SASKATOON CO-OPERATIVE ASSOCIATION LIMITED, Applicant v UNITED FOOD AND  
COMMERCIAL WORKERS, LOCAL 1400, Respondent and CRAIG THEBAUD, Respondent  
LRB File No. 230-18; August 15, 2022  
Vice-Chairperson, Barbara Mysko; Board Members: Maurice Werezak and Laura Sommervill  
Counsel for the Applicant, Saskatoon Co-operative  
Association Limited:  
Kevin C. Wilson, Q.C. and  
Shane Buchanan  
Counsel for the Respondent, United Food and  
Commercial Workers, Local 1400:  
Crystal L. Norbeck, Q.C. and  
Samuel Schonhoffer  
The Respondent, Craig Thebaud:  
Self-Represented  
Unfair Labour Practice Application Sections 6-7, 6-63(1)(c), 6-41, and 6-  
63(1)(h) of The Saskatchewan Employment Act Allegation that  
Respondents engaged in Bad Faith Bargaining and Violated Duties under  
Collective Agreement.  
Conduct Away from the Bargaining Table Strike Third Party Actors –  
Petition to Call Special Meeting Objective to Remove and Replace Board of  
Directors – Seeking to Change Employer’s Bargaining Position – Election of  
Board of Directors at AGM – Endorsing Candidates Supporting Union’s  
Bargaining Position.  
No Mirror Duty of Internal Interference In Collective Bargaining Union and  
Employer Separate Legal Entities Duty to Bargain in Good Faith Course  
of Conduct Designed to Replace Directors Circumventing Collective  
Bargaining Process.  
Breach of Sections 6-7 and 6-63(1)(c) No breach of Sections 6-41 or 6-  
63(1)(h) Argued Duties and Prohibitions Not Applicable Requisite  
Intention Not Established.  
REASONS FOR DECISION  
Background:  
[1] Barbara Mysko, Vice-Chairperson: On November 8, 2018, the Employer, Saskatoon  
Co-operative Association Limited, filed an unfair labour practice application against the Union,  
United Food and Commercial Workers, Local 1400 and an individual, Craig Thebaud.  
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[2]  
Saskatoon Co-op is a co-operative that is organized and operated pursuant to The Co-  
operatives Act, 1996, c C-37.3 [The Co-op Act]. A Board of Directors exercises the powers of the  
co-operative through the employees and agents of the co-operative and directs the management  
of the business and affairs of the co-operative, pursuant to section 72 of The Co-op Act.  
[3]  
Saskatoon Co-op runs a retail business at multiple locations in and around Saskatoon,  
Saskatchewan. The Union is certified to represent an all-employee bargaining unit of the  
employees of the Employer.  
[4]  
Mr. Thebaud is a former employee of both the Employer and the Union. He is also a vocal  
critic of the Saskatoon Co-op management and an activist.  
[5]  
The dispute relates to the renewal negotiations for the collective agreement which had  
expired on November 19, 2016. Renewal bargaining began in 2017. In or around August 2017,  
the Union declared an impasse and the matter came before this Board. On January 8, 2018, the  
Board decided that the Union’s declaration of an impasse was an unfair labour practice and  
ordered the Union to return to the bargaining table: Saskatoon Co-operative Association Limited  
v United Food and Commercial Workers, Local 1400, 2018 1733 (SK LRB). Overall,  
bargaining was prolonged. By the end of October 2018, an agreement had still not been reached.  
[6]  
Central to the renewal negotiations, and to the parties’ disagreement, was the two-tier  
wage schedule proposed by the Employer, which would adversely affect the wages of new  
employees.  
[7]  
The Union served the Employer with strike notice on October 29, 2018. On November 1,  
2018, the Union and its members went out on a strike that lasted over five months. In April 2019,  
the parties concluded a renewal agreement that included a two-tier wage schedule with a bridge,  
presumably to benefit those employees subject to the lower wages. The renewed agreement  
disclosed a softening of the parties’ respective positions with respect to the second tier over time.  
[8]  
During the labour dispute, there was significant opposition to the two-tier wage schedule  
and other management tactics. A movement was formed with the goals of overturning the Board  
of Directors and redefining the corporate policy. The movement focused, first, on forcing a special  
meeting to overturn the Board of Directors and then on electing progressive candidates at the  
annual general meeting [AGM], which was held in June 2019. Just prior to the AGM, on June 11,  
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2019, the Employer filed an amended application including particulars about events which had  
ostensibly taken place in the months since November 2018.  
[9]  
It may provide clarity to these Reasons to point out that there are two sets of “members”  
engaged in this application: the members of the Union [Union members] who are employees of  
the Employer, Saskatoon Co-op, and the members of Saskatoon Co-op [Co-op members].  
[10] The Co-op Act provides the Co-op members with certain rights, including the right to notice  
of annual and special meetings, the right to vote at meeting, and the right to remove any director  
from office by a resolution and vote. Section 104 also provides that directors shall call a special  
meeting on receipt of a written request from a minimum number or percentage of the membership.  
[11] In this application, the Employer says that the respondents cooperated to organize a  
petition of Saskatoon Co-op members to call for a special meeting and remove and replace the  
Board of Directors of Saskatoon Co-op. The express stated goal of the petition was to change the  
Employer’s bargaining position with respect to the two-tier wage schedule. The respondents’  
attempts to manipulate the election were an attempt to undermine the Employer’s governance  
structure and interfere with collective bargaining. The Employer alleges that the respondents’  
actions amount to bad faith bargaining and contravene sections 6-7, 6-63(1)(c), 6-41, and 6-  
63(1)(h) of The Saskatchewan Employment Act [Act].  
[12] In its Reply, the Union says that Mr. Thebaud’s employment relationship with the Union  
ended in or around 2016, and that Mr. Thebaud was, and is, in no way acting as an agent of the  
Union. After that relationship ended, the Union had no further relationship with Mr. Thebaud. The  
Union denies that it organized or sanctioned the Petition. While it referenced the Petition on its  
website, it did not expressly support, promote, or otherwise endorse the Petition.  
[13] In his reply, Mr. Thebaud says that members of Saskatoon Co-op have complete control  
of the governance of the Co-op, and are the exclusive, equal shareholders. Members govern the  
Co-op by passing resolutions at general meetings and choosing a Board of Directors. He admits  
that he organized a petition to call for a special meeting for the purpose of removing the current  
Board of Directors. He denies, however, that the petition contained an “express stated goal…to  
change the Saskatoon Co-op’s bargaining position”. He asserts that he has held no affiliation with  
the Union since leaving its employment in January 2017.  
[14] The main issues for determination are whether the respondents have contravened  
sections 6-7, 6-63(1)(c), 6-41, or 6-63(1)(h) of the Act.  
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Evidence:  
[15] The evidence included testimony from three witnesses for the Employer: Daniel Burke,  
Lawrence Hartwig, and George Janson; and two witnesses for the Union: Norm Neault and Lucia  
Flack Figueiredo. Mr. Thebault testified on his own behalf.  
[16] During the labour dispute, Mr. Burke was the Controller for the Employer and, as of  
February 1, 2019, was the Director of Finance. Mr. Hartwig and Mr. Janson were employed by a  
private security firm that was providing security for the Employer during the labour dispute.  
[17] Mr. Neault was the President and Ms. Figueiredo was the Secretary-Treasurer of the  
Union. Ms. Figueiredo has since been elected President. Mr. Thebaud worked for the Employer  
from 2003 until 2010. He was on the executive of the Union from 2008 to 2010. He also worked  
for the Union on and off from 2009 until January 2017.  
