J. 2004 SKQB 324 Q.B.G. A.D. 2004 No. 1042 J.C.S. IN THE QUEEN’S BENCH JUDICIAL CENTRE OF SASKATOON IN RE: THE MATTER OF JUDICIAL REVIEW PURSUANT TO PART 52 OF THE RULES OF THE COURT OF QUEEN’S BENCH TO SET ASIDE THE DECISIONS OF THE SASKATCHEWAN LABOUR RELATIONS BOARD DATED THE 21ST DAY OF MAY, 2004 AND THE 24TH DAY OF JUNE, 2004. BETWEEN: WAL-MART CANADA CORP., and SASKATCHEWAN LABOUR RELATIONS BOARD, and UNITED FOOD AND COMMERCIAL WORKERS, LOCAL 1400, and TRENA TELENGA, KYLA GIBBS, HOLLY VANDALE, KATHY KOCH, ANGELA FEDUN, TRENT CARLSON, ELAINE MOORE, MICHAEL SIOUROUNIS, and CHARMAINE SPENCER, INTERESTED PARTIES John R. Beckman, Q.C., Richard W. Elson for Wal-Mart Canada Corp. and Catherine A. Sloan (“Wal-Mart Canada”) Drew S. Plaxton for United Food and Commercial Workers, Local 1400 (“UFCW") Michael D. Nolin for the Interested Parties Melanie A. Baldwin for Saskatchewan Labour Relations Board (the “Board”) Ross W. Macnab for the Attorney General, Province of Saskatchewan JUDGMENT BAYNTON J. July 23, 2004 The Nature of the Applications [1] Wal-Mart Canada applies for an order pursuant to The Queen’s Bench Rules 664 and 673 quashing the orders of the Board made on May 21, 2004 and June 24, 2004. These orders require Wal-Mart Canada to discover and produce documents, including those referred to in a subpoena duces tecum. Wal-Mart Canada says that the Board does not have the jurisdiction to utilize the subpoena or make the disclosure and production orders in the manner in which it has done. [2] Wal-Mart Canada also applies for an order pursuant to s. 24 of Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, declaring s. 9 of The Trade Union Act, R.S.S. 1978, c. T-17, unconstitutional and of no force and effect insofar as it infringes the freedom of thought, belief, expression and communication under s. 2(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act 1982 (U.K.), 1982, c. 11. Positions of the Parties [3] Wal-Mart Canada challenges the Board orders on several grounds which are set out in its amended notice of motion and its detailed legal brief. The purport of the challenges are summarized as follows. First, that the Board has no jurisdiction to issue subpoena duces tecum or to make production orders without considering the relevance of what is sought to be produced. Second, that the Board has no jurisdiction to do indirectly what it cannot do directly, namely to authorize UFCW to discover documents or to conduct an examination for discovery by means of subpoena duces tecum or series of production orders, process that infringes the substantive rights of Wal-Mart Canada, including its solicitor-and-client privileges. [4] Third, that the Board has no jurisdiction to order the production of documents that are irrelevant to the issues that are properly before the Board. Examples of such irrelevant documents are communications between management and documents of the Wal-Mart American corporation, separate entity from Wal-Mart Canada which does not operate in Canada and is not party to the proceedings. Fourth, that the use by the Board of its powers to permit UFCW to discover documents in “fishing expedition” for an ulterior purpose unrelated to the issues, is an abuse of process. [5] Wal-Mart Canada challenges the constitutionality of s. of The Trade Union Act on the ground that the Board has used it as the basis for making the impugned orders which have the effect of infringing freedom of thought, belief, opinion, expression and communication as guaranteed and protected under s. 2(b) of the Charter. [6] UFCW maintains that Wal-Mart Canada’s applications are premature and that judicial review of the Board’s orders should not be brought until it has disposed of the certification application and collateral issues. In the alternative, it maintains that ss. 42 and 18 of The Trade Union Act and ss. and of The Public Inquiries Act, R.S.S. 1978, c. P-38 clothe the Board with authority to order discovery and production of documents, at least to the extent of the procedure adopted in this case. [7] UFCW also maintains that the Board should hear the Charter challenge in the first instance, and, in the alternative, if there is no breach or if there is, it is saved by s. of the Charter. It also maintains that the applications are brought by Wal-Mart Canada to delay and fragment the hearings to the jeopardy of UFCW’s application for certification. [8] The Board submits that the record is restricted to the return it has made pursuant to Rule 669 and that the Court should not consider the transcript or the affidavit evidence relied upon by the parties. It also submits that the patently unreasonable standard of review applies to the application, not the correctness standard of review. [9] The Interested Parties submit that, depending on how the hearings progress, they may be before the Court on similar issues, including the constitutional issue. [10] The Attorney General for Saskatchewan maintains that the Court should decline to hear the Charter issue until it has been ruled upon by the Board. In the alternative, the Attorney General for Saskatchewan maintains that s. is permissive and does not infringe the freedoms guaranteed by s. 2(d) of the Charter. 1. What constitutes the record of the Board proceedings in this particular case? 2. What is the applicable standard of review in this case? 3. Did the Board, by means of subpoena duces tecum and its two document production orders, act without jurisdiction by in effect compelling Wal-Mart Canada to discover and produce documents in contravention of the previous rulings of the Saskatchewan courts that the Board was without jurisdiction to do so? 4. Should the Court consider the Charter challenge to s. of The Trade Union Act in the circumstances of this case or should it defer its decision until either the issue has been ruled upon by the Board or more complete factual foundation and context has been provided to the Court? 5. If the Charter issue should be considered in the first instance by the Court, does s. violate s. 2(d) of the Charter and if so, is it protected by s. of the Charter? If it is unconstitutional and not protected by s. 1, what is the appropriate order that the Court should make? Background Facts [11] UFCW brought an application before the Board for an order for certification respecting certain employees of Wal-Mart Canada at its Weyburn store. The application is contested by Wal-Mart Canada and by certain Wal-Mart Canada employees who are designated by the Board as “Interested Parties”. These employees resist UFCW’s certification application and have alleged that UFCW, in its organizing tactics, has committed an unfair labour practice. UFCW maintains that the involvement of these employees has been influenced by Wal-Mart Canada. [12] On May 4, 2004, prior to the hearing, the Board issued subpoena duces tecum. It directed Wal-Mart Canada to attend the hearing and bring host of documents and records. The subpoena sets out 12 categories of these records and documents. Although some specific documents are identified and described in the various categories of the subpoena, most of the categories require Wal-Mart Canada to discover and produce potentially volumes of material. The determination of much of this material requires the interpretation and discretion on the part of Wal-Mart Canada in determining the scope of what the subpoena requires of it. copy of the subpoena is attached as Schedule “A” to this judgment. [13] As an example, para. of the subpoena identifies and requires production of document entitled “Wal-Mart Manager’s Toolbox to Remaining Union Free” but it also requires the discovery and production of documents in general by the phrase: “. and any similar documents evidencing communications from the corporation to its managers, including all revisions, extracts and related versions of same or similar communications and all notes, memoranda and other communications passing between the employer and its managers concerning trade unions and unionization”. [14] As another example, para. 12 of the subpoena requires production of: “All and any communications between the employer, its managers and others concerning the ‘Store within Store’ method of management and any similar or other policies or strategies concerning management operations and other documents concerning the powers and duties of department managers.” [15] When the hearing commenced on May 7, 2004, counsel for Wal-Mart Canada made detailed submissions to the Board objecting to the nature and scope of the subpoena and the manner in which it was being utilized by counsel for UFCW. The objections were substantially the same as those now raised before this Court. Before the hearing reconvened on May 25, 2004, the Board issued written decision dated May 21, 2004 that dealt with other issues as well as Wal-Mart Canada’s objections to the nature and scope of the subpoena. copy of the May 21, 2004 decision is attached as Schedule “B” to this judgment. [16] In essence the Board, by its written decision, ordered Wal-Mart Canada to comply with every term of the subpoena it issued on May 4, 2004 at the request of UFCW. The Board noted that counsel for UFCW had conceded that it no longer required the documents referred to in paras. 