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Saskatoon, Saskatchewan
S7K 2H6
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Regina, Saskatchewan
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Practice Note – Interim Applications

 

Background:

The Saskatchewan Labour Relations Board (“Board”) is responsible for adjudicating certain disputes under The Saskatchewan Employment Act (“Act”). Typically, these disputes are resolved following a hearing at which evidence is tendered and argument from the parties is heard by the Board. However, the Act also authorizes the Board to make interim orders or decisions before the final determination of a matter, pursuant to s. 6-103(2)(d). Applications for interim relief that are to be heard as a separate matter before the full hearing are the subject of this practice note.

Making an Interim Application:

Applications for interim relief must comply with Section 15 of The Saskatchewan Employment (Labour Relations Board) Regulations, 2021 (“Regulations”). Form 12 of the Regulations sets out the form of an application for interim relief.

An application for interim relief cannot be made in a vacuum. There must be an underlying application that states the issue that will ultimately be determined. The application for interim relief is required to state clearly what grounds are being relied on that would justify the granting of an interim order. Care must be taken with respect to the following points:

  • In drafting an application for interim relief, the Board must be persuaded that there is a compelling reason to grant a remedy prior to a full hearing of the underlying application.
  • The Board uses a two-part test to guide its analysis: (1) whether the underlying application raises a serious issue to be tried; and (2) whether the balance of convenience favors the granting of interim relief pending a hearing on the merits of the underlying application. The first part of the test – serious issue to be tried – is a low bar. The question is whether the underlying application raises an arguable case of a potential contravention of the Act. The second part of the test relates to the balance of convenience. The applicant must demonstrate that the labour relations harm in not granting the order outweighs the labour relations harm in granting it.
  • Generally speaking, interim relief will not be granted if it would amount to granting the full relief that is claimed in the underlying application.
  • The application for interim relief 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 affidavits that set out the facts that are relied on to support the application. Subsections 15(2) to (4) of the Regulations require that an affidavit be confined to facts that the witness is able, of the witness’s own knowledge, to prove, unless the Board orders otherwise. If an affidavit not based on a witness’s own knowledge is proposed to be tendered, the applicant must satisfy the Board there are special circumstances that justify its admission.

 Filing and Serving Applications and Scheduling Hearings

  • Subsection 15(5) of the Regulations requires that, before filing the application, the applicant contact the Board Registrar to obtain a date on which a panel will be convened to hear it. The applicant is also responsible to file the application and supporting material (including a draft of the order sought) with the Board in accordance with the Regulations, and serve the application and supporting materials on the respondents at least three business days before the hearing. After service has been effected, the applicant must file proof of service with the Board, before the hearing.
  • If an abridgment of that time for service is sought, a separate application must be brought pursuant to section 30 of the Regulations.
  • If the parties cannot agree to appear before the Board on the date initially established by the Registrar, then the Registrar, at the request of the parties shall assist the parties to reach agreement as to an alternate date.
  • In the absence of consent of both parties, any request for adjournment of the date agreed to by the parties or set by the Registrar must be made before the Board on the date when the hearing is scheduled.
  • Before the hearing, the respondents may file with the Board and serve on the applicant any Reply with supporting material.

 Hearing Applications

  • The Board will determine the application on the basis of the written material filed, and oral argument made by the parties at the hearing.
  • If either or both of the parties propose to introduce issues that go beyond the matters deposed to in the affidavits, it is likely that an early hearing on the merits of the underlying application would be a more effective way of addressing the issues.

 Reference Material:

Guidance for a party planning to bring an application for interim relief may also be found in various decisions of the Board including:

Andritz Hydro Canada Inc. v the United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, 2021 CanLII 37010 (SK LRB).

Saskatchewan Government and General Employees’ Union v Benjamin Hazen, 2020 CanLII 90830 (SK LRB).

Unifor Canada, Local 594 v Consumers’ Co-operative Refineries Ltd., 2020 CanLII 62010 (SK LRB).

Kone Inc. v International Union of Elevator Constructors, 2020 CanLII 41808 (SK LRB).

Alumasafway, Inc. v International Association of Heat & Frost Insulators and Asbestos Workers, 2020 CanLII 19808 (SK LRB).

Saskatchewan Government and General Employees' Union v. Saskatchewan (Government), 2010 CanLII 81339 (SK LRB).

This practice note is intended to provide general guidance concerning the current policy of the Board with respect to applications for interim orders. It is not a legal document, and should not be viewed as a ruling by the Board or an official interpretation of The Saskatchewan Employment Act. Specific inquiries should be directed to the Board Registrar at (306)787-2406. Applicants are also directed to the Act, Regulations and previous decisions of the Board, that may be found on its website at http://www.sasklabourrelationsboard.com/ or at www.canlii.org.

DATED at Regina, Saskatchewan, July 13, 2021.