58 OR 6-59 OF THE SASKATCHEWAN EMPLOYMENT ACT

Introduction

The purpose of this guide is to provide parties representing themselves with information on the process for presenting an application under section 6-4, 6-58 or 6-59 of the The Saskatchewan Employment Act (Act) and for hearings before the Labour Relations Board (Board). This guide is an informal tool, which should be used in conjunction with the Act and the The Saskatchewan Employment (Labour Relations Board) Regulations (Regulations). Link to Act and Regulations, here; link to Forms, here.

General Information

What is the Board?

The Labour Relations Board is an independent quasi-judicial tribunal responsible for administering Part VI of the Act. The Board’s mission is to promote and support harmonious employer-employee relations. As such, one of the goals of the Board is to ensure that complaints by union members, that unions have not complied with their duty of fair representation, or have not complied with the principles of natural justice, are examined fairly and impartially.

The Board also provides mediation services to help parties resolve differences without resorting to a formal hearing. Mediation services are often effective in resolving applications under section 6-4, 6-58 or 6-59. Parties are urged to use those services to assist in reaching a resolution.

Who conducts the hearings?

Hearings are usually heard by the Chairperson or the Vice-chairperson of the Board sitting alone. In some limited circumstances, a hearing before a full 3-person panel of the Board will occur.

Filing an Application

What types of complaints can I file before the Board?

Applications can be filed under section 6-4, 6-58 or 6-59 of the Act by an employee who is or was a member of a union. An application can be made under s. 6-4 if an employee is unreasonably denied membership in a union. An application under section 6-58 can be made if an employee believes that his or her union has not applied the principles of natural justice to specific disputes between the employee and the union that are named in that section. Applications under s. 6-59 of the Act usually relate to a failure on the part of the union to properly represent a member in grievance or rights arbitration proceedings under a collective agreement by acting in a manner that is arbitrary, discriminatory or in bad faith.

What amounts to arbitrary, discriminatory or bad faith representation by a union has been described by the Board in numerous decisions which can be found here on the Board’s website or here on the CanLII website. A recent decision where the factors considered by the Board were described is Eyndhoven v. Canadian Union of Public Employees, which decision may be found here

The board has no jurisdiction to deal with the merits of a grievance. Some context is required for the board to know how the grievance arose, but their principal inquiry will be directed to the nature of the representation you received from the union related to the grievance and your evidence should focus on any actions by the union which you believe were arbitrary, discriminatory or in bad faith.

Can I represent myself?

Employees who file an application with the Board may represent themselves without help from a lawyer. The Board will also permit someone who is not a lawyer to assist an applicant to represent themselves at a hearing if the Board is satisfied that person will be of assistance to the applicant and the Board.

How do I file a complaint before the Board?

An application must be filed with the Board, as stated in section 13 of the Regulations. To do so, the applicant will use Form 10 of the Regulations, which is called Employee-Union Disputes. 

The written application must include, at least, the following facts: 

(1) The name, address, and phone and fax numbers of the applicant;

(2) The name, address and email address of the union and employer;

(3) A short summary of the actions taken by the union that resulted in the application, specifying dates and the names of the persons in question;

(4) The steps taken by the applicant or on his/her behalf to rectify the situation;

(5) The corrective action or order requested; and

(6) Other facts relevant to the application.

After an Application is Filed with the Board

Opening the file

When the Registrar receives an application, a notice is sent to each of the parties acknowledging receipt of the application and advising the union and employer of their opportunity to reply. The acknowledgement letter also provides the parties with information required for continuing the process, such as the Board’s file number, and instructions on the next steps. It is important that the Board’s file number be used on all subsequent documents and correspondence.  

Mediation

Every application is eligible for pre-hearing mediation; however, the determination whether an application proceeds to a pre-hearing mediation is made by the Board. Pre-hearings are conducted by the Chairperson, Vice-Chairperson, Board Registrar or Board Officer. Pre-hearings are "off-the-record" and are less formal than hearings. They are used to try to settle cases which can be settled and to manage cases that cannot be settled by narrowing the issues and hopefully shortening the hearing. If a party declines to participate in mediation or if the conflict cannot be resolved through this approach, the application will be scheduled for a hearing. 