1, 2, and as set out in the subpoena but ordered Wal-Mart Canada to comply with para. and with paras. through 12 inclusive. It noted that counsel for Wal-Mart Canada had conceded that the job descriptions of the department managers sought by para. of the subpoena were relevant to the issues in the case. The Board ordered Wal-Mart Canada to produce the documents referred to in paras. and of the subpoena, then added an additional requirement of its own: as well as any other documents that clarify the job functions and duties of the department managers”. [17] The last paragraph of the May 21, 2004 written decision of the Board reads as follows: With respect to items 7, 8, 9, 10, 11 and 12, given that issues have been raised with respect to employer influence or interference and the status of department managers, we are of the opinion that the Employer shall produce the following documents: “Wal-Mart Manager’s Toolbox to Remaining Union Free”; the current “Wal-Mart Associate Handbook”; the document entitled “To the New Wal-Mart Associate” and other documents provided to newly hired employees; Corporate Policies CPD-42 and COP-08 as referred to in the Wal-Mart Associate Handbook; documents and communication to employees regarding trade unions or unionization; documents regarding the operational status of store departments and the concept of “Store within Store”. [emphasis added] [18] In its decision, the Board addressed the various paragraphs of the subpoena. The above paragraph, read in context, is summary of its views as to the validity of paras. through 12 of the subpoena. There is nothing in the decision to indicate that Wal-Mart Canada was relieved of compliance with any aspect of the subpoena, except paras. 1, 2, and that UFCW no longer required. Accordingly, do not interpret the summary given by the Board of paras. through 12 as substitution for the wording of those paragraphs of the subpoena. Rather, its order is direction that Wal-Mart Canada comply with the discovery and production of documents sought by those paragraphs in the subpoena duces tecum. [19] As have outlined, the Board not only ordered Wal-Mart Canada to produce everything UFCW had sought in the subpoena duces tecum, but added few requirements of its own thereby expanding the scope of discovery and production beyond that set out in the subpoena. It is not in dispute that the Board had the jurisdiction to order production of documents respecting communications to employees regarding trade unions or unionization as have emphasized as such documents are clearly relevant to an issue before the Board. But as will outline later, the highlighted portion of the order was interpreted by Wal-Mart Canada that the Board was focusing on communications to employees, not on communications among management. [20] There are virtually no reasons given by the Board in its written decision as to why it ordered each and every document, memo or communication sought by UFCW or why it rejected all the submissions made by counsel for Wal-Mart Canada respecting it. The only reference by the Board in its decision to the relevancy requirement is its observation in para. that one of the preliminary issues was the scope of the subpoena duces tecum and its observation in para. that Wal-Mart Canada had conceded that the documents referred to in para. of the subpoena were relevant to the proceedings. [21] The hearing re-commenced on May 25 and continued on May 26. It was adjourned to June 10, 2004 and continued on June 11, 2004. The hearing was adjourned again to June 24, 2004. Issues respecting the scope of the subpoena, as enforced by the May 21, 2004 written document discovery and production order of the Board arose. Counsel for UFCW applied to the Board for an order requiring Wal-Mart Canada to comply with the May 21, 2004 written order and to discover and produce additional documents. [22] In his submission to the Board, counsel for Wal-Mart Canada again maintained that his client had complied with the Board’s May 21, 2004 order and that counsel for UFCW was again involved in “fishing expedition”. Counsel for Wal-Mart Canada maintained that his client’s position respecting unions was before the Board and its preference not to have third party representation was not illegal nor was it relevant to the issues before the Board. He also maintained that the procedure being followed by UFCW was like discovery with none of the discovery safeguards in place. The employer influence issue before the Board was what Wal-Mart Canada did or said to its employees. Its corporate philosophy or culture or communications among management were irrelevant considerations. He referred to the “flip-side” of the submissions made by counsel for UFCW that the Board should be cautious in ordering disclosure respecting the efforts of UFCW to organize employees. [23] Counsel for Wal-Mart Canada again emphasized the necessity of the Board to address the issue of relevancy and the fact that the evidence established that some of the documents ordered to be produced were not in the possession, control or knowledge of the representative witness for Wal-Mart Canada. As well, some were documents of the American corporation, separate entity not party before the Board. UFCW had already obtained and entered as evidence at least two of these documents without the assistance of the Board. He also raised the issue that some of the documents requested might well enjoy solicitor-and-client privilege and that UFCW appeared to be using the power of the Board for an ulterior purpose, such as to obtain privileged information for use in other proceedings in other jurisdictions where different labour laws were in effect. He requested the Board to terminate the process of permitting UFCW to in effect conduct full-blown examination for discovery. He also requested the Board to provide written decision respecting any document discovery or production order that it might make in response to UFCW’s application. [24] At this point the Board called upon counsel for UFCW to respond. The purport of the response was that the preference of an employer that it not have third party representation is tantamount to employer influence or domination of its employees. [25] The Board adjourned for few minutes to consider its position but declined to issue written ruling respecting UFCW’s application for discovery and document production or respecting the objections of Wal-Mart Canada to the application and the procedure being followed by UFCW. Its oral decision is the June 24, 2004 order that Wal-Mart Canada seeks to quash and that is reported at pp. 10-15 of the transcript. [26] The June 24, 2004 oral decision of the Board ordered Wal-Mart Canada to produce “the documents referred to by Mr. Plaxton”. It is not clear what specific documents Mr. Plaxton, counsel for UFCW, was referring to in his submission to the Board prior to its order. But from review of the relevant portions of the transcript, pp. 1-9, it appears that he was seeking the production of some of the documents referred to in the subpoena as well as some additional documents. Pages 1-15 of the transcript are attached as Schedule “C” to this judgment. It records Mr. Plaxton’s application and submissions, Mr. Beckman’s objections and submission and the Board’s June 24, 2004 oral decision that Wal-Mart Canada seeks to quash. [27] The additional documents sought by counsel for UFCW on June 24, 2004 appear to include “Sam’s Club” document, “You and Human Relations” document, documents respecting “morale hotline”, “grassroots survey”, documents respecting an “assistant managers’ seminar” (presumably the “PowerPoint Presentation” referred to by the Board), document “You and Your Labour Relations, What Wal-Mart Canada Supervisor Should Know about Labour Unions” and in general all “internal documents of either Ms. Plant or whomever concerning how managers are supposed to react ”. It is beyond the scope of this judgment to review and comment on the relevancy or privilege respecting each document. It is sufficient to observe that the Board did not address Mr. Beckman’s concerns or objections in any meaningful fashion but in effect ignored them. [28] It is the June 24, 2004 oral decision that sets out the views of the Board respecting its jurisdiction regarding the discovery and production of documents, its views of s. of The Trade Union Act and the meaning of employer influence. will comment on these aspects of the decision later. In its oral decision, the Board in effect affirms the subpoena and its previous May 21 order. It then goes on to order the production of the additional documents sought by UFCW, including the documents of the American corporation. After giving its oral decision, the Board adjourned the hearing to the next morning, June 25, 2004. [29] On the morning of June 25, counsel for Wal-Mart Canada requested an adjournment to review the oral discovery and production order made the previous day for the purpose of bringing an application to this Court to have it reviewed. Counsel for UFCW objected