Executive Summary: Key Legal and Evidentiary Issues

• Whether the Alberta Labour Relations Board could refuse to even accept or hear an application for secondary picketing before a strike notice was served or a strike had begun
• Whether the Board’s interpretation of sections 84 and 84.1 of the Labour Relations Code unduly restricted the Union’s ability to obtain advance approval for secondary picketing in the collective bargaining context
• Whether the two Board decisions on secondary picketing should be judicially reviewed despite the underlying labour dispute having been resolved and the matter becoming moot
• How the Borowski v Canada (Attorney General) framework on mootness applies, particularly the need for a live adversarial context where the employer has withdrawn from participation
• The extent to which judicial economy and the likelihood of recurring disputes justify hearing a moot judicial review in labour relations settings
• Whether, in the absence of a live dispute and a true adversary, the Court would be improperly stepping into a quasi-legislative role by pronouncing on the interpretation of the Labour Relations Code and Charter balancing in the abstract

Background and facts of the dispute

United Food and Commercial Workers Canada Union, Local No. 401, and Sobey’s Capital Inc. were engaged in collective bargaining in Alberta. The Union’s members voted in favour of a strike in October 2022, signalling that job action was a real possibility if a new collective agreement could not be negotiated. In anticipation of potential picketing activities, the Union sought advance permission for secondary picketing—picketing at locations other than the primary employer’s site—under the Labour Relations Code. In November 2022, the Union submitted an application under section 84.1 of the Labour Relations Code, asking the Alberta Labour Relations Board for authorization to engage in secondary picketing at specified locations if and when a strike occurred. The dispute over timing and admissibility of that application ultimately set the stage for the judicial review.

The Alberta Labour Relations Board decisions on secondary picketing

When the Union’s first application for secondary picketing was filed, the Board’s administration refused to accept it. The Board’s position was that certain preconditions had not yet been met: specifically, a formal Notice to Strike had not been served, and the strike itself had not commenced. In the Board’s view, both elements were essential to trigger its discretion to authorize secondary picketing under the Code. The Union challenged this refusal before the Board, arguing it should be able to seek advance authorization before any picket lines were formed. The Board, however, upheld the refusal, maintaining that without a Notice to Strike and an active strike, it lacked the statutory foundation to entertain the application. The Union then commenced a first judicial review of that decision. On January 10, 2023, the Union served a Strike Notice and simultaneously filed a new application for secondary picketing. The Board advised that it would hear this second application, but not until after the strike had actually begun. The Union took the position that the legislation allowed for secondary picketing to be approved in advance of a strike commencing and that the Board’s approach improperly constrained its rights. This led to a second judicial review application challenging the Board’s refusal to hear the matter before the strike started.

Procedural history and the impact of settlement on mootness

The two judicial reviews were ultimately consolidated into a single proceeding before the Court of King’s Bench of Alberta. Before any strike actually occurred, however, the Union and Sobey’s resolved their collective bargaining dispute and concluded a new collective agreement, meaning there was no strike and no picket lines. Because the underlying labour dispute had been resolved, the Union’s challenges to the Board’s decisions were no longer tied to a live controversy. The employer, Sobey’s, then removed itself from the court proceedings entirely. Given that the Union had served Constitutional Notice and was raising Charter-related arguments around secondary picketing and expressive activity, the Attorney General of Alberta was added and indicated it would participate on the issue of mootness only. The Board was also added as a party but stated that its role was largely limited to providing the record and explanations of the Code, rather than taking an active adversarial stance. This constellation of parties and the absence of the employer as a live opponent formed the foundation of the mootness dispute.