[18] The Board of Directors consists of nine directors, three of whom are elected on three-year  
staggered terms. Mr. Burke explained that the Board of Directors has significant influence over  
the CEO. Directors are elected at an AGM or by way of a special meeting called by the  
membership pursuant to The Co-op Act.  
[19] Mr. Neault has been a Co-op member for at least 40 years. He would guess that  
employees of the Co-op were also members, given the loyalty program and discount associated  
with membership.  
[20] The Union has, for as long as Mr. Neault has been around, discussed candidates for the  
Board of Directors, including at the stewards’ meetings held prior to the AGM. The Union has a  
history of supporting candidates, including in 2018, in 2019, and since then. As far as Mr. Neault  
is aware, the Co-op has not objected, other than to come to an understanding that neither the  
Union nor management would run candidates. Saskatoon Co-op employees have run for the  
Board of Directors in the past.  
[21] Mr. Thebaud is also a Co-op member. He did not leave his employment with the Union on  
good terms. There is no evidence that he had an ongoing relationship with Ms. Figuieredo or Mr.  
Neault after his departure.  
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[22] Mr. Thebaud did, however, have an ongoing interest in Saskatoon Co-op. As such, he had  
been following the news about bargaining and the labour dispute. He was concerned about the  
two-tier wage schedule and decided to do something about it. He did some research. He came  
across a court decision that he interpreted to mean that, although the Co-op members did not  
have direct power over the co-operative’s operations they did have power to remove the Board of  
Directors. To accomplish this goal, he designed a petition that was to be signed by Co-op  
members.  
[23] In designing the petition, Mr. Thebaud attempted to comply with section 104 of The Co-op  
Act, which requires the directors to call a special meeting of the members on receipt of a written  
request specifying the purpose of the meeting from a specified number of members or percentage  
of the membership. The preamble to the petition stated:  
Request to Call A Special Meeting Of The Saskatoon Co-operative Association Limited  
We the undersigned members of the Saskatoon Co-operative Association Limited formally  
request a special meeting of the Saskatoon Co-operative Association Limited as per  
Section 104 of The Co-operatives Act of Saskatchewan. For the purpose of:  
Removing the current board of directors from office through the following motion: “That all  
of the current directors be removed from their positions as directors for the Saskatoon Co-  
operative Association Limited.”; and  
Replacing all vacancies on the Board of Directors.  
[24] On October 30, 2018, Mr. Thebaud sent a text message to Mr. Neault describing his plan  
and stating,  
As I am very disappointed in my saskatoon coop board of directors, I want to remove them  
from office. I can do that [with] a motion that receives 2/3 at a general meeting. I was going  
to start a petition to have a special meeting (needs 300 signatures). I don’t however want  
to do something that’s going to F* up the picket line or whatever. Do you see an issue with  
that?  
[25] He testified that the Union had, in the past, not taken well to surprises, even if the surprises  
were to their benefit. He also explained that the Union did not trust him. He wanted to ensure that  
the Union wasn’t opposing the petition. Mr. Neault replied, “Non whatsoever. Thanks Craig.”  
[26] Mr. Thebaud called Mr. Neault shortly after to notify him that some people would be  
coming to the picket line to gather signatures. It was protocol to notify the Union in advance of  
showing up on the line.  
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[27] At 3:48 pm on November 2, Mr. Thebault sent the petition as an email attachment to Mr.  
Neault, explaining, “It was not leaving my outbox in outlook so I am trying to send it again.” About  
a half hour later, the Union shared to its Facebook page a post by Mr. Thebaud providing a link  
to the petition. Ms. Figueiredo was provided the petition by Mr. Neault. She placed it on the front  
counter at the Union office in Saskatoon. She thought it was a good idea.  
[28] Mr. Thebaud also formed a Facebook group called the Saskatoon Co-op Members for the  
Fair Treatment of Employees group [Petition Group]. The group explicitly sought to change the  
Employer’s bargaining position with respect to the two-tier wage schedule, and requested a  
special meeting be called for the purpose of removing and replacing the Board of Directors.  
Another petition was launched around the same time calling for a special meeting to discuss  
labour relations issues. The organizer was James Mills, the spouse of a Saskatoon Co-op staff  
member.  
[29] Many of the picketers were following the Petition Group on Facebook. Members of the  
Petition Group attended the picket line to obtain signatures. Jennifer Bowes was one of the  
administrators of the Petition Group and was assisting in gathering signatures for the petition. On  
Facebook, she was also directing potential signatories to the picket captains on the picket lines.  
The Petition Group informed its members that they could pick up signs to show their support for  
the Union.  
[30] Mr. Thebaud’s petition, containing the signatures of 474 persons, was submitted to the  
Board of Directors on November 16, 2018. Mr. Thebaud blind copied the Union on a press  
release. At a meeting of the Board of Directors held on November 26, 2018, the Board passed a  
resolution declining to call the requested special meeting. The Board suggested that the petition  
failed to meet key requirements governing requests for a special meeting.  
[31] On November 20, 2018, Mr. Thebaud gave an interview with the radio personality, John  
Gormley, about the petition. In the interview, Mr. Thebaud explained that he had initiated the  
petition to protect his equity interest in the Co-op and to ensure that the Co-op was “treating its  
workers with the kind of values that I expected the Co-op to treat their workers with.” He explained  
that he viewed the Co-op’s bargaining position as a betrayal.  
[32] The Board of Directors’ refusal to hold the special meeting was the subject of an  
application to the Court of Queen’s Bench, brought by Mr. Thebaud. Some of the picketers  
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attended the court proceedings. Ms. Figueiredo was aware and was okay with picketers being in  
attendance.  
[33] In Thebaud v Saskatoon Co-operative Association Limited Board of Directors, 2019 SKQB  
14 (), the Court dismissed Mr. Thebaud’s application. The Court concluded that Mr.  
Thebaud’s motives were to force his own objectives on the Board of Directors to the detriment of  
the members of Saskatoon Co-op. The Court reviewed the purpose of The Co-op Act and found  
at paragraph 18 that, “if the application to remove the Board of Directors and replace them is  
therefore motivated for the benefit of future employees rather than for its members, the application  
could be said to be for an improper motive.”  
[34] Throughout 2019, there was a series of Town Hall meetings held every few weeks,  
organized at first by Mr. Mills and then by Jason Hicks (the spouse of a later candidate for the  
election to the Co-op Board of Directors), and then attributed mainly to an organization called the  
Co-op Members for Fairness [Election Group]. Mr. Hicks was the spokesperson for the group. In  
an advertisement for the 2019 AGM, the group described itself as follows:  
We are Co-op members who:  
support Co-op’s workers who were on strike simply to preserve good conditions of  
employment at Co-op.  
oppose the board’s abdication of governance of Co-op to FCL. We insist that they  
intervene to end Co-op management’s assault on wages via the proposed “two-tier”  
wage structure, today and forever.  
support bringing true member democracy to Co-op, where members vote on policy,  
the board follows the policy, and management implements the policy.  
support resolutions and other initiatives to reverse the slide of Co-op into a corporate,  
rather than co-operative model.  
[35] The inaugural meeting was held on February 20, 2019 at the Rusty MacDonald Library in  
Saskatoon. Mr. Mills was the chair of the meeting. He had rented the facility to discuss his plan  
to inundate the AGM with resolutions.  