on the grounds that Wal-Mart Canada was in contempt of the May 21 written order and was bringing the application to delay the proceedings. The position of counsel for UFCW was that the proceedings before the Board had demonstrated that Wal-Mart Canada was in continual process of what the union perceived to be management influence in the workplace and other workplaces concerning union efforts to organize. [30] Counsel for UFCW at the hearing before me submitted that Wal-Mart Canada had in effect accepted the validity of the subpoena and the May 21, 2004 written order of the Board by not challenging them in the courts until after the June 24, 2004 oral order was made. accept the explanation of Wal-Mart Canada that it understood that the Board, by its May 21, 2004 order, was focused on communications to the employees of Wal-Mart Canada. It did not realize, until the June 24, 2004 order of the Board, that it was focusing on the corporate culture of Wal-Mart Canada and was requiring discovery and production of documents and communications between Wal-Mart Canada’s management or involving the American corporation. This is when Wal-Mart Canada concluded that the hearing had gone off the rails requiring it to seek court intervention. [31] The Board granted Wal-Mart Canada three-day adjournment to June 28, 2004. On that date, Wal-Mart Canada brought its application to this Court for judicial review to quash the two Board orders. Mr. Justice D. H. Wright abridged the time for service of the notice of motion and adjourned the hearing of the application to July 13, 2004, directing stay of the proceedings of the Board until that date. Only July 5, 2004, Wal-Mart Canada amended its notice of motion to include the Charter relief it now seeks and obtained an order from Chief Justice Gerein abridging the time for service of the notice required by s. 8(2) of The Constitutional Questions Act, R.S.S. 1978, c. C-29, pursuant to s. 8(5) of that Act. [32] The matters were argued before me on July 13, 2004 and extended the stay pending my decision and further court order. By agreement of counsel, paras. and of Ms. Catherine Sloan’s affidavit filed in Court on behalf of Wal-Mart Canada were struck out in response to an objection raised by counsel for UFCW. The Attorney General for Canada did not appear on the application but relied upon the representations made by Mr. Ross Macnab on behalf of the Attorney General for Saskatchewan. [33] Counsel for the Board appeared on the application and filed written submission. It acknowledged the limited role of the Board on judicial review of one of its orders as outlined in CAIMAW v. Paccar of Canada Ltd., 1989 CanLII 49 (SCC), [1989] S.C.R. 983. The Board submitted that the record properly before the court was contained within the return filed pursuant to Rule 669. The Board relies on the comments of Lord Denning in R. v. Northumberland Compensation Appeal Tribunal, Ex parte SHAW, [1952] All E.R. 122 (C.A.) and several subsequent Saskatchewan decisions that have adopted those comments. At p. 131, Lord Denning states: Following these cases, think the record must contain at least the document which initiates the proceedings, the pleadings, if any, and the adjudication, but not the evidence, nor the reasons, unless the tribunal chooses to incorporate them. But Lord Denning goes on to state in the next paragraph: When certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is, as rule, necessary. [34] He then goes on to state that despite the strictness of the rule that error of law must appear on the face of the record, the parties can always by agreement overcome the difficulty of an incomplete record. It is obvious from his comments that the rule should not be relied upon to thwart meaningful judicial review in appropriate cases. [35] It is also significant that counsel for the Board concedes that the case before me is unique and that the Court must make two exceptions to the strict rule as to what constitutes the record. The first is the subpoena duces tecum dated May 4, 2004. The second is the Board’s lengthy oral order dated June 24, 2004 that is not available to the Court apart from portion of the transcript of the hearing. Counsel for the Board acknowledges that both Wal-Mart Canada and UFCW have filed affidavit evidence with the Court and that both have referred to portions of the transcript of the hearing in their respective submissions. She fairly conceded that she would not belabour her submission that the transcript or affidavits should not be considered as part of the record if counsel for the parties were of the view that they were an essential part of the record. [36] had no desire to read lengthy transcript and several affidavits unless my reading of them was essential to deciding the issues before me. Counsel for Wal-Mart Canada maintained that the transcript and affidavit evidence in the circumstances of this case were properly part of the record. Counsel for UFCW was ambivalent in this respect. However, the fact that counsel desire to refer to the transcript or the affidavits or have me read them does not of itself entitle or obligate me to do so. But agree with counsel for Wal-Mart Canada that the Court cannot rule on the application and issues in this case without considering the transcript. Not only must the record be embellished by considering the subpoena and the June 24 order as suggested by counsel for the Board, but the orders are meaningless without the context provided by the transcript. In this sense, the Board has incorporated the evidence into its orders within the exception outlined by Lord Denning. [37] Counsel for the Board also submits that none of the allegations of lack of jurisdiction on the part of the Board by Wal-Mart Canada in its notice of motion can be categorized as an allegation of denial of natural justice, such as bias; nor is this case in which there is no evidence on which the Board could have ordered what it did. But by way of example, the June 24, 2004 oral order contained in the transcript that previously related directs the production of the documents “referred to by Mr. Plaxton”. Such direction is meaningless, or at least incomplete, without going back in the transcript to determine what documents were in fact referred to by Mr. Plaxton. Only then can it be determined what in fact the Board was ordering and whether such an order was within its jurisdiction. [38] As well, it is not possible, without review of the transcript, to consider the allegation of Wal-Mart Canada that the Board has abused its powers to issue subpoena duces tecum by permitting UFCW to utilize it as means of discovering documents at the hearing. Nor is it possible, without review of the transcript, to consider the allegation of Wal-Mart Canada that the Board has abused the powers it has to order production of documents at the hearing by relying on those powers to order the discovery and production of documents. The same can be said about the necessity of reviewing the transcript to consider each aspect of the breach of Charter allegations raised by Wal-Mart Canada. [39] I conclude that a review of the transcript is essential to the proper determination of the issues raised by the application and that it must, in this case, be considered part of the record. The fact that the Board has conceded that two exceptions must be made in any event, indicates that this is case where the exceptions to the general rule apply. have placed little reliance on the affidavit evidence. Some of it, such as the portions of the first affidavit of Paul Meinema, is rampant with opinion and argument. These portions would normally have been struck. But as Wal-Mart Canada has taken no issue with them in order to get on with the hearing, decline to comment on the offending provisions. The Applicable Standard of Review [40] Counsel for the Board maintains that the applicable standard of review is that of patent unreasonableness. Several cases are cited in her legal brief that define and comment on this well known standard and the rationale for it, including the expertise of specialized tribunals and strong legislative privative clauses. agree with counsel for the Board that the case law directs the court to adopt pragmatic and functional analysis in determining the applicable standard of review. The central question is whether the legislature intended the question to be left to the exclusive jurisdiction of the tribunal. Pushpanathan v. Canada (Minister of Citizenship and Immigration), 1998 CanLII 778 (SCC), [1998] S.C.R. 982. [41] But despite the host of cases cited by counsel for the Board on this issue, no reference was made in the brief to Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn. (1993), 1993 CanLII 31 (SCC), 108 D.L.R. (4th) (S.C.C.); Pyramid Electric Corp. v. International Brotherhood of Electrical Workers, Local 529, 1999 SKQB 114 (CanLII), 185 Sask. R. 82 (Q.B.), (which will refer to later as “Pyramid No. 1”), upheld on appeal 2000 SKCA 44 (CanLII), 199 Sask. R. 1; and Pyramid Corp. v. International Brotherhood of Electrical Workers, Local 529, 2001 SKQB 216 (CanLII), 208 Sask. R. 118 (Q.B.), (which