Executive Summary: Key Legal and Evidentiary Issues

• Central issue was whether an arbitrator’s ruling on his own jurisdiction under three collective agreements should be characterized as “final” or “preliminary” for review purposes.

• The Alberta Labour Relations Board treated the arbitrator’s jurisdiction ruling as preliminary and dismissed the union’s review application as premature, relying on its discretionary authority under s 145(2) of the Labour Relations Code and case law including Alberta Health Services and Syncrude.

• In seeking permission to appeal under s 145.1(1) of the Labour Relations Code, the union alleged the Board presumed the decision was preliminary, but the Court found the Board had conducted an analysis and applied principles from Syncrude.

• The Court held the union had not identified any specific legal test or binding authority that the Board failed to apply or misapplied, and therefore had not shown any legal error.

• The Court rejected the union’s arguments that the Board’s approach would force parties to duplicate proceedings, noting the Board expressly recognized a discretion to review preliminary decisions in rare and exceptional circumstances.

• Permission to appeal was dismissed; the arbitration on the merits remains scheduled for October 2026, and the Court observed that an appeal would cause further delay and might result in the loss of those hearing dates.

Facts of the case

The dispute arose between United Food and Commercial Workers Canada Union, Local No. 401 and Sobeys Capital Incorporated under three collective agreements. The respondent Sobeys brought three grievances against the applicant union, alleging that the union had breached contractual obligations under those collective agreements. The alleged breach related to the union’s broadcasting of advertisements which, among other things, were said to have defamed Sobeys.

The arbitrator’s jurisdiction was contested as a preliminary issue. The applicant union challenged the arbitrator’s jurisdiction to hear the grievances, and the parties placed that jurisdictional question before the arbitrator. The arbitrator found that the alleged defamatory conduct occurred during wage renegotiations mandated by the collective agreement. On this basis, he determined that he had exclusive jurisdiction to hear the grievances. A hearing on the merits of the grievances was scheduled for October 2026.

Proceedings before the Alberta Labour Relations Board

The union sought Board review of the arbitrator’s jurisdiction ruling under s 145(2) of the Labour Relations Code. The applicant argued to the Alberta Labour Relations Board that the arbitrator’s decision on jurisdiction was “final” and therefore suitable for immediate review. The respondent Sobeys, in turn, applied for summary dismissal of the review application on the basis that it was premature.

The Board treated the jurisdiction ruling as preliminary and dismissed the review as premature. Referring to Alberta Health Services for review of an arbitration v United Nurses of Alberta, the Board described its power to hear reviews under s 145(2) as discretionary and stated that it will not consider review applications of preliminary decisions by arbitrators, except in exceptional circumstances. The Board then determined that the arbitrator’s decision on jurisdiction was preliminary, rather than final, and dismissed the union’s review application without prejudice to its ability to seek review of the jurisdictional question after the merits had been determined.

In characterizing the decision as preliminary, the Board relied on Syncrude. The Board drew on Syncrude Canada Ltd v Alberta (Human Rights and Citizenship Commission), where a human rights panel’s order confirming that Syncrude was an “employer” and subject to the panel’s jurisdiction was treated as interim or interlocutory because the merits of the complaint still had to be decided. Using that reasoning, the Board concluded that the arbitrator’s jurisdiction ruling in this case was preliminary, since the merits of the grievances remained to be determined.

Statutory framework and test for permission to appeal

The union then applied to the Alberta Court of Appeal for permission to appeal under s 145.1(1) of the Labour Relations Code. Section 145.1 permits appeals, with permission, from decisions of the Board, but only on a question of law or jurisdiction. The Court emphasized that merely identifying a question of law or jurisdiction is usually insufficient; there must be a reason for the Court to hear the appeal.