[36] In attendance at the meeting were four members of the Union’s negotiating committee. At  
least three of them spoke, mostly about bargaining and the strike. There was discussion about  
taking control of the Board of Directors. The bargaining committee members were involved in this  
discussion.  
[37] Mr. Thebaud testified that there were various community members present at the meeting  
with differing reasons for being disgruntled with the Employer. There was a desire to change the  
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composition of the Board of Directors but to do that, it would be necessary to overcome the  
challenge of the “management slate”.  
[38] Mr. Mills’ plan didn’t receive universal support, and the “hat was passed” to compensate  
him for the facility rental. At the end of the meeting, Mr. Mills observed that his meeting had been  
hijacked.  
[39] Also in February, windshield flyers supporting the labour dispute were distributed,  
displaying the Union logo and calling on Co-op members to attend the AGM to “[h]elp elect new  
Board members who are true believers in fairness, community values and hard-working families”,  
and calling on non-members to join for a $10 rebate on the initiation fee.  
[40] At the beginning of March, a second Facebook page was set up by the Election Group.  
Rob Butz was the lead for the page.  
[41] On March 7, a Town Hall meeting was held at the Food Bank. The meeting was presented  
as an evening to “discuss and amend presented resolutions, discuss strategy and hear a  
presentation from the [Petition Group] on their ongoing legal challenge”. Six overarching and two  
additional, targeted resolutions were approved. One of the resolutions, under the heading  
“Respect and Support for Workers”, stated:  
That the Saskatoon Co-op Membership directs the elected co-op board of directors to  
adopt the principles of respect, fairness, and equality in all its bargaining negotiations and  
resulting agreements removing the “two tier wages” from any current or future bargaining  
processes and contracts.  
[42] On March 20, a Town Hall meeting was held at Station 20 West, for the apparent purpose  
of discussing the upcoming elections, and to be specific, “our plans to locate candidates to run  
for the Co-op board who champion the resolutions we developed as a group at the last Town  
Hall.” Mr. Thebaud provided an update on his legal action. A subcommittee was formed to adapt  
the resolutions and present them at the AGM. Included on the subcommittee were Mr. Butz and  
Mr. Hicks, but not Mr. Thebaud.  
[43] Also in March and April, the Election Group promoted solidarity pickets with the striking  
workers and lawn signs in support of the strike.  
[44] On April 2, Ms. Figueiredo participated, along with Ashlee and Jason Hicks, on a CFCR  
radio show called Civically Speaking. Ms. Figueiredo was invited to speak about bargaining. Ms.  
Hicks was an employee of the Saskatoon Co-op. The topics of conversation included the  
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negotiations, the strike and pickets, the AGM, the Town Halls, and community support for the  
striking workers.  
[45] In and around April 16, the parties concluded the renewed collective agreement and ended  
the strike. On April 17, the Election Group posted an article about the end of the strike (including  
an image credit from the Union), stating:  
But one answer that is clear to us as Co-op Members for Fairness already is that there is  
an urgent need to replace the Board of Directors with fresh voices. The lower pay-scale for  
new Co-op staff should never have been introduced, and as far as we are concerned, Co-  
op management had no mandate to pressure valued workers (who serve us as members  
and customers) into concessions, via stonewalling their concerns and demands about a  
wage rollback for months.  
[46] On April 17, via Facebook, the Petition Group invited Co-op members to the upcoming  
Town Hall meeting to:  
VOTE for Board candidates who will commit to upholding Co-operative principles and  
eliminating the shameful second tier that new workers will now be subjected to[.]  
[47] On April 18, the Union hosted a BBQ for members and supporters, advertised by the  
Election Group as “a Thank-you BBQ for those who showed support during their recent strike and  
a rally to thank all who walked the picket line”. The BBQ took place prior to the Town Hall on April  
18 at Station 20 West.  
[48] On May 13, the group hosted another Town Hall meeting for a vote to determine who  
would be endorsed as candidates for election at the upcoming AGM. Further to that meeting, the  
group endorsed Dan Danielson, Erika Ritchie and Ms. Hicks, with two alternate candidates, being  
Carroll Chubb and Vanessa Amy. On a later date, Mr. Danielson was swapped out for Ms. Chubb.  
[49] On May 21, the Petition Group posted on Facebook that it would be amalgamating with  
the Election Group and announced that the merged Facebook page would be the Election Group’s  
page:  
Co-op Members for Fairness share our points of unity respect for workers and their  
representative organizations replacement of the Saskatoon Co-op Board with Co-op  
Members who feel that FCL (Co-op’s Management) must answer to the Board, not the  
other way around.  
[50] The Union endorsed the candidates chosen by the Election Group.  
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[51] In addition to some detailed information describing her interest in the co-op movement  
and support for co-operative values, Ms. Chubb’s candidate profile raises concerns with the two-  
tier wage system as violating the co-operative value of equality, and states: “Perhaps by next  
year, a sufficient number of Members of the Board would support reopening negotiations with the  
Union for the purpose of returning to a one-tier wage structure.”  
[52] Ms. Hicks’s candidate profile indicates opposition to the two-tier wage structure, and  
outlines why, from her perspective, the two-tier wage structure does not align with co-operative  
values. Ms. Hicks later became an employee of the Union.  
[53] The AGM was held on June 20, 2019 at TCU Place in Saskatoon. Prior to the AGM, the  
Union held a meeting at the same location. The candidates were invited to present on their  
platforms.  
[54] The AGM was very well attended significantly more so than usual. There was lively  
discussion. Among others, Lily Olson, a National Representative for UFCW, spoke. She criticized  
the Employer’s position on the second tier.  
[55] There were 15 candidates running for the three available seats on the board. They made  
speeches. Ms. Chubb stated that the “current board in my opinion made a mistake in a two tier  
wage structure. I think a two tier wage structure does not conform to Co-operative values”. In his  
speech, Mr. Danielson referred to the pre-determined Federated Co-operatives [FCL] and Union  
“slates”, observing that members “tell me they prefer a candidate not bound by any special interest  
group”. He also spoke about taking back control of the Co-op.  
[56] Two new directors were elected to the Board of Directors: Ms. Ritchie and Ms. Chubb. Ms.  
Hicks came in fifth in the ballot results. One existing director was re-elected.  
[57] The AGMs that took place in 2020 and 2021 were held on a virtual platform.  
[58] Mr. Burke testified about the Employer’s practice of making candidate recommendations,  
through senior management, to other managers within the company. The recommendations were  
for candidates who demonstrated alignment with the Co-op’s long-term interests. Managers were  
encouraged to attend the AGM.  
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[59] At the AGMs, there were generally two groups of voters divided roughly along the lines of,  
first, out-of-scope staff and, second, in-scope staff with Union friendly people. There was also a  
third neutral group.  
[60] In June 2020, Ms. Figueiredo attended a Town Hall focusing on the Co-op Refinery  
lockout. Ms. Figueiredo testified that she and Mr. Neault attended the meeting to ensure that no  
one was going to boycott the Saskatoon Co-op stores.  
[61] After the AGM, the two Facebook pages were merged.  
Statutory Provisions:  
[62] The following provisions of The Saskatchewan Employment Act are applicable to this  
matter:  
64(1) Employees have the right to organize in and to form, join or assist unions and to  
engage in collective bargaining through a union of their own choosing.  
(2) No employee shall unreasonably be denied membership in a union.  
67 Every union and employer shall, in good faith, engage in collective bargaining in the  
time and in the manner required pursuant to this Part or by an order of the board.  