will refer to later as “Pyramid No. 2”), upheld on appeal 2002 SKCA 59 (CanLII), 223 Sask. R. 70 (C.A.). [42] In my respectful view, although the impugned document discovery orders that were made in each of the three cases cited above and in the case now before me differ in many respects, the legal principles set out in those three cases are applicable to the case before me. They are binding on this Court and are complete answer to the positions to the contrary taken by the Board and UFCW respecting the applicable standard of review. The three cases, which were taken to the level of the Supreme Court of Canada and our Court of Appeal respectively, have high precedential authority. They have determined that orders made by the Board that are in reality document discovery orders, are orders made without jurisdiction to which the applicable standard of review is one of correctness. Canadian Pacific Air Lines Ltd., supra, at p. 22. [43] Counsel for the Board has cited several authorities in which the courts have acknowledged the special expertise of the Board in labour matters. also acknowledge the Board’s expertise in labour matters, but the Board has no special expertise in the legal issues and judicial and quasi-judicial procedural matters that are now before me. There is no need on that ground to extend deference to the decisions of the Board on such matters. The Subpoena Duces Tecum and the Board Document Orders [44] Because the Board is creature of statute and not superior court with inherent jurisdiction, it must look to its enabling legislation to determine the scope of its jurisdiction and powers. This is critical when it purports to exercise coercive powers to compel the attendance of witnesses and the production of documents or when its actions affect or restrict legal rights and freedoms, particularly rights protected by the Charter. The court observed in Canadian Pacific Air Lines Ltd., supra, at p. 23: The Board has no inherent jurisdiction, unlike superior courts whose powers of coercion find their origins in the inherent jurisdiction of those courts. [45] To address the jurisdictional issue, it is necessary to determine the scope of the statutory jurisdiction and authority granted to the Board by its enabling legislation. This has already been determined by the two Pyramid cases cited previously and by Canadian Pacific Air Lines Ltd., supra, which our Court of Appeal has ruled is applicable to the Pyramid cases. But will reproduce the statutory provisions to provide context for the analysis that follows. [46] The relevant sections of The Trade Union Act are as follows: 42 The board shall exercise such powers and perform such duties as are conferred or imposed on it by this Act, or as may be incidental to the attainment of the objects of this Act including, without limiting the generality of the foregoing, the making of orders requiring compliance with the provisions of this Act, with any regulations made under this Act or with any decision in respect of any matter before the board. 18 The board and each member thereof and its duly appointed agents have the power of commissioner under The Public Inquiries Act and may receive and accept such evidence and information on oath, affidavit or otherwise as in its discretion it may deem fit and proper whether admissible as evidence in court of law or not. [47] The relevant sections of The Public Inquiries Act are as follows: The commissioners shall have the power of summoning before them any witnesses, and of requiring them to give evidence on oath, or on solemn affirmation if they are persons entitled to affirm in civil matters, and orally or in writing, and to produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to inquire. The commissioners shall have the same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in any court of record in civil cases. [48] adopt the detailed analysis of Laing J. respecting the jurisdiction and authority of the Board in Pyramid No. 2, at pp. 126 to 129. That detailed analysis need not be repeated verbatim here. It is sufficient for the purposes of the applications before me to summarize his conclusions as follows: 1. The Board, being engaged in hearing involving “lis” between parties, acts in judicial capacity and must act in the manner of court of law in assessing legal arguments in relation to complex factual circumstances. 2. The practices, procedures and policies of the Board must be consistent with its statutory authority and the common law rules applicable to all bodies that must act in judicial capacity. The Board must be impartial and comply with the principle of “audi alteram partem”. 3. subpoena duces tecum is available to the Board to compel witness to attend the hearing with relevant documents. [My emphasis]. 4. There is no statutory authority authorizing the Board to order witness or party to conduct an investigation, whether for discovery of documents or for any other reason, or to produce statement as to documents. 5. The ability of tribunal to make and enforce an order for disclosure depends on whether it has been conferred with jurisdiction to require discovery. Where statute provides for discovery procedures, those procedures are available to all parties without reference to an order from the tribunal. The discovery procedures also contain provisions to ensure compliance with pre-hearing disclosure and discovery obligations. They have no application once trial has commenced. 6. The Board’s interpretation of Pyramid No. 1, namely that it had jurisdiction to compel Pyramid to disclose and produce documents so long as it did so at the hearing and not at the pre-hearing stage, is in error. The Board is also in error to conclude that Pyramid No. did not abrogate its discovery powers but merely enunciated the process by which those powers could be exercised. 7. The Board purported to incorporate the rules, law and practice and procedure of the Court of Queen’s Bench as part of the procedures of the Board with the proviso, based on its erroneous interpretation of Pyramid No. 1, that this procedure could only be invoked at the hearing. [49] Counsel for UFCW maintains that the subpoena duces tecum and the document discovery and production orders made by the Board in the case before me were made in compliance with the rulings in the two Pyramid cases. He maintains that the Board was simply exercising its authority at the hearing to order witnesses to produce documents and to enforce compliance with the subpoena duces tecum it had issued prior to the hearing to compel witnesses to appear at the hearing with documents. [50] would agree with this submission if that was what in fact occurred in the case before me. Unfortunately, the issue is not as simple as UFCW contends. Counsel for Wal-Mart Canada maintain that the Board is continuing to do what it was prohibited from doing by the two Pyramid cases, and that it is doing so by abusing and misusing the coercive authority that it does have. It is using its authority without fulfilling its corresponding duties that are an integral component of that authority. [51] agree with this submission of counsel for Wal-Mart Canada. By way of specific examples, the Board is misusing its authority to issue subpoena duces tecum by failing to consider the relevance and the general and broad scope of the documents sought by UFCW. In doing so it is permitting the union to utilize the subpoena to compel discovery and disclosure of documents. Likewise it is misusing its authority to compel witnesses to produce documents at the hearing by ordering compliance with the flawed subpoena and in effect ordering the witnesses to discover and disclose documents at the hearing. In doing so, it is permitting the union to conduct an examination for discovery at the hearing under the guise of proper cross-examination. [52] have reached these conclusions for several reasons. will deal first with the Board’s improper use of subpoena duces tecum. (i) The Subpoena Duces Tecum [53] In his reliance on the validity of the subpoena duces tecum, counsel for UFCW refers to James E. Dunn, “Subpoena Duces Tecum” (1983) Advocates’ Q. 94. It is not in dispute that the Board has the authority to issue such subpoena, but the Dunn article makes it clear that it cannot abuse or exceed its powers in doing so. If it wants to issue subpoena, it must do so properly and in judicial fashion. In my respectful view, the Board abused its jurisdiction and power to issue the subpoena duces tecum in the case before me in two respects. [54] The first is that the Board issued the subpoena without any prior consideration as to the relevance of the documents that it compelled Wal-Mart Canada to produce. The issue of subpoena by commissioner of an inquiry, or by the Board in this case, is not purely an administrative or ministerial act but requires the exercise of discretion after considering the relevancy and possibly the privilege of the documents sought. Canada (Restrictive Trade Practices Commission) v. Canada (Director of Investigation Research, Combines Investigation Act), 1983 CanLII 2816 (FCA), [1983] F.C. 222 (C.A.); Bortolotti v. Ontario (Ministry