The Court applied established criteria for granting permission to appeal. Drawing on Association of Academic Staff of the University of Alberta v University of Alberta and Edmonton (City) v Amalgamated Transit Union, Local No. 569, the Court noted the relevant factors: whether the point on appeal is significant to the practice, whether it is significant to the particular action, whether the appeal appears prima facie meritorious, and whether the appeal would unduly hinder the underlying action. The Court also stated that, to give effect to the legislative policy limiting second appeals, it requires a robust analysis of whether the proposed questions are indeed questions of law.

The Court restated the distinction between questions of law, fact, and mixed fact and law. Relying on Canada (Director of Investigation and Research) v Southam Inc., and other authorities, the Court explained that questions of law concern the correct legal test, questions of fact concern what actually occurred, and questions of mixed law and fact concern whether the established facts satisfy the legal test. This framework guided the Court’s assessment of whether the union had identified a genuine question of law or jurisdiction.

Arguments advanced in the permission application

The union framed its proposed question of law around the characterization of the arbitrator’s ruling. In its Memorandum of Argument, the applicant stated the question as whether the Board erred in determining whether a decision on an arbitrator’s jurisdiction is final or preliminary. The applicant contended that the Board had not correctly stated or applied the law on whether a decision on an arbitrator’s jurisdiction is final, and instead presumed that such a ruling was preliminary without analysis.

The Court found that the Board did conduct an analysis and applied Syncrude. The Court noted that this contention was not borne out in the Board’s Decision. Rather, the Board considered case law supplied by the parties and determined that the arbitrator’s jurisdiction ruling was preliminary by applying analogous principles from Syncrude to the facts before it. The Court observed that there was no suggestion that the Board misinterpreted those principles.

The Court concluded that no specific legal error had been identified. The applicant did not point to any particular legal test or binding authority that the Board failed to apply or misapplied. In the Court’s view, the applicant had not identified a legal error. The absence of any demonstrated legal error was dispositive of the permission application.

Assessment of the leave criteria and practical implications

The Court held that the criteria for granting permission to appeal were not met. Referring back to the factors in University of Alberta and Amalgamated Transit, the Court found that, because the applicant had not shown any specific legal test that was misapplied or omitted, there was no prima facie merit to the proposed appeal. The Court accepted that the arbitrator’s decision on the jurisdictional question was significant to the grievances because it affected forum and remedy. However, the Court stated that it was unclear how the jurisdictional ruling affected the substance of the dispute between the parties.

The Court rejected the union’s efficiency and duplication arguments. The applicant argued that if the Board’s Decision stood, parties would, in all cases where jurisdiction is in issue, have to proceed to a hearing on the merits in one venue and then potentially re-litigate in another venue if the arbitrator was later found to have erred on jurisdiction. The applicant said this would lead to inefficiency and duplicative processes. The Court found these arguments unconvincing, noting that the Board’s decision did not entirely preclude parties from applying for review of jurisdictional questions before the merits are heard. The Court pointed out that the Board expressly referred to its discretion to review interim or preliminary orders in rare and exceptional circumstances.

The Court also emphasized the risk of delay to the scheduled arbitration. The arbitration on the merits had been scheduled for October 2026. The Court observed that an appeal to the Court of Appeal would lead to further delay in reaching the merits of the grievances. It noted that the October 2026 arbitration dates might be lost pending the outcome of what the Court described as a weak appeal.

Ruling and overall outcome

The Court dismissed the application for permission to appeal. The Court concluded that the applicant had not identified a legal error in the Board’s treatment of the arbitrator’s jurisdictional ruling as preliminary. It held that the proposed appeal did not meet the statutory requirement of raising a question of law or jurisdiction that warranted appellate intervention and that the leave criteria, including prima facie merit and the potential to hinder the underlying proceedings, weighed against granting permission.

As a result, the Board’s Decision and the arbitrator’s jurisdictional ruling remain undisturbed, and the matter proceeds toward the scheduled arbitration. The application for permission to appeal was dismissed, leaving the respondents, Sobeys Capital Incorporated and the Alberta Labour Relations Board, successful in resisting the application. The decision does not set out any monetary award or amount, so no exact figure can be determined from this judgment.