SK Court of Appeal rules Labour Relations Board breached procedural fairness by consulting a website to support its conclusion without asking the parties for further submissions

The Court of Queen’s Bench dismissed two applications to quash a decision of the Saskatchewan Labour Relations Board. The two appellants argued that the board’s decision breached procedural fairness falling into two categories: the board conducted ex parte research following its oral decision; and the board improperly heard the parties because one member was not physically present when the board adjourned to deliberate and was without materials that had been filed during oral argument. The reasonableness of the board’s decision was also questioned by the appellants. A grocery store changed operation with the former and latter being covered by different certification orders. The unions applied to the see who would represent the employees of the store. The oral hearing was adjourned to hear a final witness. The board found that s. 37 of The Trade Union Act applied such that the new operator of the store was the successor. The Queen’s Bench concluded that the board’s review of one of the union’s websites did not result in any change to its approach although it was a breach.

The Court of Appeal held the chambers judge erred by not quashing the board’s decision because the board breached the principle of audi alteram partem by consulting a website to support its conclusion without asking the parties for further submissions. The board functions at or near the judicial end of the spectrum and therefore a high level of procedural fairness was required. The parties did not have an opportunity to address the board with respect to the website and the reliability of the information on the website was not tested.