of Housing) (1977), 1977 CanLII 1222 (ON CA), 15 O.R. (2d) 617 (C.A.); Retail, Wholesale and Department Store Union, Locals 544, 496, 635 and 955 v. Dairy Producers Co-operative Ltd., 1984 CanLII 2396 (SK CA), [1985] W.W.R. 110, (1984), 37 Sask. R. 228 (C.A.); and Pyramid No. 2, supra. [55] The subpoena was issued on May 4, 2004, before the hearings commenced on May 7, 2004. There is accordingly no evidence that the Board exercised its discretion judicially in considering the issue of relevancy respecting the documents specified in the subpoena or the host of documents that might fall within the ambit of the generalized terms of the subpoena. It is unlikely that the Board even scrutinized the subpoena or it would likely have required UFCW to narrow the scope of the potential documents it was seeking. [56] It is evident from review of the hearing transcripts, that despite the numerous objections raised from time to time by counsel for Wal-Mart Canada respecting the scope and relevance of the potential documents required to be produced by the subpoena, the Board, by its May 21, 2004 order, affirmed the subpoena in its totality. It did so by in effect ordering Wal-Mart Canada to comply with it. The only exception to enforcing the subpoena in its totality, was that no order was made respecting the documents that UFCW advised the Board it no longer required. relate this to indicate that the Board, even at the hearing stage, was not addressing the issue of relevancy but saw its role as simply enforcing the subpoena it had issued at the request of UFCW. [57] The second reason for my conclusion that the Board abused its jurisdiction and power respecting the subpoena, is that the subpoena is far too generalized and, in reality, amounts in many instances to an order to discover documents. subpoena duces tecum usually compels the witness to produce specified documents at the hearing. It bears no resemblance to the extensive and generalized subpoena that was issued by the Board in the case before me. The subpoena is more like demand to disclose and discover documents at the hearing than direction to produce specified documents at the hearing. [58] need not repeat the wording of some of the provisions of the subpoena that reproduced previously. It is sufficient to observe that the purport of many of those provisions required the witness to discover and disclose unspecified documents such as all communications between management, internal memos and the like. The fact that the term “produce” was used, rather than the terms “discover” or “disclose”, does not change the nature, purport or effect of the document demand. By analogy, promissory note does not become mortgage simply because it is named mortgage. It is promissory note because it is of the nature of promissory note and it remains so despite the name given to it. The wording of the subpoena in this case contains terms not unlike those in the Board order that was struck down in Pyramid No. 1. The order was reproduced and discussed in Pyramid No. 2. [59] In Dalgleish v. Basu, 1974 CanLII 913 (SK QB), [1975] W.W.R. 326 (Sask. Q.B.), Bayda J. as he then was, set aside those portions of subpoena duces tecum that required witness to in effect discover and produce documents even though the term “produce” and not “discover” was used. The subpoena, reproduced in part, at p. 327, required the witness to “bring with you and produce at the time and place aforesaid all notes, memoranda, minutes, letters, correspondence, charts, records, reports, or any other writings or documents in your possession, or having been at any time in your possession, in any way connected with or related to matters between DR. LAKSHMI BASU and the Broadview Union Hospital .”. [Emphasis mine]. [60] The court concluded that the description was so broad that the subpoena was really an attempt to compel the College of Physicians and Surgeons to make discovery of its documents. The court observes at p. 330: The subpoena should be used for only that purpose for which it was intended and no other. If justice requires discovery of documents, then appropriate statutory provisions should be made if no procedural rules now exist for such discovery. In short, resort should not be had to side door if the legislators have not seen fit to open the front door. [61] The case is also authority for the principle that relevancy of the documents sought in the subpoena duces tecum must be assessed from the perspective of the scope and nature of the proceedings, the issues involved and the defences proposed to be advanced. The court in Dalgleish, supra, adopted the following quote from Wigmore on Evidence, Vol. 8, McNaughton Revision (1961), s. 2200, p. 127: the right of access is to documentary evidence not to all documents, but to such documents as are evidence. [62] realize that s. 18 of The Trade Union Act authorizes the Board to consider evidence that may not be admissible in court of law. But the Board must nevertheless restrict its consideration to evidence that is relevant to the issues before it. In exercising its discretion as to what is relevant evidence to the dispute before it, it is performing judicial or quasi-judicial function that precludes it from making its decision on the basis of irrelevant or improper considerations. [63] Even if the subpoena duces tecum does not in effect compel party to make discovery of its documents, the documents must be described with reasonable degree of particularity. Dunn, at p. 98, states that the rule authorizing litigant to use subpoena is wide so that resort to it must be reasonable. He also states that subpoena duces tecum is oppressive if the description of the documents is too broad or general or if it requires an individual to make an onerous and far-reaching search for the documents. An objection to the generality of the description of documents in subpoena duces tecum was upheld in Central Canada Potash Co. v. Saskatchewan, [1973] S.J. No. 223 (Q.B.) (QL) and in Dalgleish, supra. [64] Although not binding on the Board or the court, the observations of the Ontario Labour Relations Board, per G.W. Adams, Vice-Chair, in Kotinopoulos v. Becker Milk Co., [1974] O.L.R.B. Rep. 732 are pertinent to the issue before me. The Board states at para. 7: Obviously this power is substantial one and must be exercised in very circumspect manner. subpoena duces tecum cannot be used as an instrument to harass or to annoy unreasonably an opponent; And subpoena duces tecum should state with reasonable particularly the documents which are to be produced; Furthermore, although the limits of this principle are vague, subpoena duces tecum should not be used “for the purpose of fishing, i.e., endeavouring, not to obtain evidence to support [a] case, but to discover whether [one] has case at all”; And finally, subpoena to party will be set aside as abusive if great numbers of documents are called for and it appears that they are not sufficiently relevant (ii) The Board Document Orders [65] The Board orders in issue are contained in Schedules “B” and “C” to this judgment. summarized and commented on them extensively when setting out the background facts and need not repeat those comments here. [66] Many of the comments I have made respecting the subpoena duces tecum issued by the Board in this case, apply in principle to the Board’s document discovery and production orders. I have concluded for the reasons I will outline, that the Board exceeded its jurisdiction and abused its powers in making the discovery and production orders it did against Wal-Mart Canada. [67] The Board orders are inextricably linked to the subpoena duces tecum. In my respectful view, they are really not production orders at all, but are orders directing Wal-Mart Canada to comply with the subpoena duces tecum which in effect directs Wal-Mart Canada to discover and disclose documents. The Board itself acknowledged this by the comments it made in connection with its June 24, 2004 oral order. The Board went even farther by conducting its own discovery of documents from counsel for Wal-Mart Canada as recorded in the May 25 transcript, pp. 28-31, attached as Schedule “D” to this judgment. [68] The Board also observed that its previous written order had not been complied with because the management PowerPoint presentation had not been disclosed before, (even though it was not called for in the subpoena or spelled out in the previous order). In response to the objections of Wal-Mart Canada’s counsel that the hearing was being conducted as an examination for discovery, the Board observed that even though it had no jurisdiction to hold examinations for discovery, this did not preclude the parties from utilizing the equivalent ability to discover, in the course of hearing, what documents exist. [69] As observed previously, the Board is creature of statute. It cannot expand its jurisdiction beyond that which is given to it by its governing legislation. Nor can it expand its jurisdiction by utilizing powers and procedures that are available to it in manner for which they were not designed nor intended. Unfortunately, the Board has once more misconstrued clear