Background:
The Board hears appeals on questions of law from adjudicators’ decisions under Parts II, III or V of The Saskatchewan Employment Act [Act] pursuant to sections 4-8 or 4-10 of the Act.
An appeal to the Board does not automatically stay (temporarily stop) the effect of the adjudicator’s decision that is being appealed. However, the Board may order a stay while the appeal to the Board is pending.
Appeals to the Board are based on the record of the adjudicator whose decision is being appealed. Parties will receive the record from the Board. The record does not usually include a transcript of the evidence taken before the adjudicator. Adjudicators are not required to record their hearings, or to have transcripts produced. The record will include documents (exhibits) that were filed with the adjudicator by the parties. The Board may consider evidence beyond the record of the adjudicator if a party makes an application to adduce fresh evidence to the Board. Such applications are granted in limited circumstances.
Procedure:
General
Any party appealing a decision of an adjudicator must file a notice of appeal in Form 1 of The Saskatchewan Employment (Labour Relations Board) Regulations, 2021 [Regulations].
A respondent to an appeal is not required to file a reply to the notice of appeal. However, if an appellant is requesting that an adjudicator’s decision be stayed pending the appeal (in paragraph 9 of Form 1, or as an attachment to Form 1), a respondent should file a sworn or affirmed reply in Form 21 of the Regulations, stating the relevant facts in relation to this request from the respondent’s perspective, and whether they oppose or agree to the requested stay.
Stays
An appellant seeking a stay of the decision being appealed must clearly state the reasons why a stay should be ordered (in paragraph 9 of Form 1, or as an attachment to Form 1). If relying upon any affidavit evidence in support of the request for a stay, this should be filed at the same time as the notice of appeal. The respondent’s reply must clearly state their position, including (if applicable) the reasons why a stay should not be ordered. If relying upon any affidavit evidence, this should be filed at the same time as the respondent’s reply. The Board discusses the matters it considers when a stay is requested in the decision linked here, at paragraphs 13 to 17.
After the pleadings have closed, meaning once all respondents have filed a reply, or the time for filing a reply has elapsed, the Board will invite the parties that filed pleadings (i.e., the appellant, and any respondent that filed a reply) to file additional written argument, if desired.
Scheduling of appeals
The parties will be asked to attend an Appearance Day to set a date for the hearing of the appeal (oral argument) and filing deadlines for the parties’ written arguments. The appellant’s argument is due 10 business days before the respondent’s argument, unless otherwise directed by the Board. If the respondent’s argument suggests that the decision appealed from should be upheld for reasons not found in the decision, in spite of the errors identified by the appellant, the appellant may address this suggestion in a reply argument. Such a reply argument is due 2 business days after the respondent’s written argument, unless otherwise directed by the Board.
Fresh evidence
Appeals are based on the record that was before the adjudicator. A party must apply to file fresh (new) evidence with the Board. Because there is no prescribed form for such an application, section 36 of the Regulations governs and should be consulted. The application should be filed before the Appearance Day at which the scheduling of the underlying appeal is spoken to. The other parties to the appeal will be given the opportunity to respond to the application. For a case discussing the considerations the Board may take into account on such applications, see the decision linked here, at paragraphs 23 to 33.
This practice note is intended to provide general guidance concerning the current policy of the Board with respect to Appeals under Part IV of the Act. Specific inquiries should be directed to the Board Registrar.
DATED at Regina, Saskatchewan, February 1, 2024.