Even if the parties refuse mediation at the outset, they may at any point jointly request that the matter be referred to mediation. If the parties jointly file with the Registrar a request to have the conflict referred to mediation, the application will in most cases be put in abeyance and a mediation date scheduled.

Preparing for the Hearing

Introduction

Hearings give the parties an opportunity to present their evidence and arguments to the Board. As a rule, the process for a hearing before the Board is the same as that before a court, though somewhat less formal. The parties may file supporting documents as evidence and examine and cross-examine witnesses.

Scheduling the hearing

The Board usually schedules hearing dates several months in advance. The parties will be contacted to participate in a Motions Day conference call, during which the hearing date will be set.

Adjournment or withdrawal

A hearing may be postponed if either or both parties believe that they will be unable to attend on the scheduled date. In such a case, an adjournment must be requested from the Registrar no later than five business days prior to the first day of the hearing, along with the reason for the request. The requesting party must inform all parties that they are asking for an adjournment. Where the time before the hearing is shorter than five business days, a party may ask the Registrar to seek an adjournment from the Executive Officer of the Board.

The position of the other parties with respect to the request for adjournment will be obtained before a decision is made whether to postpone the hearing, and all parties will be informed of the decision.

Sometimes, the parties settle the dispute among themselves before the hearing. It is then up to the applicant to inform the Registrar immediately in writing that the dispute has been resolved and is being withdrawn, or is in the process of being resolved. If the hearing has started or is about to start (on that same day), the parties should inform the Board panel who is hearing the case about the withdrawal before informing the Registrar in writing.

Witnesses

A party that wants to call a witness to testify and thinks that the witness will attend only if legally required to do so can make a request of the Registrar (in writing and in the Form prescribed in the Regulations) that the Board issue a subpoena. If the Board issues a subpoena, the party that intends to subpoena the witness must serve the witness with the subpoena sufficiently in advance of the hearing, in the manner set out in section 9-9 of the Act. All costs related to the service of a subpoena are paid by the party requesting the subpoena. Witness fees are to be paid as specified in the Regulations. This includes fees for compulsory attendance at the hearing as well as fees to reimburse for travel costs, sustenance and lodging, if necessary. These fees are payable at the time the subpoena is served on the witness.

Subpoenas may be in two forms. One is a simple subpoena that is used to compel a witness to attend and give testimony. The other is a subpoena with documents, that requires that the witness not only attend the hearing and give testimony, but also bring with them documents they have in their possession which the party intends to have them produce at the hearing.

Special needs

The parties are responsible for notifying in writing the Registrar well in advance of any needs or services that they will require before or during the hearing (for instance, that the building where the hearing is to take place be accessible to people with mobility issues).

Technical and Procedural Issues

Recording

The hearings are normally recorded by the Board, but no transcript is prepared. Hence, it is important that the parties take notes. The Board panel will also take notes of the evidence and submissions. The notes taken by the Board panel are not accessible by the parties or the general public and are considered privileged. If any party requests a transcript, the cost of preparation of that transcript is paid by the requesting party. The other party may also obtain a copy of the transcript for a fee. All transcripts are prepared by a court reporter who is an independent contractor selected by the Board. No one other than the Board may record a hearing.

Oath or Affirmation

A witness who is called to testify at a hearing must swear an oath or solemnly affirm to tell the truth for his/her testimony to be admitted as evidence. Individuals asked to testify may swear on the Bible or another sacred text or object, or promise to tell the truth.

If a sacred text or object other than the Bible is to be used by a witness, the witness should arrange to bring that text or object to the hearing when he/she is expected to testify.

Failure to attend

If a person fails to attend a hearing or any subsequent session of that hearing, the Board panel may continue the hearing and decide on the matter without further notice to that person.

Objections

If a party raises an objection at the hearing, the Board panel will ask the other party for its position on the objection. It will then give the objecting party an opportunity to respond to the other party’s position before rendering a decision on that matter. The decision on some objections may be reserved by the Board panel and dealt with in the final decision.

The Conduct of the Hearing

Decorum

Proper behaviour is expected from the participants. As a sign of respect, when the Board panel enters or exits the room, it is customary, however not required, for participants to rise. As well, special places are assigned to the participants in the room depending on their role in the case (applicant, witness, etc.) (see Appendix 1).

If the hearing is held by Webex, each participant will be identified at the outset of the hearing so that the parties are able to identify the panel, the clerk, opposing parties and other participants.