The Borowski test and the requirement for an adversarial context

Justice Millsap applied the Supreme Court of Canada’s framework from Borowski v Canada (Attorney General) to determine whether the Court should nonetheless hear the judicial review on the merits in spite of mootness. The first step—whether there remained a live dispute—was conceded: the strike had been averted, a new collective agreement entered into, and the immediate controversy over secondary picketing no longer affected the parties’ conduct. The second step required deciding whether this was an appropriate case in which to exercise discretion to hear a moot matter. The first Borowski factor addresses the presence of an adversarial context. The Union argued that there was still sufficient adversarial engagement, pointing to the Attorney General’s submissions and the record of the Board proceedings, including the employer’s earlier arguments. The Attorney General, however, emphasized that the actual employer had withdrawn, leaving no true respondent with a direct stake opposing the Union’s requested relief. Drawing on the Alberta Court of Appeal’s guidance in Wiebe v Alberta Labour Relations Board et al, Justice Millsap stressed that hearing moot appeals or judicial reviews is the exception rather than the rule, and that the dangers of proceeding without a genuine adversary—such as incomplete argument and one-sided precedent—remain significant even if somewhat mitigated by the existing record and limited participation by the Attorney General and the Board. The Court concluded that the lack of a fully engaged opposing party was a serious concern weighing against exercising discretion to hear the moot case.

Judicial economy and recurring labour disputes

The second Borowski factor is judicial economy. The Union argued that labour disputes over picketing and strike-related issues often resolve quickly or settle before reaching court, meaning that if courts do not hear such matters when technically moot, important questions about the scope of secondary picketing may never be definitively resolved. The Court accepted that the parties remained in a long-term bargaining relationship, with their collective agreement set to expire in 2028, and that similar issues could indeed recur between them in a future round of bargaining. It noted that repeated appearances before the courts over the same secondary picketing questions would not serve judicial economy. However, the Attorney General underscored that the analysis of judicial economy also asks whether a judgment would have a real practical effect on both sides, not just on the Union. The employer’s decision not to participate, even in the face of an application that might result in the Board’s precedential decisions being set aside, suggested that any practical effect on the employer was either minimal or not sufficiently concrete. The Court also observed that the Union’s real aim was to overturn precedents that favoured the employer and to obtain a new, more favourable precedent clarifying secondary picketing and Charter balancing. Relying on authority such as Bonsma v Alberta (Information and Privacy Commissioner), Justice Millsap noted that a desire to establish precedent—even for the same parties—is not, on its own, a special circumstance that justifies hearing a moot case. On balance, the Court found that this factor did not support exercising discretion to proceed.

The Court’s law-making role and the risk of quasi-legislation

The third Borowski factor focuses on the Court’s proper law-making role and the need to avoid stepping into the domain of the legislature. The Union sought a ruling that the Board had failed to properly balance Charter rights when considering secondary picketing applications under sections 84 and 84.1 of the Labour Relations Code. While such an inquiry is plainly within the courts’ judicial function when a real dispute exists, Justice Millsap underscored the danger of courts acting as de facto legislators when they interpret and pronounce on statutes in the absence of an actual, adversarial dispute affecting the parties’ rights. Without a live controversy and with the employer absent, the issue before the Court would become more abstract, and any ruling on the interpretation of the Code and Charter balancing would look more like a general policy directive than a concrete adjudication between opposing sides. This concern could be alleviated where both sides remained engaged in genuine litigation over ongoing rights and obligations. Here, however, with the labour conflict resolved and the opposing party withdrawn, the risk of the Court drifting into quasi-legislation was heightened. This factor strongly disfavoured proceeding to the merits.

Outcome, successful party, and monetary relief

After weighing all three Borowski factors, the Court concluded that it should not exercise its discretion to hear the moot judicial review. Despite expressing a “strong desire” to reach the merits, Justice Millsap held that the absence of a genuine adversarial context, together with concerns about judicial economy and the Court’s proper institutional role, required that the application be dismissed. As a result, the Union’s consolidated application for judicial review was dismissed, and the Board’s original decisions regarding the timing and admissibility of secondary picketing applications remained intact. In this decision, the successful parties are the respondents aligned with maintaining the Board’s rulings: functionally, the Alberta Labour Relations Board and, on the mootness issue, the Attorney General of Alberta (with Sobey’s underlying position effectively preserved despite its non-participation). The memorandum of decision does not set out any specific award of damages, costs, or other monetary relief, and no total monetary amount in favour of any party can be determined from the text of this judgment.