A Saskatchewan court has dismissed a charge by retail giant Wal-Mart Canada that the province’s labour relations board is biased against it. Wal-Mart wanted the Saskatchewan Court of Queen’s Bench to bar the Saskatchewan Labour Relations Board, as presently constituted, from hearing or making any orders involving Wal-Mart after its former vice-chair went public with complaints about interference by the province. But the retailer simply didn’t have enough evidence to prove there was any bias at the labour board.
Wal-Mart became concerned about the Saskatchewan Labour Board’s objectivity following comments made by Walter Matkowski, the former vice-chair of the board. His term expired on March 1, 2006, and was not renewed. He said his departure came about through the influence of certain unions with the Department of Labour. He launched an action for damages alleging wrongful conduct by the province.
Matkowski took part in an interview in which he suggested the province’s Department of Labour interfered with the operation of the board. An example he gave was that the department required members of the board to read the newsletter of the Saskatchewan Federation of Labour. Articles in that publication were critical and disparaging of Wal-Mart. The matter was discussed in the Saskatchewan legislature. When Wal-Mart became aware of these circumstances, it filed the application.
Wal-Mart said the actions of the union, the interference by the province’s NDP government and the presence of certain publications demonstrate the Saskatchewan Labour Relations Board is biased or, at the very least, there is justification for reasonable apprehension of bias against Wal-Mart.
It argued the only way to rectify the situation was to prohibit the board from holding hearings which involve Wal-Mart.
The Saskatchewan Court of Queen’s Bench was critical of the evidence introduced by Wal-Mart. An affidavit by Terry Stanley, a store manager in Moose Jaw, Sask., sworn on June 15, 2006, and filed in support of the application, contained only three paragraphs but was four pages long. The reason for its length? A long list of exhibits. (See below for the complete list.)
There were also extracts from Hansard, an unsigned draft affidavit by Matkowski with 39 exhibits attached and a transcript of a “John Gormley Live” radio broadcast on May 8, 2006.
The UFCW’s position
Local 1400 of the UFCW, added as a party to the case with the consent of Wal-Mart, sought an order by the court striking and removing virtually all of the material filed by Wal-Mart in support of its application.
The court said Queen’s Bench rule 319 explicitly states what may be contained in an affidavit: “Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may under special circumstances be admitted.”
Justice Gerein said the exception in rule 319 did not apply in this case.
“Even if Wal-Mart had filed an interlocutory motion, which it did not, Mr. Springer does not attest to anything based on information and belief,” the court said. “Rather, he swears that he has ‘personal knowledge of the facts and matters herein disposed to.’ He then goes on to swear … that various exhibits are attached to his affidavit. What does that achieve?”
The court said it was therefore compelled to examine the exhibits to determine their admissibility.
“To put it another way, Mr. Springer does no more than prove that copies of 27 documents are attached as exhibits to his affidavit,” the court said. “He says nothing in his affidavit about the content of the documents. He discloses nothing about their authenticity or where they originated. And, above all, he offers nothing about whether the information they contain is true, accurate or reliable.”
Justice Gerein said, even taking a generous approach, some of the exhibits filed by Wal-Mart had to be dismissed out of hand. The profiles of the former Minister of Labour and the membership list were obviously not relevant, the court said.
On the other hand, the 14 Saskatchewan Federation of Labour newsletters were admissible to prove they exist and to prove what they contain. The same can be said about the application to the board, the decision and the newspaper articles.
“However, none of these exhibits are admissible to prove the accuracy or truth of what they contain,” said Justice Gerein. “The same must be said about the transcript of the radio broadcast. It is attached to an affidavit of one Ryan Kraikas who attests that he prepared the transcript. That does nothing more than prove he performed that task. It says nothing about the accuracy, truth or reliability of what is contained in the transcript.”
The court was also dismissive of Matkowski’s affidavit and his statement of claim against the province. The affidavit was not sworn and as such was not admissible. The statement of claim was nothing more than allegations by a plaintiff in a pleading, the validity of which have not been tested.
“I am mindful of the old adage that ‘pleadings are nothing more than legalized lies,’” said Justice Gerein. “The truth will not be known until there has been a trial.”
Wal-Mart argued the court should follow the principled approach to the admissibility of the various documents and admit them into evidence on the basis of necessity and reliability. It referenced Telus Communications Inc. v. Telecommunications Workers Union, [2005] F.C.J. No. 1253.
But Justice Gerein rejected that argument, as the documents met neither the necessity or reliability requirements.
“There is no necessity for their admission,” said Justice Gerein. “Mr. Matkowski is around and about. He must be available to swear an affidavit. The critical allegations originate with him. Absent any explanation for his absence, there is no basis upon which to conclude that it is necessary to accept the proffered documents as evidence.”
Reliability presented an equal problem, the court said.
“Nothing is under oath. Since everything attributed to Mr. Matkowski has an aura of self-interest, it does not generate confidence in its reliability,” the court said. “At no time have the allegations been tested for accuracy or truthfulness. In reality, contradictions are found within the very documents. A good example is the Leader Post article of May 11, 2006. It reports Mr. Matkowski as saying that members of the board are required to read the Labour Reporter newsletter. Two paragraphs later a spokesperson for the Department of Labour is reported as saying the board has no required reading. It is impossible to say which account is true.”
