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Practice Note No. 1
In a decision in Burkart v. Dairy Producers' Co-operative Limited, the Saskatchewan Court of Appeal recognized that this Board has jurisdiction under Section 42 of The Trade Union Act to issue interlocutory injunctive orders. In 1994, the Act was amended to confer on the Board explicit jurisdiction to award interim relief. Section 5.3 of the amended statute, which came into effect on October 28, 1994, reads as follows:
With respect to an application or complaint made pursuant to any provision of the Act or the regulations, the board may, after giving each party to the matter an opportunity to be heard, make an interim order pending the making of a final order or decision.
There may be occasions when interim relief is sought in the course of a full hearing of the application on its merits, after the Board has had an opportunity to weigh the evidence. The Board may be asked, for example, to issue an interim order to remain in effect until some other remedial step can be taken.
On other occasions, however, the Board must deal with applications for interim relief or an interlocutory injunction as a separate matter prior to the full hearing. It is these applications which are the subject of this practice note, whether the application for interim relief cites Section 5.3, Section 42 or any other section of The Trade Union Act.
The Board first attempted to enunciate some procedural guidelines to govern applications for interlocutory relief in a decision in Saskatchewan Joint Board Retail, Wholesale and Department Store Union v. WaterGroup Companies Inc., LRB File No. 011-92. New questions have arisen since that decision, however, and our attempts to deal with procedural issues on an ad hoc basis have produced some uncertainty. We hope by this practice note to provide clearer procedural guidelines in relation to the hearing of these applications, though our procedure will continue to evolve, and we will no doubt have occasion to revise some of these procedures in the future
Our general approach to the hearing of applications for injunctive or interim relief has been drawn from the standards set by the boards for the granting of injunctions, although we have acknowledged, as other labour relations boards have, that these standards are applied in the particular context of labour relations and with an eye to the objectives of the statute under which we operate.
It is important to remember in this context that the Labour Relations Board is intended as a forum for the expeditious resolution of the matters brought before us, and that we attempt to establish hearing dates and issue decisions with this in mind. Most, if not all, of the applications brought before us are time-sensitive, and the parties are understandably anxious to have them dealt with as swiftly as possible. Applications for injunctive or interim relief, therefore, should not be seen, and cannot be accommodated, as a means of getting to the head of the lineup for hearings before the Board. They should be brought only where there is some issue of a crucial nature which cannot be properly addressed by means of the ordinary expeditious procedure of the Board.
This is consistent with one of the requirements set out by the courts, which is that the applicant must be able to demonstrate that they have a prospect of success in the outcome of the full hearing which is not entirely illusory. The courts have expressed the degree of likelihood of success which the applicant must show in various ways, but at least the applicant must be able to show that a serious question is being raised, and that it is one which is within the jurisdiction of this Board to decide.
In the recent decision of the Board in Saskatchewan Joint Board Retail, Wholesale and Department Store Union v. Prairie Micro-Tech Inc., LRB File No. 238-94, the Board phrased the test in these words:
It is sufficient that an applicant be able to establish that the major application, no matter how humble its compass, raise an issue which invokes the jurisdiction of the Board in a genuine and sober way.
The main application which states the issue which will ultimately be determined may in some cases make it clear that a request for interim or interlocutory relief is being made, and the grounds on which that request is based. In most cases, however, it is advisable to file a separate application which states clearly what grounds are being relied on which would justify the granting of an interlocutory or interim order.
The Board said there that the application should be in writing, and should set forth with particularity:
The Board went on to point out that particularity is of heightened importance in a circumstance where the opportunity to respond to the application is by nature "limited in both time and circumstance." An applicant should therefore ensure that the application states clearly what allegation is being made against the Respondent, and what the Board is being asked to do about it.
In the urgent circumstances which give rise to applications of this kind, the procedural rules which protect the right of a respondent to reply adequately are already abbreviated. Applications for interim or interlocutory relief which are not sufficiently particular may therefore be dismissed on that ground.
The Respondent will also be given an opportunity to file affidavits which support the argument they wish to make in reply.
Filing and Serving Applications and Scheduling Hearings
Prior to filing the application, the applicant shall contact the Secretary of the Labour Relations Board to obtain a date on which a panel will be convened to hear it. The return date granted by the Secretary shall be included in the application in order to give the Respondent notice of the same. Any request to alter the return date of the application must thereafter be made to the Board.
This guideline has not proved particularly helpful in practice, and stands in need of further clarification. The following steps will henceforth be followed.
Unlike a court, the Board does not have the resources to set aside times for regular "chambers" hearing, and the Board must therefore retain control of the scheduling of hearings. Though the Board will make every effort to accommodate the parties in this matter, the practicability of scheduling a panel of Board members, as well as the apparent urgency of the matter at issue, must be taken into account.
Though service on the Board and the Respondent of the application and supporting material may be effected by registered mail, the time at which the Respondent receives the documentation will be regarded as the beginning of the three day minimum period referred to earlier. Service may be effected by facsimile, but any dispute about the receipt of the documentation will be resolved in favor of the Respondent. Personal service, as the Board pointed out in WaterGroup, is perhaps the most certain method.
This practice note is intended to provide general guidance concerning the current policy of the Board with respect to applications for interlocutory injunctions and interim orders of an interlocutory nature. It is not a legal document, and should not be viewed as a ruling by the Board or an official interpretation of the Trade Union Act. Specific inquiries should be directed to the Registrar of the Labour Relations Board at (306)787-2406.
DATED at Regina, Saskatchewan, November 22, 1994.