decision of the Court that it has no jurisdiction respecting the discovery of documents. Laing J. in Pyramid No. observed that the Board misconstrued the decision of Dawson J. in Pyramid No. 1. The case before me demonstrates that the Board misconstrued the decision of Laing J. in Pyramid No. by concluding that he recognized its jurisdiction and authority to utilize subpoena duces tecum and document production order in the manner it has done in the case before me. [70] The transcripts of the hearings also contain numerous comments of counsel for UFCW that clearly indicate he is using the process as fishing expedition with no knowledge or even reasonable suspicion that the documents he seeks are relevant to the issues before the Board. In fact his cross-examination appears to consist more of asking the witnesses about potential documents than questions that are relevant to the issues. few examples are evident in the June 24, 2004 transcript at pp. 381, 401, 405 and 422-24, attached as Schedule “E” to this judgment. [71] Counsel for UFCW characterizes the applications by Wal-Mart Canada as stalling tactics and an attempt to interfere with his cross-examination. These allegations are ill founded because the applications raise legitimate concerns and legal issues. As well, utilizing cross-examination as an examination for discovery, is an abuse of the right of cross-examination even though the law is clear that counsel has considerable latitude in cross-examination. The delays in this case have arisen primarily from the manner in which UFCW has improperly utilized subpoena duces tecum and cross-examination to conduct an examination for discovery and “fishing expedition”. Wal-Mart Canada had no option, considering the direction in which the hearing was progressing, but to bring its application before the court. [72] The courts have often observed that disputes can be resolved by specialized tribunals more speedily than by the courts because of the summary procedures utilized by such tribunals. If tribunals are permitted to allow their hearings to be turned into protracted examinations for discovery and “fishing expeditions”, one of the significant benefits of tribunal hearings will be lost. As well, in such cases, the actual and perceived impartiality of the tribunal will be undermined. As stated previously, tribunals like the Board in this case perform more than pure administrative functions. significant aspect of their roles is performing judicial and quasi-judicial functions. In doing so they must remain impartial and be seen to be impartial. [73] In the case before me, dispassionate observer could well conclude that the impartiality of the Board has been compromised by the manner in which it has permitted UFCW to conduct and direct the hearing process. It appears that the role of the Board was often restricted to enforcing the demands made by UFCW and that it, rather than the Board, was controlling the course that the hearing took. Seldom, as in the case before me, is dispute or issue so one-sided that one party is successful in all of its applications while the other is successful in none. make these observations to illustrate that the issues raised by Wal-Mart Canada before me are ones of substance, not just procedure. [74] The requirement that evidence, including documentary evidence, be relevant before it can be properly considered, is substantive issue that goes to the heart of the legitimacy of judicial or quasi-judicial dispute determination. This legal requirement is not an annoying technicality but is an important consideration in determining whether there has been denial of natural justice where there has been reliance on improper considerations rather than relevant evidence. The comments of the Board throughout the hearing and in the orders themselves, demonstrate that it did not consider the issue of relevancy when ordering production of the documents. It left that issue to be addressed by Wal-Mart Canada if and when the documents were tendered into evidence. [75] The authorities are clear that relevancy must be considered before an order is made for the production of document, not just when it is tendered as evidence. The following comments were made by the Board in this respect at pp. 22-23 of the May 25, 2004 transcript: So at any point when party is seeking to admit any of the documents in evidence, objections can be made on the basis of relevancy or anything else, any other objection that might pertain at that time. But in any event what we are saying is that the subpoena must be responded to. [76] It appears that some of the documents sought are in the possession and control of third party non-resident American corporation. In such case, additional factors and procedures should at least have been considered. These are set out in L.L.A. v. Beharriell (1995), 1995 CanLII 52 (SCC), 130 D.L.R. (4th) 422 (S.C.C.), and the companion case of R. v. O’Connor (1995), 1995 CanLII 51 (SCC), 103 C.C.C. (3d) (S.C.C.). They include the requirement of “likely relevance” of the documents to an issue in the proceedings or to the competence of the witness to testify. The cases are not on point on their facts, but they illustrate that the bald assertion that the documents may contain information that is relevant does not meet the “likely relevancy” threshold. As well, in considering the relevance of document, reliance cannot be placed upon illegitimate purposes or discriminatory and stereotypical reasoning. [77] Solicitor-and-client privilege respecting some of the documents was also raised by counsel for Wal-Mart Canada. Yet the Board ordered the production of those documents without ruling on the issue or without providing means by which the confidentiality of the documents could be maintained until ruling was made. Dunn, in his article referred to previously, at pp. 104-105, sets out the procedure and the factors that must be considered before the production of such documents can be ordered. Although his article pertains to production of documents identified in subpoena duces tecum, the same considerations apply to production order made by the Board at hearing, particularly where it simply orders production of the documents referred to in the subpoena which has the effect as well of ordering the discovery of documents. [78] In fairness to counsel for UFCW, he suggested to the Board that it adopt and follow the procedure set out by Dunn in his article that referred to previously. But it appears that the Board was of the view that this was unnecessary. [79] Relevance, the scope of the proceedings and stereotypical reasoning, are issues that have significance to Wal-Mart Canada’s Charter challenge respecting s. of The Trade Union Act. It alleges in effect that the Board has interpreted s. to authorize it to dismiss any application by employees where there has been any form of communication or expression made by an employer to an employee. Wal-Mart Canada says that in doing so, the Board is using s. to penalize or restrict the rights of the employer and employee to freedom of expression, thereby violating s. 2(d) Charter rights. Comments made by counsel for UFCW to the Board during the hearing appear to imply that this is not only so, but that even the preference or “predisposition” of an employer not to have third party representation, is sufficient to bring s. into play. [80] As an alternative to quashing the production orders sought by Wal-Mart Canada, considered setting out some guidelines and ordering the Board to reconsider Wal-Mart Canada’s objections to document discovery and production. But the Board has repeatedly dismissed each of Wal-Mart Canada’s objections out of hand. Such an alternative order of this Court is likely feasible only if new panel is struck. This in turn will create significant problems, delays and inconvenience to the parties. In any event, it appears that Wal-Mart Canada has already produced most of the documents that it does have. UFCW previously obtained from union website two of the American documents that it seeks and tendered them into evidence before the Board. [81] As well, the Board has demonstrated a reluctance to give up its perceived powers of discovery despite two previous decisions of this Court and the Court of Appeal. If it interprets this current decision of the Court in the same fashion, an order to reconsider the issues may well be of little value to the applicant and simply spawn yet another application. In my view, the only feasible option open to me is to grant the relief that is sought by quashing the two impugned orders. [82] Before moving on to address the Charter challenge, must comment briefly on the connection between the issue of the Board’s impugned orders and the issue of the constitutionality of s. of The Trade Union Act. There is considerable factual nexus between the two applications. In its June 24, 2004 oral discovery and production order, the Board observed that it is not an unfair labour practice for an employer to say that it is not in favour of third party representation. It also observed that this is usually the case. It went on to observe that employer interference is seldom