The court also punched holes in the extracts from Hansard. While the extracts were admissible under the Saskatchewan Evidence Act, they proved nothing, said Justice Gerein.
“That provision enables the extracts to be filed to prove what was said, but not as proof that the remarks were true,” the court said. “They are two entirely different things.”
The court’s decision
Wal-Mart alleged there was interference with the board and that members were required to read publications which were highly disparaging of Wal-Mart. But there was absolutely no evidence before the court to prove the allegation, said Justice Gerein.
While the newsletters contained negative comments about Wal-Mart, there was no admissible evidence to prove the newsletters were provided to the board or, much more importantly, that any member actually read them, the court said.
“In the same vein, Mr. Matkowski has not come forward to assert his allegations under oath,” said Justice Gerein. “Without such evidence it is impossible to conclude that bias exists within the Saskatchewan Labour Relations Board or that there is justification for a reasonable apprehension of bias. To conclude otherwise, this court would be acting on pure conjecture or fantasy. That is not good enough.”
The application was dismissed.
For more information see:
• Wal-Mart Canada Corp. v. Saskatchewan (Labour Relations Board), 2006 CarswellSask 453 (Sask. Q.B.)
Text of the affidavit filed by Wal-Mart
Below is the partial text of the affidavit filed by Terry Stanley, a Wal-Mart store manager in Moose Jaw, Sask.:
1. That I am the store manager at Wal-Mart Canada Corp. department store in Moose Jaw, Sask., and, as such, have personal knowledge of the facts and matters herein deposed to, except where stated to be on information and belief, and where so stated, I verily believe the same to be true.
2. Attached hereto and marked as exhibits to this affidavit are:
•a copy of the profile of Deb Higgins, former Minister of Labour for the Government of Saskatchewan from the Government of Saskatchewan website;
•a copy of the profile of Deb Higgins, former Minister of Labour for the Government of Saskatchewan from the caucus website;
•a copy of a membership and contact list from the Saskatchewan Federation of Labour website;
•14 issues of the Saskatchewan Federation of Labour’s newsletter;
•a copy of an application to the Saskatchewan Labour Relations Board dated July 20, 2004 from the UFCW;
•a copy of a decision from the Saskatchewan Labour Relations Board dated Jan. 20, 2005.
•two articles from the Regina Leader-Post newspaper;
•an article from the Saskatoon Star-Phoenix;
3. I make this affidavit in support of an application for an order prohibiting the Saskatchewan Labour Relations Board as presently constituted from hearing and/or determining any matter and/or making any orders involving Wal-Mart Canada Corp. or until further order of this Honourable Court.
Matkowski took part in an interview in which he suggested the province’s Department of Labour interfered with the operation of the board. An example he gave was that the department required members of the board to read the newsletter of the Saskatchewan Federation of Labour. Articles in that publication were critical and disparaging of Wal-Mart. The matter was discussed in the Saskatchewan legislature. When Wal-Mart became aware of these circumstances, it filed the application.
Wal-Mart said the actions of the union, the interference by the province’s NDP government and the presence of certain publications demonstrate the Saskatchewan Labour Relations Board is biased or, at the very least, there is justification for reasonable apprehension of bias against Wal-Mart.
It argued the only way to rectify the situation was to prohibit the board from holding hearings which involve Wal-Mart.
The Saskatchewan Court of Queen’s Bench was critical of the evidence introduced by Wal-Mart. An affidavit by Terry Stanley, a store manager in Moose Jaw, Sask., sworn on June 15, 2006, and filed in support of the application, contained only three paragraphs but was four pages long. The reason for its length? A long list of exhibits. (See below for the complete list.)
There were also extracts from Hansard, an unsigned draft affidavit by Matkowski with 39 exhibits attached and a transcript of a “John Gormley Live” radio broadcast on May 8, 2006.
The UFCW’s position
Local 1400 of the UFCW, added as a party to the case with the consent of Wal-Mart, sought an order by the court striking and removing virtually all of the material filed by Wal-Mart in support of its application.
The court said Queen’s Bench rule 319 explicitly states what may be contained in an affidavit: “Affidavits shall be confined to such facts as the witness is able of his own knowledge to prove, except on interlocutory motions, on which statements as to his belief, with the grounds thereof, may under special circumstances be admitted.”
Justice Gerein said the exception in rule 319 did not apply in this case.
“Even if Wal-Mart had filed an interlocutory motion, which it did not, Mr. Springer does not attest to anything based on information and belief,” the court said. “Rather, he swears that he has ‘personal knowledge of the facts and matters herein disposed to.’ He then goes on to swear … that various exhibits are attached to his affidavit. What does that achieve?”
The court said it was therefore compelled to examine the exhibits to determine their admissibility.