Opening statement and preliminary matters

At the beginning of a hearing, the Board panel makes an opening statement. It takes this opportunity to explain the reason why the parties are there and the basic rules for the hearing. It then asks the parties whether they have any preliminary questions that they would like to bring to the panel’s attention. This is when the parties can raise an objection concerning the Board panel’s jurisdiction to hear the complaint, request the exclusion of witnesses from the hearing or request modifications or clarifications on the conduct of the hearing.

Afterwards, each party may make an opening statement, during which it can provide a summary or overview of what it intends to prove, how it intends to do so and the outcome sought. The order of presentation of the opening statements is the same as that of the presentation of evidence (see section on Presentation of evidence). It should be noted that the party that proceeds second may wait until it presents its case to make its opening statement, in other words, just before its evidence is presented.

Presentation of evidence

It is through the presentation of evidence that the parties have the opportunity to prove the facts that support their cases.

Generally, the applicant will proceed first with the presentation of his/her evidence. Witnesses who are expected to testify (other than an instructing party) are normally asked to leave the hearing room while other witnesses are testifying.

The party that presents its evidence first is the first one to question its witnesses. This is called “examination-in-chief”. During its examination-in-chief, this party will aim to present all of the information that will help support its case. This may include testifying on one’s own behalf. It is up to each party to decide who to call as a witness. Then, the other party questions the first party’s witnesses: this is the cross-examination. It will try to contradict the evidence presented or demonstrate that the merits of the case are unfounded. After the cross-examination, the party that was the first to question its witnesses will have an opportunity to re-examine its witness to address any new point raised during the cross-examination. Once all of the first party’s witnesses have been questioned, then, the other party will have a chance to question its witnesses to present its evidence and, as before, this will be followed by a cross-examination and re-examination.

It should be noted that all persons who testify, including the applicant, must swear an oath or make a solemn affirmation to tell the truth.

How do I present my evidence and examine my witnesses?

Essentially, the presentation of evidence involves asking witnesses questions and filing documents or items applicable to the dispute. Documents and other items presented as evidence are generally provided through a witness or with the other party’s agreement. A copy of the documents must be provided to each of the parties, to the witness, and to the Board panel. As a general rule, you should have a minimum of 4 copies of any documents you propose to enter as evidence. To the extent possible, documents should be in their original form and not edited.

It is important that questions asked during the examination-in-chief of a witness be kept short and open to enable the witness to be free to recount the facts relative to the matter. This means that leading questions, where the witness is guided toward an answer, should not be used. However, there is nothing to prevent the parties from asking leading questions at the beginning of a witness’s examination-in-chief to establish the witness’s identity or during cross-examination to focus the witness’s answers.

How do I prepare my arguments?

When parties present their arguments, following the presentation of all of the evidence, they can also present, in support of their case, previous Board decisions relevant to the matter under consideration. Research is very important in preparing the arguments. The parties may consult the Board’s website where they can find previous Board decisions and those of other labour boards, the Act and regulations and other useful links.

Closing Arguments

Before the closing arguments, the parties will have “closed their cases”. That means that they will have presented all of the evidence that is to be relied on by the Board. During the presentation of closing arguments, the parties speak in the same order as for the presentation of evidence. At this time, the parties can summarize the evidence and present their legal arguments. This is when the parties refer to the Act and previous decisions of the Board, other labour boards or courts to support their arguments.

If a party intends to refer to a previous decision, it must provide a copy to each party and to the Board panel.

End of Hearing

After the parties have presented their arguments, the hearing will come to a close.

If more time is needed to continue the hearing, the Registrar will specify the date, time, place and terms of its continuance.

After the Hearing

Decision

The hearing gives the Board panel an opportunity to review and consider the parties’ arguments, submissions, and the evidence required to understand the dispute. The Board panel must then render its decision in writing. Normally, the Board panel tries to render its decision within six months of the hearing.

Privacy Notice

The Board renders quasi-judicial decisions on applications. In writing its decisions, it is careful to include only personal information that is relevant and necessary for its reasons. Since its decisions are accessible to the public, they are posted on its website. In appropriate circumstances, and on application, the Board will mask the identity of the applicant or other person in accordance with the protocol adopted by the courts.

Appendix 1

 

Hearing Setup