overt but is communicated to employees more insidiously. It acknowledged that the union is attempting to rely on s. as defence to an unfair labour practice allegation and is attempting to demonstrate that there are documents that disclose management influence. [83] The validity of these observations are not challenged. But the Board went on to order the disclosure and production of all the documents sought by the union, including internal management documents and documents of the American corporation. It did so without any apparent consideration as to their relevance or likely relevance. It also did so after hearing the submission of UFCW to the effect that s. can be utilized by the Board to infer employer influence in cases where the employer’s corporate structure and culture is such that it is difficult to unionize, in cases where the employer prefers not to be unionized and in cases where the employer makes any communication to employees even though the communication is not intimidating or coercive. [84] am not at this stage of the proceedings prepared to conclude, as suggested by Wal-Mart Canada, that the Board has already interpreted s. and the scope of the employer dominated issue before it, by adopting the position advanced by UFCW. acknowledge that one could speculate that this is so in view of the Board’s willingness to order the discovery and production of documents that are said to establish this corporate culture. But attribute this to its failure to assess the relevance of such documents, not to determination by it that the documents are relevant to the issue before it. If am wrong and the Board has interpreted s. in accordance with UFCW’s submissions, then such an interpretation of s. appears to be on collision course with s. 2(d) of the Charter. Wal-Mart Canada would then have firm factual foundation on which to bring its constitutional challenge application. The Charter Challenge [85] Although Wal-Mart Canada’s Charter challenge is closely linked to its applications to quash the Board orders, different considerations apply and must deal with them separately. It would be relatively easy matter to simply defer the issue to the Board for its ruling in the first instance as suggested by all the parties, (other than Wal-Mart Canada and the Interested Parties), on the basis of Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54 (CanLII), [2003] S.C.R. 504. [86] The facts of that case however are somewhat different from the one before me, including the fact that the tribunal in the Martin case was vested with more extensive express authority to decide questions of law than is the Board in this case. As well, judicial review application in the case before me would have been brought to the Court in any event on grounds other than the alleged Charter breach. The expediency and economy of permitting the Board to decide the Charter issue in the first instance so that its proceedings are not put on hold and fragmented, is not as significant as if the judicial review application before the Court pertained only to the Charter issue. [87] One aspect of Wal-Mart Canada’s submission is that the Board has already interpreted s. very broadly which establishes that its effect violates s. 2(d) of the Charter. Wal-Mart Canada submits that this is evidenced in two ways. First, by the manner in which the Board has permitted the proceedings to be conducted. Second, by the focus of the hearing on the alleged anti-union philosophy of Wal-Mart Canada instead of on whether or not Wal-Mart Canada has in fact influenced its employees to bring their applications against UFCW. Wal-Mart Canada submits that it would be futile to remit the matter back to the Board for the determination of an issue that it has already been determined. [88] have already addressed and rejected this submission of Wal-Mart Canada in my conclusions reached in conjunction with the issues raised by the application to quash the Board orders. move on to address the other aspects of Wal-Mart Canada’s Charter application. To provide some context for my conclusions, begin by reproducing the relevant statutory provisions. [89] Section of The Trade Union Act reads as follows: The board may reject or dismiss any application made to it by an employee or employees where it is satisfied that the application is made in whole or in part on the advice of, or as result of influence of or interference or intimidation by, the employer or employer’s agent. [emphasis added] [90] The word “advice” is defined by The Pocket Oxford Dictionary, 8th ed., as follows: advice n. recommendation on how to act. information given; news. formal notice of transaction. [emphasis added] [91] Section 2(d) of the Charter reads as follows: 2. Everyone has the following fundamental freedoms: (d) freedom of association. [92] Wal-Mart Canada submits that the words have emphasized in s. offend the Charter and render the whole of the section unconstitutional. It relies on the definition of the word “advice” that have set out above and maintains that s. restricts the freedom of an employer to communicate with or to provide information to its employees, even by simply advising an employee to join the union or to seek legal advice. It concedes that if the communication amounts to intimidation or coercion, it is not constitutionally protected. [93] Wal-Mart Canada develops its submission by relying on various Supreme Court of Canada authorities that hold that even purely commercial expression falls within the ambit of s. 2(d) of the Charter. R. v. Big Drugs, 1985 CanLII 69 (SCC), [1985] S.C.R. 295; Rocket v. Royal College of Dental Surgeons of Ontario, 1990 CanLII 121 (SCC), [1990] S.C.R. 232; RJR-MacDonald Inc. v. Canada (Attorney General), 1995 CanLII 64 (SCC), [1995] S.C.R. 199; Ford v. Quebec (Attorney General), 1988 CanLII 19 (SCC), [1988] S.C.R. 712; R. v. Guignard, 2002 SCC 14 (CanLII), [2002] S.C.R. 472; and Harper v. Canada (Attorney General), 2004 SCC 33 (CanLII). [94] In Harper, supra, at para. 17, the court held that freedom of expression protects not only the speaker who expresses the information, but also protects the listener and reader of that expression. In this fashion, the Charter protects listeners and readers as well as speakers. At para. 139, the court held that because the impugned registration and disclosure provisions in the case before it have the effect of limiting free expression, they are unconstitutional even though their purpose is not to restrict free expression. [95] Wal-Mart Canada’s position has considerable merit considering the often close and special nature of the relationship between an employer and an employee that has long been recognized by the law. If s. has the effect of restricting freedom of expression between an employee and an employer that does not constitute interference or coercion, then s. may well violate s. 2(d) of the Charter and, if not saved by s. 1, it is unconstitutional. Section was in place before the Charter was enacted and may well now be out of touch with reality by permitting labour relations board, in stereotypical and patronizing manner, to disregard the deliberate and informed actions and legitimate wishes of employees on the basis of irrelevant and improper considerations. [96] What is somewhat unique about s. however, as pointed out by counsel for the Attorney General for Saskatchewan, is that on its face it is not blanket legislative prohibition of employee and employer communication. Rather it is provision that permits the Board to reject or dismiss an application by employees if the Board is satisfied that the employees’ application is made on the advice of the employer or as result of its influence or intimidation. But as pointed out by counsel for Wal-Mart Canada, s. does not distinguish between what kinds of advice or influence can be relied upon by the Board to reject or dismiss an employees’ application. [97] have difficulty following Wal-Mart Canada’s submission that s. on its face is blanket prohibition of communications or advice from an employer to an employee. appreciate however that the effect of s. may violate freedom of expression guaranteed by the Charter if s. is interpreted and relied upon as legal authority to penalize or disadvantage an employee in proceedings before labour relations board because of communication that is protected by the Charter. In my respectful view, Wal-Mart Canada has not demonstrated that the effect of s. is the Charter violation that it alleges. It has referred me to no authority that has interpreted s. in such manner other than what it characterizes as the decision of the Board in the case before me. [98] realize that UFCW relies on s. as defence in its reply to the unfair labour practice applications made by certain Wal-Mart Canada employees. also realize that UFCW’s assertion that Wal-Mart Canada’s anti-union culture is relevant to the matters before the Board is in effect submission that an anti-union culture on the part of Wal-Mart Canada provides UFCW with defence on the basis of s. 9. also realize that there is considerable merit in Wal-Mart Canada’s submission that the Board has interpreted s. in this