“To put it another way, Mr. Springer does no more than prove that copies of 27 documents are attached as exhibits to his affidavit,” the court said. “He says nothing in his affidavit about the content of the documents. He discloses nothing about their authenticity or where they originated. And, above all, he offers nothing about whether the information they contain is true, accurate or reliable.”
Justice Gerein said, even taking a generous approach, some of the exhibits filed by Wal-Mart had to be dismissed out of hand. The profiles of the former Minister of Labour and the membership list were obviously not relevant, the court said.
On the other hand, the 14 Saskatchewan Federation of Labour newsletters were admissible to prove they exist and to prove what they contain. The same can be said about the application to the board, the decision and the newspaper articles.
“However, none of these exhibits are admissible to prove the accuracy or truth of what they contain,” said Justice Gerein. “The same must be said about the transcript of the radio broadcast. It is attached to an affidavit of one Ryan Kraikas who attests that he prepared the transcript. That does nothing more than prove he performed that task. It says nothing about the accuracy, truth or reliability of what is contained in the transcript.”
The court was also dismissive of Matkowski’s affidavit and his statement of claim against the province. The affidavit was not sworn and as such was not admissible. The statement of claim was nothing more than allegations by a plaintiff in a pleading, the validity of which have not been tested.
“I am mindful of the old adage that ‘pleadings are nothing more than legalized lies,’” said Justice Gerein. “The truth will not be known until there has been a trial.”
Wal-Mart argued the court should follow the principled approach to the admissibility of the various documents and admit them into evidence on the basis of necessity and reliability. It referenced Telus Communications Inc. v. Telecommunications Workers Union, [2005] F.C.J. No. 1253.
But Justice Gerein rejected that argument, as the documents met neither the necessity or reliability requirements.
“There is no necessity for their admission,” said Justice Gerein. “Mr. Matkowski is around and about. He must be available to swear an affidavit. The critical allegations originate with him. Absent any explanation for his absence, there is no basis upon which to conclude that it is necessary to accept the proffered documents as evidence.”
Reliability presented an equal problem, the court said.
“Nothing is under oath. Since everything attributed to Mr. Matkowski has an aura of self-interest, it does not generate confidence in its reliability,” the court said. “At no time have the allegations been tested for accuracy or truthfulness. In reality, contradictions are found within the very documents. A good example is the Leader Post article of May 11, 2006. It reports Mr. Matkowski as saying that members of the board are required to read the Labour Reporter newsletter. Two paragraphs later a spokesperson for the Department of Labour is reported as saying the board has no required reading. It is impossible to say which account is true.”
The court also punched holes in the extracts from Hansard. While the extracts were admissible under the Saskatchewan Evidence Act, they proved nothing, said Justice Gerein.
“That provision enables the extracts to be filed to prove what was said, but not as proof that the remarks were true,” the court said. “They are two entirely different things.”
The court’s decision
Wal-Mart alleged there was interference with the board and that members were required to read publications which were highly disparaging of Wal-Mart. But there was absolutely no evidence before the court to prove the allegation, said Justice Gerein.
While the newsletters contained negative comments about Wal-Mart, there was no admissible evidence to prove the newsletters were provided to the board or, much more importantly, that any member actually read them, the court said.
“In the same vein, Mr. Matkowski has not come forward to assert his allegations under oath,” said Justice Gerein. “Without such evidence it is impossible to conclude that bias exists within the Saskatchewan Labour Relations Board or that there is justification for a reasonable apprehension of bias. To conclude otherwise, this court would be acting on pure conjecture or fantasy. That is not good enough.”
The application was dismissed.
For more information see:
• Wal-Mart Canada Corp. v. Saskatchewan (Labour Relations Board), 2006 CarswellSask 453 (Sask. Q.B.)
Text of the affidavit filed by Wal-Mart
Below is the partial text of the affidavit filed by Terry Stanley, a Wal-Mart store manager in Moose Jaw, Sask.:
1. That I am the store manager at Wal-Mart Canada Corp. department store in Moose Jaw, Sask., and, as such, have personal knowledge of the facts and matters herein deposed to, except where stated to be on information and belief, and where so stated, I verily believe the same to be true.
2. Attached hereto and marked as exhibits to this affidavit are:
•a copy of the profile of Deb Higgins, former Minister of Labour for the Government of Saskatchewan from the Government of Saskatchewan website;
•a copy of the profile of Deb Higgins, former Minister of Labour for the Government of Saskatchewan from the caucus website;
•a copy of a membership and contact list from the Saskatchewan Federation of Labour website;
•14 issues of the Saskatchewan Federation of Labour’s newsletter;
•a copy of an application to the Saskatchewan Labour Relations Board dated July 20, 2004 from the UFCW;
•a copy of a decision from the Saskatchewan Labour Relations Board dated Jan. 20, 2005.
•two articles from the Regina Leader-Post newspaper;
•an article from the Saskatoon Star-Phoenix;
3. I make this affidavit in support of an application for an order prohibiting the Saskatchewan Labour Relations Board as presently constituted from hearing and/or determining any matter and/or making any orders involving Wal-Mart Canada Corp. or until further order of this Honourable Court.