641(1) A collective agreement is binding on:  
(a) a union that:  
(i) has entered into it; or  
(ii) becomes subject to it in accordance with this Part;  
(b) every employee of an employer mentioned in clause (c) who is included in or  
affected by it; and  
(c) an employer who has entered into it.  
(2) A person bound by a collective agreement, whether entered into before or after the  
coming into force of this Part, must, in accordance with the provisions of the collective  
agreement:  
(a) do everything the person is required to do; and  
(b) refrain from doing anything the person is required to refrain from doing.  
(3) A failure to meet a requirement of subsection (2) is a contravention of this Part.  
(4) If an agreement is reached as the result of collective bargaining, both parties shall  
execute it.  
(5) Nothing in this section requires or authorizes a person to do anything that conflicts with  
a requirement of this Part.  
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(6) If there is any conflict between a provision of a collective agreement and a requirement  
of this Part, the requirement of this Part prevails.  
663(1) It is an unfair labour practice for an employee, union or any other person to do any  
of the following:  
(c) to fail or refuse to engage in collective bargaining with the employer respecting  
employees in a bargaining unit if a certification order has been issued for that unit;  
(h) to contravene an obligation, a prohibition or other provision of this Part imposed  
on or applicable to a union or an employee.  
6104 (2) In addition to any other powers given to the board pursuant to this Part, the board  
may make orders:  
(a) requiring an employer or a union representing the majority of employees in a  
bargaining unit to engage in collective bargaining;  
(b) determining whether an unfair labour practice or a contravention of this Part,  
the regulations made pursuant to this Part or an order or decision of the board is  
being or has been engaged in;  
(c) requiring any person to do any of the following:  
(i) to refrain from contravening this Part, the regulations made pursuant to  
this Part or an order or decision of the board or from engaging in any unfair  
labour practice;  
(ii) to do any thing for the purpose of rectifying a contravention of this Part,  
the regulations made pursuant to this Part or an order or decision of the  
board;  
[63] The Union has also raised the following provisions of the Canadian Charter of Rights and  
Freedoms1 [Charter] and The Saskatchewan Human Rights Code2:  
The Charter:  
2 Everyone has the following fundamental freedoms:  
(a) freedom of conscience and religion;  
(b) freedom of thought, belief, opinion and expression, including freedom of the  
press and other media of communication;  
(c) freedom of peaceful assembly; and  
(d) freedom of association.  
The Saskatchewan Human Rights Code:  
1 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.  
2 2018, SS 2018, c S-24.2.  
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5 Every person and every class of persons has the right to freedom of expression  
through all means of communication, including the arts, speech, the press or radio,  
television or any other broadcasting device.  
6 Every person and every class of persons has the right to peaceable assembly with  
others and to form with others associations of any character under the law.  
Arguments:  
Saskatoon Co-op:  
[64] The respondents have attempted to undermine the collective bargaining process, using  
two methods, namely, the use of the petition and the interference with the election. The  
respondents have attempted a takeover of the Board of Directors to achieve their goal of  
eliminating the proposed two-tier wage schedule, and to achieve indirectly what they could not  
achieve directly through the collective bargaining process. Both schemes are bad faith bargaining.  
[65] The actions of the respondents are an example of what has come to be known as  
“astroturfing”. Astroturfing is organized activity that is intended to create a false impression of a  
grassroots movement.  
[66] In considering clause 6-63(1)(c) of the Act, the Employer acknowledges that the provision  
has not been subject to much consideration by this Board and asks the Board to rely on the  
analysis used in relation to clause 6-62(1)(d) of the Act. The Employer refers to C.A.S.A.W., Local  
4 v Royal Oak Mines Inc., [1996] 1 SCR 369 (SCC) [Royal Oak], in which it was explained that  
the duty to bargain in good faith requires a commitment “from each side to honestly strive to find  
a middle ground between their opposing interests.”  
[67] The Union had a duty to bargain. Even after the collective agreement was concluded, the  
respondents continued to seek to overthrow the Board of Directors with the express goal of re-  
opening the agreement and removing the second tier.  
[68] Although there is no specific prohibition against a union’s interference with the internal  
affairs of an employer, it is implicit. The absence of a specific statutory provision should not be  
interpreted to mean that the Legislature intended to permit union interference with employer  
governance structures. The unique circumstances in this case, in which the members are  
statutorily permitted to directly influence the governance structure of the co-operative, introduces  
an uncommon coercive power. For the Act to be coherent, there must be an implied prohibition  
on a union interfering with employer governance structures for the purpose of collective  
bargaining.  
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[69] The purpose of clause 6-62(1)(b) of the Act is to ensure that an employer will not control  
the union with which it will negotiate and thus assure that the negotiations will be conducted at  
arm’s length. Allowing a union to interfere with the governance structure of an employer during  
collective bargaining, while prohibiting an employer from doing the reverse, would introduce an  
absurd double standard into the Act. Similarly, the definition of a strike contained in clause 6-  
1(1)(n) of the Act should not be interpreted so as to include attempts to undermine an employer’s  
governance structure.  
[70] Finally, the respondents’ actions demonstrate that the Union refuses to be bound by a  
collective agreement and seeks to improperly renege on its terms, in contravention of sections 6-  
41 and 6-63(1)(h) of the Act.  
[71] Mr. Thebaud acted as an agent of the Union in organizing the petition. The Board has  
previously acknowledged that individuals can be found to be agents of a union: Amenity Health  
Care L.P. v Workers United Canada Council, Tanya Parkman and Gwen April Britton, 2018  
68441 (SK LRB) [Amenity Health Care], at paragraph 121.  
[72] To find that Mr. Thebaud was acting as an agent of the Union, the Board should adopt the  
reasoning used in decertification applications. In those applications, the Board considers whether  
there is evidence from which it can draw an inference that the employer was involved in the  
making of the application. Any unusual or suspicious circumstances invite a close examination.  
[73] Even if Mr. Thebaud was not acting on behalf of the Union, it remains the case that Mr.  
Thebaud has committed an unfair labour practice pursuant to subsection 6-63(1) of the Act.  
[74] The Employer submits that, although it is entitled to significant remedies against the  
respondents, it is waiving any right to monetary loss. It is instead seeking the following remedies:  
A declaration that the respondents have engaged in an unfair labour practice;  
An order that the respondents cease and refrain from coordinating with third party  
organizations, directly or indirectly, to subvert collective bargaining and/or interfere with  
Saskatoon Co-op’s governance structure;  
An order that the Union distribute a copy of the Board’s decision to every Saskatoon Co-  
op employee represented by the Union; and  
Such further and other relief as the Board may determine appropriate.  
15  
Union:  
[75] The Union says that the Employer’s factual allegations are simply false, as follows:  
The Union did not organize and was not in control of the petition;  
The Union did not organize and was not in control of Mr. Thebaud;  
The Union did not organize and was not in control of the Election Group;  
The Union did not organize and was not in control of the Resolutions;  
The Union did not organize and was not in control of the director candidates.  
[76] Neither Mr. Thebaud nor the Election Group members were agents of the Union. Any  
alignment of interest was nothing more than that an alignment of interest.  
[77] There was no plan to overtake the governance of the Co-op or to unwind the collective  
agreement.  
[78] The Union objects in the strongest possible terms to the theory adopted by the Employer.  
It is overreaching, seeking as it does to transform the duty to bargain in good faith into a trojan  
guarantor of the Employer’s bargaining positions, and trampling on the Union’s well-established  
constitutional, statutory, and common law rights to advance its positions in collective bargaining  
and to participate in picketing activities.  
