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.

• The applications to which we are referring in this note are ones which seek to preserve the status quo until such time as a final determination can be made on the basis of a full hearing of the issues. Thus, the first procedural requirement set out in the WaterGroup case was that such an application must be "brought in conjunction with a request for final relief available under the Trade Union Act." In other words, the application must make clear the basis of the primary claim which is being made under The Trade Union Act and what relief is being sought, including the interim or injunctive order.

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 second procedural requirement listed in the WaterGroup decision follows from this.

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.

• In drafting an application of this kind, it should be kept in mind that the Board must be persuaded that there is some compelling reason to grant a remedy without a full hearing of the case. The courts have said that an applicant must demonstrate that there will be "irreparable harm" which cannot be cured later when a decision is made and remedies ordered on the case as a whole.
• Even where some irreparable harm can be demonstrated, the courts and this Board have required applicants to show that this harm is not outweighed by the harm which would be done to the respondent by making an order when the full case has not yet been heard, a factor which is referred to as the "balance of convenience."
• The application will generally be determined on the basis of written material filed by the parties, and oral argument, but not the testimony of witnesses. The application should therefore be accompanied by a statutory declaration or affidavit, in which the deponent sets out those facts lying within his or her personal knowledge which will be relied on to support the application.

The Respondent will also be given an opportunity to file affidavits which support the argument they wish to make in reply.

• In the WaterGroup case, one of the procedural rules specified by the Board was as follows:

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.

• The Applicant should file with the Board four copies of the application for an interlocutory order and the written material which supports it. The Applicant should also contact the Registrar of the Board directly to indicate that a date for the hearing of an application is desired.
• No respondent will be expected to be prepared to respond to an application in less than three clear business days from service of the application and supporting material. If an abridgment of that time is sought, a separate application for abridgement of time must be brought.
• The Secretary will initially make an effort to secure the agreement of the parties to a hearing date. The Secretary and the Board will make every effort to ensure that this date is between four and seven business days from the service on the Board of the application and supporting material. In the event the parties are unable to agree, the Registrar will set a date and time between four and seven days following service on the Board of the application, provided it is possible to convene a panel of the Board during that time. In the event this is not possible, the Registrar will set the earliest possible date.

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.

• As close as possible in time to the initial filing of the application with the Board, the Applicant should provide the Respondent with copies of the application and the material supporting it. It should be noted that where an application for an interlocutory order is made, the Applicant is responsible for serving the application and the supporting documentation on the Respondent.

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.

• The Respondent should file with the Board and serve on the Applicant any reply with supporting material prior to the hearing.
• In the absence of consent of both parties, any request for adjournment of the date agreed to by the parties or set by the Board must be made before the Board on the date when the hearing is scheduled.

• The Board will generally determine the application on the basis of the written material filed, and oral argument made by the parties at the hearing. If the parties consent, the Board may allow cross-examination of an extremely limited kind or the affidavits filed; such cross-examination should be restricted to matters of clarification. In either or both of the parties wish to introduce matters which go beyond the matters deposed to in the affidavits, it is likely that an early hearing on the merits of the application would be more effective way of addressing the issues.
• As in framing the applications, the argument before the Board should address the three requirements for the granting of injunctions which have been set out by the courts, and accepted as a guide by this Board - the establishment of a plausible basis for the application as a whole, the demonstration of irreparable harm, and the assessment of the balance of convenience.

DATED at Regina, Saskatchewan, November 22, 1994.