manner by allowing the hearing to focus on UFCW’s allegations about Wal-Mart Canada’s anti-union culture. Wal-Mart Canada submits that this is an improper and unacceptable “witch-hunt” on the part of UFCW to punish Wal-Mart Canada for its beliefs, opinions, thoughts or political views. Wal-Mart Canada says that if the Board had not so interpreted s. 9, it would have focused on the testimony of all the witnesses before it that Wal-Mart Canada has not intimidated its employees. [99] Although Wal-Mart Canada has legitimate concerns about the direction the hearing has taken to date, as indicated previously, cannot agree that the Board has ruled on or interpreted s. in the fashion submitted by Wal-Mart Canada. Wal-Mart Canada’s submission at this juncture is speculative and premature. Hopefully my judgment quashing the two Board orders will assist all the parties, including the Board, to get on with the hearing and focus on the evidence that has already been heard and the proper issues raised by the matters before it. Once this has been done and the Board has given its decision, including decision on the Charter issue if Wal-Mart Canada pursues its application before the Board, the Court will have better factual foundation before it if asked to rule on the constitutionally of s. 9. [100] If the decision of the Board on the interpretation of s. and on the Charter issue is unfavourable to Wal-Mart Canada, it can seek judicial review of those decisions. As illustrated by the authorities, the Board has no special expertise respecting Charter issues and the Court need not extend any deference to the Board’s decision on Charter issue. Such decisions are understandably reviewed by the court on correctness standard. If this were not the case, fundamental Charter rights could be defined and determined by an unreasonable decision. patently unreasonable standard precludes intervention by the court except in the case of an irrational decision. decision that is “unreasonable” but is not “irrational” cannot be set aside. Canada (Attorney General) v. Public Service Alliance of Canada, 1993 CanLII 125 (SCC), [1993] S.C.R. 941; and Regina Board of Police Commissioners v. Regina Police Assn. Inc. (1996), 1996 CanLII 4983 (SK CA), 134 D.L.R. (4th) 313 (Sask. C.A.). [101] In my respectful view, for the reasons have given, Wal-Mart Canada’s application respecting the constitutionally of s. is premature in the sense that do not have sufficient factual foundation or context to properly measure s. of The Trade Union Act against s. 2(d) of the Charter. proper factual foundation is especially important in cases where it is the effects of the legislation that are alleged to offend the Charter. Danson v. Ontario (Attorney General), 1990 CanLII 93 (SCC), [1990] S.C.R. 1086. As have not been able to rule on the merits of the constitutional issue, the constitutional challenge application is dismissed without prejudice to Wal-Mart Canada to bring its application back to the Court after the Board has rendered its decision or once it can provide better factual foundation and context to support its application. Conclusions 1. The orders of the Board dated May 21, 2004 and June 14, 2004 are quashed with costs payable forthwith to Wal-Mart Canada by UFCW. 2. The short-term stay of the proceedings of the Board that extended on July 13, 2004 is terminated forthwith. 3. The application by Wal-Mart Canada for an order declaring s. 9 of The Trade Union Act to be unconstitutional and of no force and effect is dismissed without prejudice to Wal-Mart Canada to bring its application back to the Court after the Board has rendered its decision or once Wal-Mart Canada can provide a better factual foundation and context to support its application. If there is an issue of costs between the parties respecting the constitutional challenge application that they are unable to resolve, any party has leave, on seven days’ notice to the others, to bring an application before me to determine the costs issue. [102] commend counsel who were involved in these applications for their efforts in putting together excellent materials in the short time frame available to them. In so doing they expedited the applications and their resolution by the Court.
Wal-Mart Canada applies for an order pursuant to Rule 664 and Rule 673 of The Queen's Bench Rules of Court quashing the orders of the Board. The orders require Wal-Mart Canada to discover and produce documents. Wal-Mart Canada says that the Board does not have the jurisdiction to use the subpoena or make the disclosure and productions orders in the manner in which it has done. Wal-Mart Canada also applies for an order declaring s. 9 of The Trade Union Act unconstitutional. HELD: The orders of the Board are quashed with costs payable forthwith to Wal-Mart Canada by UFCW. The application for an order declaring s. 9 of The Trade Union Act to be unconstitutional and of no force and effect is dismissed without prejudice to Wal-Mart Canada to bring its application back. 1) The Court concluded that a review of the transcript was essential to the proper determination of the issues raised by the application and that it must be considered part of the record.  2) The case law has determined that orders made by the Board that in reality are document discovery orders, are orders made without jurisdiction to which the applicable standard of review is one of correctness. 3) The Board abused its jurisdiction and power to issue the subpoena duces tecum in two respects. First the Board issued the subpoena without any prior consideration as the relevance of the documents that it compelled Wal-Mart Canada to produce. The subpoena was issued before the hearings commenced. There is no evidence that the Board exercised its discretion judicially in considering the issue of relevancy. It is unlikely that the Board even scrutinized the subpoena or it would have likely required the scope of it to be narrowed. Second, the subpoena was far too generalized and amounts to an order to discover documents. The Board must restrict its consideration to evidence that is relevant to the issues before it. It is precluded from making its decision on the basis of irrelevant or improper considerations. 4) The Board exceeded its jurisdiction and abused its power in making the discovery and production orders it did. The comments of the Court with respect to the subpoena duces tecum apply in principle to the Board's discovery and production orders. The orders were not production orders but directed Wal-Mart to comply with the subpoena duces tecum.  5) The requirement that evidence, including documentary evidence, be relevant before it can be properly considered, is a substantive issue that goes to the heart of the legitimacy of judicial or quasi-judicial dispute determination. It is an important consideration in determining whether there has been a denial of natural justice where there has been reliance on improper considerations rather than relevant evidence. 6) Some of the documents sought are in the possession and control of a third party non-resident American corporation. Additional factors and procedures should at least have been considered such as the 'likely relevance' of the documents to an issue. Solicitor and client privilege was raised with respect to some of the documents yet the Board ordered the production of those documents without ruling on the issue or without providing a means by which the confidentiality of the documents could be maintained until a ruling was made. 7) The Board has demonstrated a reluctance to give up its perceived powers of discovery despite two previous decisions of the Court of Queen's Bench and the Court of Appeal. If it interprets this decision of the Court in the same fashion, an order to reconsider the issues would be of little value to the applicant. The only feasible option is to grant the relief that is sought by quashing the two orders.  8) Wal-Mart Canada submits that the Board has already interpreted s.9 of The Trade Union Act very broadly so that its effect violates s. 2(d) of the Charter. Wal-Mart Canada submits this is evidenced in two ways. First, by the manner in which the Board has permitted the proceedings to be conducted and second, by the focus of the hearing on the alleged anti-union philosophy of Wal-Mart Canada instead of on whether or not Wal-Mart Canada has in fact influenced its employees to bring their applications against UFCW. If the Board has interpreted s. 9 of The Trade Union Act in accordance with UFCW's submissions, then such an interpretation appears to be on a collision course with s.2(d) of the Charter of Rights. If s. 9 of the Act has the effect of restricting freedom of expression between an employee and an employer that does not constitute interference or coercion, then s. 9 may well violate s. 2(d) of the Charter and if not saved by s. 1 of the Charter, is unconstitutional. However, Wal-Mart Canada's application respecting the constitutionality of s. 9 of the Act is premature in the sense that the Court did not have a sufficient factual foundation or context to properly measure s. 9 of the Act against s. 2(d) of the Charter.