[79] The current application should be situated within its context, which includes a broader  
community movement through which concerns have been raised about the application of co-  
operative values and about the relationship between FCL and the organization of local co-  
operatives. There is a perceived democratic deficit in Saskatoon Co-op’s governance.  
[80] The Union has a history of participating in Saskatoon Co-op politics, which includes  
supporting directors with whom the Union has confidence. It is a longstanding practice of the  
Union to hold a stewards’ meeting immediately prior to the AGM to discuss and possibly endorse  
director candidates. Management of the Co-op engages in a mirror image practice by selecting  
directors who are understood to be “friendlies” and encouraging employees to attend the AGM  
and vote for those candidates.  
[81] The Union went on strike because of its opposition to the two-tier wage proposal, and as  
part of its efforts during the strike, it voiced its opposition to that proposal. The Union sought to  
exert influence on the Employer and the public in support of its position. The Union’s position with  
16  
respect to the two-tier wage structure was not a secret. The Employer is now asking the Board to  
restrain the Union from resisting (or having resisted) its bargaining proposal. The Union did not  
arrange or organize Mr. Thebaud’s activities, but it was permissible for it to support, organize or  
agree with a campaign that put pressure on the Employer in relation to the very issue that lay at  
the heart of the strike.  
[82] The Union asserts that its conduct is protected, not only as part of the right to strike, but  
more broadly within the framework of expressive and associational rights. For this assertion, the  
Union relies on Pepsi-Cola Canada Beverages (West) Ltd. v R.W.D.S.U., Local 558, 2002 SCC  
8 [Pepsi]; U.F.C.W., Local 1518, v KMart Canada Ltd., 1999 650 (SCC), [1999] 2 SCR  
1083 [KMart]; and UFCW, Local 401 v Alberta (Information and Privacy Commissioner), 2013  
SCC 62 [Alberta IPC]. The Board should apply the Charter values test in Doré v Barreau du  
Québec, 2012 SCC 12 (), [2012] 1 SCR 395 [Doré]. The Union also relies on sections 5  
and 6 of The Saskatchewan Human Rights Code which provide for a right to free expression and  
a right to peaceable assembly and to free association, respectively.  
[83] The Employer’s allegations seek to restrain the Union’s picketing activities and to restrain  
activities that are closely analogous to picketing activities, such as the dissemination and support  
for a message related to the labour dispute; the public expression of opposition to the two-tier  
wage structure; the attendance at public meetings; and, the association with members of the  
public who were involved in Saskatoon Co-op politics, including some with interests that were in  
alignment with the Union.  
[84] The Union has done nothing that should be found to be a violation of its duty to bargain in  
good faith. The Employer is not claiming that the Union undermined bargaining efforts or did  
anything less than try to conclude an agreement. The Employer is attempting to shoehorn the  
facts into a category of violation that does not exist at law. It is not an unfair labour practice for a  
union to attempt to elicit public sympathy for its positions through pickets and dissemination of  
union literature. The Employer’s application is equivalent to a complaint about the Union’s  
opposition to its bargaining position.  
[85] A union is not restricted in its actions in the same manner as is an employer. This not an  
accident but is directly related to the history and purpose of the collective bargaining regime. The  
Act does not prohibit the type of “conduct away from the bargaining table” at issue in this case.  
The unfair labour practice that is established through a failure or refusal to bargain in good faith  
stands on its own; it is not an alternate vessel for a non-existent interference prohibition. The  
17  
Employer seeks to use this application to expand the duty to bargain in good faith beyond what it  
was intended to cover.  
[86] Even if the direct bargaining cases are superficially similar to the facts as alleged in this  
case, they are not substantially the same. The prohibition on employers against direct bargaining  
with employees does not have an equivalent for unions.  
[87] Finally, the Board ought not “take jurisdiction” over what is essentially a dispute among  
the stakeholders of a co-operative. Sections 188, 189, and 190 of The Co-op Act set out the  
derivative action and oppression remedies available in the event of a finding of impropriety by the  
directors. The Court of Queen’s Bench has jurisdiction over matters arising from The Co-op Act,  
including by supervising the administration of petitions, elections, and the conduct of meetings.  
Mr. Thebaud:  
[88] Mr. Thebaud’s argument is succinct. He relies on Saskatoon Co-Operative Association  
Limited v Craig Thebaud, 2020 35487 (SK LRB) [Thebaud Summary Dismissal] for its  
consideration of the application of the unfair labour practice provisions to individuals. He also  
relies on the wording of the statutory provisions that have been put in issue.  
[89] First, section 6-7 of the Act states that every union and every employer shall engage in  
good faith collective bargaining. There is no evidence that Mr. Thebaud is a union or an employer.  
Therefore, he cannot be found to have committed a violation of this provision.  
[90] Second, section 6-41 states that a collective agreement is binding on a union, employees  
of an employer, and an employer. A person bound by a collective agreement must do everything  
the person is required to do and must refrain from doing anything the person is required to refrain  
from doing. There is no evidence that Mr. Thebaud is a union, employee, or an employer.  
Therefore, Mr. Thebaud cannot be found to have breached this section of the Act.  
[91] Third, clause 6-63(1)(c) states that it is an unfair labour practice to fail or refuse to engage  
in collective bargaining with an employer respecting employees in a bargaining unit if a  
certification order has been issued for that unit. Mr. Thebaud is not listed on the certification order.  
Individuals do not have an obligation to bargain with employers. Individuals cannot be held  
responsible for violations of this section of the Act. Therefore, Mr. Thebaud cannot be found to  
have breached this section of the Act.  
18  
[92] Fourth, clause 6-63(1)(h) states that it is unfair labour practice to contravene an obligation,  
a prohibition or other provision of Part VI imposed on or applicable to a union or an employee.  
There is no evidence that Mr. Thebaud is a union or an employee. Therefore, Mr. Thebaud cannot  
be found to have breached this section of the Act.  
[93] Given the foregoing, there are no grounds upon which the Board can find that Mr. Thebaud  
has committed an unfair labour practice.  
Analysis:  
[94] The issues for the Board to determine are whether the respondents have contravened  
sections 6-7, 6-63(1)(c), 6-41, or 6-63(1)(h) of the Act. The Employer bears the onus to prove a  
contravention on a balance of probabilities.  
Preliminary Issues:  
General:  
[95] There are two preliminary issues. The first is whether Mr. Thebaud, acting alone or as an  
agent, can be found to be in violation of sections 6-7, 6-63(1)(c), 6-41, or 6-63(1)(h) of the Act.  
The second is whether Mr. Thebaud acted as an agent of the Union.  
[96] The Board will consider, first, whether Mr. Thebaud, acting alone or as an agent, can be  
found to be in violation of the relevant provisions of the Act.  
[97] The Board considered a similar issue in Thebaud Summary Dismissal. The issue in that  
case was whether the Board should grant an application for summary dismissal brought by the  
Employer, Saskatoon Co-op, as against Mr. Thebaud in relation to Mr. Thebaud’s own unfair  
labour practice application. In his application, Mr. Thebaud had alleged that the Employer had  
engaged agents to conduct espionage at various events in and around June and July 2019, and  
thereby contravened clause 6-62(1)(j) of the Act, which states:  
6-62(1) It is an unfair labour practice for an employer, or any person acting on behalf of  
the employer, to do any of the following:  
(j) to maintain a system of industrial espionage or to employ or direct any person  
to spy on a union member or on the proceedings of a labour organization or its  
offices or on the exercise by any employee of any right provided by this Part;  
19  
[98] The Board granted the summary dismissal because Mr. Thebaud did not have standing  
on an application brought pursuant to clause 6-62(1)(j). Based on his own denials, he was not a  
union member or an employee, or agent of the union, and did not have a sufficient interest or  
stake in the matter.  
