Executive Summary: Key Legal and Evidentiary Issues

• Sobeys filed three grievances alleging the Union breached three collective agreements by broadcasting advertisements that defamed the respondent

• The arbitrator determined he had exclusive jurisdiction over the grievances since the alleged defamatory conduct occurred during wage renegotiations mandated by the collective agreement

• The Union applied to the Board to review the arbitrator's decision on jurisdiction, arguing it was a "final" decision

• The Board dismissed the review application as premature, characterizing the arbitrator's jurisdictional decision as preliminary rather than final

• Relying on reasoning from the Syncrude case, the Board found the decision was interlocutory in the sense that the merits of the grievances remained to be determined

• The Union failed to identify any specific legal test or binding authority the Board either failed to apply or misapplied

Background of the dispute

The United Food and Commercial Workers Canada Union, Local No. 401 and Sobeys Capital Incorporated are parties to three collective agreements. The Union broadcast advertisements which, among other things, Sobeys alleged were defamatory. Sobeys filed three grievances against the Union, alleging the Union breached contractual obligations under the three collective agreements. The Union contested the arbitrator's jurisdiction to hear the grievances, and the parties put that issue before him. The arbitrator found the Union's alleged defamatory conduct happened during wage renegotiations that were mandated by the collective agreement. As a result, the arbitrator determined he had exclusive jurisdiction to hear the grievances. A hearing on the merits is set for October 2026.

The Union's application for Board review

The Union applied to the Board to review the arbitrator's decision on jurisdiction pursuant to section 145(2) of the Labour Relations Code, arguing the arbitrator's decision on jurisdiction was "final." Sobeys applied for summary dismissal of the review based on prematurity. Citing Alberta Health Services for review of an arbitration v United Nurses of Alberta, the Board noted its power to hear reviews under section 145(2) as discretionary and that it will not consider review applications of preliminary decisions by arbitrators, except in exceptional circumstances. The Board determined the arbitrator's decision on jurisdiction was preliminary, rather than final, based on the reasoning in Syncrude Canada Ltd v Alberta (Human Rights and Citizenship Commission). The Board dismissed the application without prejudice to the Union's ability to seek review of the jurisdictional question following determination of the merits.

The application for permission to appeal

The Union sought permission to appeal the Board's decision to the Court of Appeal of Alberta under section 145.1(1) of the Labour Relations Code, which permits Board decisions to be appealed, with permission, on a question of law or jurisdiction only. In its Memorandum of Argument, the Union framed the proposed question of law as: Did the Board err in its determination of whether a decision on an arbitrator's jurisdiction is final or preliminary? The Union argued the Board presumed the arbitrator's ruling was preliminary without conducting an analysis.

The Court's analysis

Justice Shaner found this was not borne out in the Decision. The Board did conduct an analysis of whether the arbitrator's decision on jurisdiction should be characterized as preliminary or final after considering case law submitted by the parties. The Board decided the arbitrator's decision was preliminary by applying analogous principles set out in Syncrude to the factual matrix before it. There is no suggestion the Board misinterpreted those principles. The Court emphasized that identifying a question of law or jurisdiction is typically insufficient to be granted permission to appeal. There must be a reason for the Court to hear the appeal. The factors that inform this are: whether the point on appeal is significant to the practice; whether the point raised is significant to the action itself; whether the appeal is prima facie meritorious; and whether the appeal would unduly hinder the underlying action.

Reasons for dismissal

The Court found the Union had not identified any specific legal test or binding authority the Board either failed to apply or misapplied. In short, the Union had not identified a legal error, which the Court found dispositive of the application. Given this, the Court determined it cannot be said there is prima facie merit to the proposed appeal. While the arbitrator's decision on the jurisdictional question is significant to the grievance in that it affects forum and remedy, it is unclear how it affects the substance of the dispute between the parties. The Union argued the appeal would provide clarity to employers, unions, and arbitrators, and that allowing the Decision to stand would force parties to litigate in one venue on the merits and then re-litigate in a different venue if an arbitrator is found to have erred in deciding jurisdiction, leading to inefficiency and duplicative processes. The Court found these arguments not convincing. The Board's decision does not foreclose entirely on the possibility of parties being able to apply for review of jurisdictional questions prior to the merits being heard, as the Board referred expressly to its discretion to review interim or preliminary orders in rare and exceptional circumstances. Finally, an appeal would result in further delay in getting to the merits of the grievances, with the October 2026 arbitration dates potentially lost pending the outcome of what the Court characterized as a weak appeal. The application for permission to appeal was dismissed. No specific monetary amount was determined in this procedural ruling, as the underlying grievance matter remains to be heard on its merits.