Executive Summary: Key Legal and Evidentiary Issues

• Two employees of Heritage Inn Saskatoon filed concurrent applications in November 2023 to cancel the certification order of United Food and Commercial Workers, Local 1400, which the Saskatchewan Labour Relations Board dismissed on the basis of employer influence under s. 6-106 of The Saskatchewan Employment Act.
   
• Judicial review of that dismissal was sought by the employer, 610539 Saskatchewan Ltd., raising issues of standing, evidentiary rulings, the Board's consideration of a prior decision, and the reasonableness of the employer-influence finding.
   
• Standing was contested by the union, which argued that decertification is a matter between employees and the union — not the employer — but the court granted standing to the employer because the Board had permitted it to participate fully at the hearing.
   
• Alleged breaches of natural justice relating to unresolved evidentiary rulings were rejected, as the employer failed to identify specific items of evidence or direct the court to the relevant portions of the approximately one-thousand-page transcript.
   
• Central to the employer-influence analysis were three instances of employer conduct: offering continued employment under different terms during the lockout, expelling the union president from the workplace on September 5, 2023, and failing to provide new employees with a copy of the collective bargaining agreement or notify the union of their hiring.
   
• Applying the reasonableness standard from Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65, the court found the Board's decision to be internally consistent, justified, and supported by the factual and legal constraints — and dismissed the employer's application.

Facts of the case

610539 Saskatchewan Ltd., operating as Heritage Inn Saskatoon, is the employer of a group of workers represented by United Food and Commercial Workers, Local 1400 ("the union") by virtue of a certification order issued in 2002. The most recent collective bargaining agreement expired in 2019; bargaining for a new agreement began that year but was interrupted by the COVID-19 pandemic and recommenced in early 2023.

On September 5, 2023, the employer gave the union notice of a lockout to commence September 7, 2023, and simultaneously offered all employees continued employment under different terms and conditions until a new collective bargaining agreement was signed. That same day, Lucy Figueiredo, the president of the union, attended the workplace to meet with employees. The employer asked her to leave and threatened to call the police if she did not; she complied. The union then gave notice that a representative would attend the following day, but the employer refused to permit that attendance. On September 7, 2023, the employer locked out the union and the union commenced a picket line.

On November 15, 2023, Lester John Villahermosa and Shaheena Kousar, employees of the employer, filed concurrent applications with the Saskatchewan Labour Relations Board to cancel the certification order, stating that a majority of employees no longer supported being unionized ("the decertification applications"). Pursuant to The Saskatchewan Employment Act, SS 2013, c S-15.1, the Board directed a secret ballot vote among the employees in late 2023; the ballots were received and held unopened by the Board. The Board conducted its hearing of the decertification applications from July to October 2024. In its February 21, 2025 decision (Kousar v UFCW, Local 1400, 2025 SKLRB 6), the Board concluded that the applications of Mr. Villahermosa and Ms. Kousar were made in part as a result of employer influence, and dismissed them under s. 6-106 of the Act.

Statutory provisions at issue

Section 6-106 of The Saskatchewan Employment Act provides the Board with discretionary power to reject or dismiss any employee application if satisfied that it was made in whole or in part on the advice of, or as a result of the influence, interference, or intimidation of, the employer or the employer's agent. The Board applied the five-factor framework set out in Wentworth v Teamsters Canada Rail Conference, 2019 CanLII 83972, 37 CLRBR (3d) 202 (SKLRB), which directs the Board to assess: (a) the plausibility of the applicant's motives; (b) the relationship between the applicant and management or special treatment; (c) the provision of information or resources by the employer; (d) employer words or conduct suggesting decertification would benefit employees; and (e) demonstrated conduct by the employer that has hindered bargaining and damaged the union's reputation.

Reasoning and analysis

The employer sought judicial review in the King's Bench for Saskatchewan, raising five issues: the applicable standard of review, the employer's standing, alleged failures to rule on evidentiary matters, the Board's consideration of its own prior decision, and the reasonableness of the employer-influence finding. Currie J. determined that the standard of review is reasonableness, except on questions of natural justice where the standard is correctness.

On standing, the union argued that decertification is a matter between employees and the union, from which the employer must remain neutral, relying on McCall v Nova Scotia Labour Relations Board, 2002 NSSC 33. Currie J. acknowledged this principle but found that the circumstances here were distinguishable: the Board had named the employer as a respondent and permitted it to participate fully at the hearing — questioning witnesses, adducing documents, and presenting closing argument. It would not be logical or fair, in those circumstances, to deny the employer the right to seek judicial review of the resulting decision.

On the evidentiary rulings, the employer alleged the Board had admitted certain evidence provisionally, saying it would address objections in writing in its final decision, but had not done so. Currie J. rejected this ground because the employer failed to identify any particular items of evidence or direct the court to specific portions of the roughly one-thousand-page hearing transcript, leaving the court without a basis on which to conclude that natural justice had been breached.

On the Board's reference to its February 28, 2024 decision (United Food and Commercial Workers, Local 1400 v 610539 Saskatchewan Limited (operating as Heritage Inn Saskatoon), 2024 CanLII 14520, 139 CLRBR (3d) 27 (SKLRB)) — in which the Board had found the employer committed an unfair labour practice in connection with bargaining — the court found no error. The Board had expressly declined to rely on that prior decision as a basis for dismissal because it was not final (it was itself under judicial review). As to evidence from that other proceeding that the Board did review, the Board ultimately did not rule against the employer on the basis of that evidence, rendering any propriety question moot.

On the substance of the employer-influence finding, the Board's conclusion rested on three instances of the employer's conduct under the fifth Wentworth factor. First, the employer's offer of continued employment under individual terms on September 5, 2023 — made the same day lockout notice was given — was found by the Board to have undermined the union by negotiating directly with employees at a critical juncture. Second, the employer's expulsion of union president Figueiredo from the workplace on that date, and subsequent refusal to allow any union representative to attend even with notice, further undermined the union at a particularly important time. Third, the employer's failure to provide Mr. Villahermosa with a copy of the collective bargaining agreement upon hiring, and its failure to provide his contact information to the union, contributed to his lack of any contact with the union and, in the Board's inference, to his conclusion that union membership was not worth his union fees.

The employer argued it was legally entitled to make the employment offer and to exclude the union representative. Currie J. confirmed that the question under s. 6-106 is not determined by legality or compliance with the collective agreement — it is determined by how the employer's conduct, whether lawful or not, affected the employees' exercise of their rights. The court found it was reasonable and appropriate for the Board to consider each of these three elements in assessing employer influence.

Ruling and outcome

Currie J. found the Board's February 21, 2025 decision to be reasonable — internally consistent and justified in relation to the relevant factual and legal constraints — and dismissed the employer's application for an order quashing that decision. The employer's judicial review application was therefore unsuccessful. As the successful party, United Food and Commercial Workers, Local 1400 was awarded costs against the employer under Column 2 of the applicable costs scale, though no specific dollar amount was stated.