[99] In considering the matter, the Board addressed the parties’ arguments about the decision  
in Metz v S.G.E.U., [2003] Sask LRBR 28 [Metz]:  
[36] In Metz, the Board considered the applicant’s standing to bring an application pursuant  
to clause 11(1)(c) of now-repealed The Trade Union Act. As Mr. Thebaud accurately  
observes, Metz does not stand for the proposition that an individual can never bring an  
unfair labour practice. Rather, it stands for the proposition that an individual cannot bring  
an unfair labour practice application alleging that a union or an employer has failed to  
bargain in good faith. This makes sense, because the duty to bargain in good faith is a duty  
that belongs to unions and employers.  
[37] The following excerpt from Metz is apposite:[5]  
We find that the Applicant lacks standing to bring the s. 11(1)(c) complaint against  
the Employer. The Employer owes a duty to bargain in good faith to the Union  
selected by the employees to be their exclusive representative. Once employees  
select a union to represent them in collective bargaining, the Employer must  
negotiate work place disputes exclusively with the Union. As set out by the Ontario  
Labour Relations Board in Beurling v. C.L.A.C., [1998] O.L.R.B. Rep. 115 (Ont.  
L.R.B.) at para. 9, citing Abramowitz v. O.P.S.E.U., [1987] O.L.R.B. Rep.455 (Ont.  
L.R.B.), at para. 8:  
Thus, the Board has consistently held in the context of The Labour  
Relations Act that employees do not have the status to assert that their  
trade union or their employer has violated the duty to bargain in good faith  
and make every reasonable effort to make a collective agreement ... The  
bargaining duty imposed by those provisions is owed by the trade union  
to the employer, and vice versa.  
For these reasons, the unfair labour practice application brought by the  
Applicant against the Employer is dismissed for lack of standing.  
[100] This holding in Metz was followed in Saskatchewan Power Corporation v Joel Zand, 2020  
36086 (SK LRB) and Wees v Saskatchewan Insurance, 2005 63094 (SK LRB).  
[101] Section 6-7 states that every union and employer shall, in good faith, engage in collective  
bargaining in the time and in the manner required pursuant to Part VI or an order of this Board.  
The bargaining duty imposed by section 6-7 is owed by the union to the employer, and vice versa.  
[102] Section 6-63 provides for a broader range of potential actors than does section 6-62. The  
introductory clause of section 6-62 states that it “is an unfair labour practice for an employer, or  
any person acting on behalf of the employer, to do any of the following.” This is in contrast with  
20  
section 6-63, which states that it “is an unfair labour practice for an employee, union or any other  
person to do any of the following”. The Board must give effect to the phrase “any other person”.  
[103] On the other hand, clause 6-63(1)(c) uses specific language setting out potential breaches  
that are caught by that provision. It is an unfair labour practice to “fail or refuse to engage in  
collective bargaining”. This is in comparison with clause 6-63(1)(a), which states that it is an unfair  
labour practice to “interfere with” or “restrain” an employee for a particular purpose. There, the  
phrase “any other person” has broader practical applicability. Many of the clauses within section  
6-63 use similarly specific language appropriate for the unfair labour practices they describe and  
provide context for the meaning of “any other person”. Many of these are more broadly worded  
than clause 6-63(1)(c).  
[104] It should also be noted that some of these unfair labour practice provisions address a  
union’s conduct vis-à-vis employees, placing an emphasis on employee choice: (1)(a),  
(intimidation); (1)(e) (terminating for failure to maintain membership); (1)(f) (discouraging  
decertification); and, (1)(g) (orderly transition post replacement). Other provisions regulate the  
tripartite relationship among the union, employer, and employees, but also involve an issue of  
choice: (1)(b) (pending matter); (1)(d) (strike vote). Any person who offends employee choice, in  
the manner described in those provisions, commits an unfair labour practice.  
[105] The ordinary and grammatical meaning of clause 6-63(1)(c) is that it is an unfair labour  
practice for a person who is subject to the duty to refuse or fail to comply. The duty arises from  
the language set out at section 6-7, which refers to the employer and the union and, in the case  
of a renewal or revision, section 6-26, which refers to “either party” to the collective agreement.  
The phrase “any other person” supports extending the duty to those acting as agents for a person  
who has such a duty.  
[106] The mirror unfair labour practice, applicable to employers, does not apply to third party  
actors who do not act on behalf of an employer. This also weighs in favour of adopting the  
foregoing interpretation.  
[107] Mr. Thebaud is not a person, who if acting alone, is contemplated by clause 6-63(1)(c).  
He did not have a duty that he could have refused or failed to do.  
[108] Next, section 6-41 of the Act states that a collective agreement is binding on a union that  
has entered into it and every employee of an employer who is included in or affected by it. A  
person bound by a collective agreement must do everything the person is required to do and  
21  
refrain from doing anything the person is required to refrain from doing. As per subsection (4), the  
word “both” suggests that the “parties” are the union and the employer. Employees are also  
“bound” by a collective agreement. Mr. Thebaud, not being an employee of Saskatoon Co-op, is  
not bound by the collective agreement.  
[109] Lastly, clause 6-63(1)(h) states that “[i]t is an unfair labour practice for an employee, union  
or any other person…to contravene an obligation, a prohibition or other provision” of Part VI  
“imposed on or applicable to a union or an employee”. Clause 6-63(1)(h) refers to a “union” or an  
“employee”. In Amenity Health Care, the Board found that the union and two individuals  
committed an unfair labour practice contrary to clause 6-63(1)(h) by promoting and encouraging  
voting in a manner that was not a secret ballot. The two individuals were employees.  
[110] Mr. Thebaud, acting alone, cannot be found liable for a breach of clause 6-63(1)(h) of the  
Act.  
[111] However, the fact that an individual may not be liable for a breach does not prevent the  
Board from making an order requiring that person to rectify a violation of the Act committed by  
another party. Clause 6-104(2)(c) permits the Board to require any person to do any thing for the  
purpose of rectifying a contravention of Part VI. The Court of Appeal made this point in The City  
of Saskatoon v Amalgamated Transit Union, 2013 SKCA 132 (), in relation to a  
substantially similar provision of the previous Act:  
[30] The City’s first argument concerns the specific meanings of ss. 5(e)(ii) and 42. With  
respect to s. 5(e)(ii), the City acknowledges the language giving the Board authority to  
require “any person” to do “any thing for the purpose of rectifying a violation of this Act.”  
However, it says this authority can only affect the parties directly involved in a dispute. In  
this case, that would be the Union and Mr. Read.  
[31] I am not persuaded that s. 5(e)(ii) should be read quite this categorically or narrowly.  
The words “any person” were obviously chosen deliberately by the Legislature. This is  
apparent from the fact that other parts of s. 5 use the terms “employer,” “trade union” and  
“employee.” For example, ss. 5(c) and (l) read as follows:  
5 The board may make orders:  
(c) requiring an employer or a trade union representing the majority of employees  
in an appropriate unit to bargain collectively;  
(l) excluding from an appropriate unit of employees an employee whom the board  
finds, in its absolute discretion, objects;  
[emphasis added]  
22  
All of this suggests that the reference to “any person” in s. 5(e)(ii) was intended to give the  
Board a broader authority than the one described by the City. And the City, after all, was  
named as a party to the proceedings before the Board. It was not a stranger to them.  
[32] It is also significant that s. 5(e) originally provided only that the Board could make  
orders “requiring any person to refrain from violations of this Act or from engaging in any  
unfair labour practice.” This language, if applied to the circumstances of this case, would  
embrace only the Union. However, s. 5(e) was amended in 1994 to include what is now s.  
5(e)(ii), i.e. a power to require “any person” to do any thing for the purpose of “rectifying a  
violation of this Act.” See: The Trade Union Amendment Act, 1994, S.S. 1994, c. 47. This  
change clearly broadened the reach of s. 5(e) and, on its face, extended that reach to  
include an employer in the position of the City.  
[112] Furthermore, the language “any other person” in subsection 6-63(1), combined with the  
remedial power provided by clause 6-104(2)(c), allows for agent liability.  
[113] The next question is whether Mr. Thebaud was acting as an agent of the Union.  
[114] In Canadian Agency Law, Professor Fridman explains that agency must be specifically  
pleaded by the party alleging that it exists, that the question of whether agency exists is a question  
of fact, and the onus of proving the existence of agency is on the party that is pleading its  
existence.3 Professor Fridman defines agency as follows:  
Agency is the relationship that exists between two persons when one, called the agent, is  
considered in law to represent the other, called the principal, in such a way as to be able  
to affect the principal’s legal position by the making of contracts or the disposition of  
property.  
[115] Professor Fridman explains that “the basis of agency is the endowment by the principal of  
the agent with the power to act, coupled with the exercise of that power by the agent”.4 Professor  
Fridman explains that, to be an agent, a person must have been authorized by the principal to act  
in a manner that would affect the principal’s legal situation:  
In accordance with this definition, the law of agency will only apply to a relationship in which  
the agent is endowed by the principal with the power to change the principal’s legal  
situation and the principal is subjected to the liability of such change. The endowment of  
such power and the susceptibility of such liability are essential features of agency. In the  
absence of such a power-liability relationship there cannot be an agency. To be an agent,  
a person must have been authorized by the principal, in ways to be examined later, to act  
in a manner that will affect the legal situation of the principal for whom the agent acts vis-  
à-vis a third party. In the absence of any such authority there is no legal agency.5  
[116] In considering whether agency exists, the Board should bear in mind:  
3 G.H.L. Fridman, Canadian Agency Law, 3rd ed (Toronto: LexisNexis, 2017) at 1.3, ftnt 10.  
4 Canadian Agency Law at 1.13.  
5 Ibid, at 1.2.  
23  
…If there is no evidence capable of establishing that one party intended another to act as  
his or her agent, there is no agency. It is the effect in law of the way the parties have  
conducted themselves and the language they have used that must be investigated to  
determine whether an agency relationship has come into existence.6  
[117] In general, for agency to exist in law there must be either consent (without a contract), a  
contract, or estoppel. Consent may be explicit or implicit. In the latter case, an agency relationship  
is created where the principal behaves in such a way so that consent may be implied. There may  
be instances in which an agency relationship exists without consent, contract, or the operation of  
estoppel, but these are less common.7  
Application of the Agency Law to the Facts Petition:  
[118] First, there is no question whether the Employer specifically pleaded agency. It did.  
[119] Whether Mr. Thebaud acted as an agent of the Union is a question of fact, applying the  
relevant principles of law. The question, then, is whether the Union endowed Mr. Thebaud with  
the power to act in a manner that would affect its legal situation and whether Mr. Thebaud  
exercised that power.  
[120] To begin, the Board does not believe that the Union representatives reached out to Mr.  
Thebaud and then directly asked him or directed him to pursue the petition or take any other  
action to overthrow the Board of Directors. Even though he had a history with the Union, Mr.  
Thebaud did not leave his employment with the Union on positive terms. There is no evidence  
that he had an ongoing relationship with Ms. Figuieredo or Mr. Neault after his departure.  
[121] Mr. Thebaud provided a detailed, credible explanation about his thought-process leading  
up to and his preparation when drafting the petition. When he first contacted Mr. Neault, he  
explained his motivation for having decided to draft the petition. At that point, he had solidified the  
basic strategy. The Board has no reason to believe that Mr. Thebaud was not capable of doing  
the research and planning that he claims to have done. Nor does the Board have any reason to  
believe that the Union “wound him up” and “sent him on his way”. It is likely that he initiated the  
petition without the Union’s knowledge.  
6 Ibid.  
7 Ibid at 1.10.  
24  
[122] The Employer asserts that Mr. Thebaud “has no real direct interest in the Saskatoon Co-  
op”, suggesting that he does not have the requisite motivation of a lone actor. The Board finds  
this argument unpersuasive. It overlooks the fact that Mr. Thebaud is an activist with demonstrably  
strong views. He was working alongside and with the support of an obviously active and  
passionate movement whose collective objective was to bring “co-operative values” back to the  
Co-op. There is considerable evidence of a broader community interest in the management of the  
Co-op. Just because Mr. Thebaud could not be found to have had a material self-interest, other  
than in his “equity”, does not mean that he did not have other, values-based motivations.  
[123] Furthermore, two-tier wage systems are not minor issues with which a broader social  
movement, including a broader union movement, is unlikely to be concerned. This is not to  
suggest that two-tier wage systems are new or unusual, generally illegal, a breach of a union’s  
duty of fair representation, or not apt to be accepted by a union.8 However, the case law discloses  
a not uncommon concern that a two-tier wage system will foment dissent and erode the solidarity  
of the union. Solidarity is a pillar of union strength and a fundamental principle of the union  
movement.  
[124] An example of the type of concern with two-tier wage systems is highlighted in the  
following passage from IWA-Canada, Local 2693 v MacMillan Bloedel Building Materials Limited,  
1990 5728 (ON LRB), an application to settle a first contract by arbitration:  
22. As Mr. Dines testified, the company took this position for several reasons. The  
com•pany felt that if it gave organized workers the benefit levels that unorganized  
employees had received, then it would be pressured to provide similar higher levels in its  
other collective agree•ments with the applicant, the applicant would be able to organize  
elsewhere in the company, the customers who bargained with the applicant would leave  
the company, and competitors of the company would have to pay similar benefits to their  
unionized workers. The objection was not per se to paying such high levels of benefits, for  
the company had always paid this level to its (unorgan•ized) employees. Nor (for example)  
had the company previously been concerned that the high lev•els of benefits it paid might  
put pressure on its competitors to pay similar high levels. It was only concerned that it not  
pay its unionized employees these high benefits. The objection was to contin•uing to pay  
such levels to employees because they were now organized. These justifications, looked  
at in context, are designed to send a message that unionizing will cost employees the  
benefits they had received prior to becoming organized. Although current employees and  
those hired before January 1, 1990 would continue to receive the current benefits, a two-  
tiered system as proposed by the employer would clearly foment dissension within the  
bargaining unit and with the bargaining agent. It is a proposal which will likely lead to a  
decertification application, for under it new employees will receive less benefits only  
because the union represents them. Two-tiered systems are not inherently unreasonable,  
and many negotiations consider such proposals. What makes the instant proposal  
unreasonable is the context in which it is proferred and the justifications or rea•sons behind  
8 See, for example, UFCW, Local 340 v Saskatchewan Brewers Association Ltd., LRB File No. 245-95 [Sask Brewers  
Association].  
25  
it. The employer's bargaining position is also designed to discourage other employees who  
might want representation, and unions who might seek to organize them. It tells them that  
the response to unionization is a reduction in benefits. It is qualitatively no different a  
message than threatening to lay off employees or close the business only because  
employees have organized or are contemplating so doing. This bargaining position is not  
reasonably justified for purposes of sec•tion 40a(2)(b) of the Act. It is not reasonable to  
take a position of reducing current benefits when one of the main reasons for doing so is  
only because a union now represents employees.9  
[125] In the current case, there is considerable evidence of a broader social movement raising  
concerns with many of the foregoing issues, in particular, equity among employees, member  
solidarity, and union strength. These issues were continuously raised and addressed, as  
disclosed in various exhibits before the Board, including statements from multiple individuals  
made on Facebook; non-employee candidate profiles for the election to the Board of Directors;  
transcripts of candidate speeches; and, Mr. Danielson’s presentation on “Making a profit based  
on Co-operative values” given at a Town Hall meeting. One need only review the candidate  
profiles to appreciate the significance of, and even identification with, the issues on the part of  
some of the non-employee Co-op members.  
[126] As such, the Board does not believe that the Union orchestrated a fake grassroots  
movement as a front to advance its agenda. To so find would be to completely disregard the very  
real and very active co-operative movement that is apparent on any, even cursory, review of the  
evidence.  
[127] However, the absence of a finding of explicit consent or “astroturfing” does not prevent the  
Board from making a finding of an agency relationship. Although the Union did not direct Mr.  
Thebaud to pursue the petition, it did endow him with the power to act in a manner that would  
affect its legal situation. The Union’s consent was implicit and is inferred from its conduct.  
[128] The Union cannot reasonably claim that it was not aware of the broader objective of the  
petition. Mr. Thebaud organized the petition to remove the Board of Directors and promoted the  
signing of the petition through a Facebook page that he managed. The express purpose of the  
petition was to affect the course of Union-Employer negotiations to the benefit of the Union’s  
negotiating position.  
[129] Mr. Thebaud was the spokesperson for the Petition Group. He reached out to Mr. Neault,  
the President of the Union, to ask if he had an issue with the petition. He was concerned,  
9 Note, however, the dissenting opinion finding that the employer had not been uncompromising in its bargaining  
position.  
26  
specifically, with whether the petition would negatively impact the picket line. Mr. Neault indicated  
that he had no concerns. Given this exchange and Mr. Thebaud’s testimony, it is not likely that  
Mr. Thebaud would have proceeded with the petition had he been told that the Union had  
concerns with his actions.  
[130] Mr. Thebaud also called Mr. Neault to notify him that some people would be coming to the  
picket line to gather signatures. The Union shared the petition link to its Facebook page and Ms.  
Figuieredo placed it on the Union office front counter.  
[131] On Mr. Thebaud’s personal Facebook page, Jennifer Bowes directed potential signatories  
to the picket captains on the picket lines. The petition was circulated on the picket lines. The  
Union, which was responsible for the picket lines, permitted the petition to be circulated there. On  
the same Facebook page, Mr. Hicks encouraged people to drop the petitions off at the picket  
lines. Picketers and Union members were in attendance at the court hearing about the petition.  
[132] Mr. Thebaud “blind-copied” the Union on press releases, including the release announcing  
that the special meeting had been requested.  
[133] There was a perceived potential benefit to the Union as a result of the actions of Mr.  
Thebaud and the petition. This is so, even if Mr. Neault didn’t really believe the petition would be  
successful. At no time did the Union repudiate the petition or Mr. Thebaud’s actions.  
[134] The Union, in its Reply to the Application, sworn by Ms. Figueiredo, denied that it  
“expressly supported, promoted or otherwise endorsed the Petition”.10 This categorical denial is  
contradicted by the evidence and it undermines Ms. Figueiredo’s credibility. Clearly, the Union  
promoted the petition.  
[135] In his cross examination by counsel for the Employer, Mr. Thebaud denied hoping that the  
Union would collect signatures for the petition, denied that he knew that the petition was on their  
front counter and suggested that no one had attended the Union office to retrieve the completed  
petition forms. Given the evidence, these statements, in particular the first statement, are  
unreliable.  
[136] Ms. Figueiredo and Mr. Thebaud have each attempted to distance themselves from the  
actions of the other.  
10 Union Reply, at para 8.  
27  
[137] The Union endowed Mr. Thebaud with the power to act in a manner that was intended to  
affect its bargaining power, influence the negotiations, and result in a contract that was acceptable  
to it. The Union endowed Mr. Thebaud with the power to, in this way, intervene in the negotiations.  
In the beginning, the Union gave consent to the petition explicitly. It proceeded to provide implicit  
consent throughout the following days and weeks. As such, Mr. Thebaud acted as an agent of  
the Union.  
Involvement of Mr. Thebaud and Union in Election:  
[138] Mr. Thebaud’s involvement in the election is less central than in relation to the petition. As  
mentioned, there was a broader social movement afoot. Many people were operating on a  
grassroots level to find solutions to what they perceived to be a serious governance issue with  
the Co-op. The first Town Hall for this purpose took place a few weeks after the Court of Queen’s  
Bench decision was issued, in February 2019. Mr. Mills opened the meeting with a speech about  
the Co-op’s perceived democratic deficit. After the speech he introduced members of the  
bargaining committee who provided an update. Multiple strategies were being suggested or  
employed, including various resolutions, petitions, and voting in the director election.  
[139] At the next Town Hall Meeting, Mr. Thebaud was in attendance to give a presentation on  
the legal challenge related to the petition. There was also some focus on a media relations  
strategy. By the time the next meeting occurred, a committee, which apparently did not include  
Mr. Thebaud, had formed to develop a list of qualified candidates for the Board of Directors. One  
or two candidates had already announced an intention to run.  
[140] There are some obvious connections between the two Facebook groups and  
organizations, including participant overlap, objectives, and coordination. The decision to merge  
the pages was made. Mr. Thebaud explained that the work of the two groups was directed to the  
same ultimate objective, and his page enjoyed the most support of the two. Although there was a  
decision to merge the pages, Mr. Butz was concerned about losing supporters during the merger,  
and decided to postpone the merger until after the AGM. The two pages were formally merged at  
the end of June 2019. Before the merger, the Petition Group helped to advertise the AGM. After  
the merger, Mr. Thebaud remained an administrator of the page but was not actively involved in  
the page.  
[141] There is insufficient evidence to find that the Union consented specifically to Mr.  
Thebaud’s actions in relation to the election. Nonetheless, the Union was directly and centrally  
28  
involved in the election strategy at an early stage and prior to the conclusion of the collective  
agreement. Shortly after the Court of Queen’s Bench decision, the Union distributed a windshield  
flyer inviting Co-op members to attend the AGM. It encouraged people to apply for membership  
and attend the AGM to elect new Board members. It provided a rebate on initiation fees for new  
members. There was Union representation and significant participation at the Town Hall  
meetings. Meetings opened with Union members providing a strike update. A focus of the  
meetings was the concern with the second tier. Later, after the conclusion of the collective  
agreement, the Union publicly endorsed and promoted the candidates that were chosen through  
the Town Hall process.  
Mirror Duty:  
[142] The next question is whether there is a prohibition on conduct by a union that mirrors that  
set out in clause 6-62(1)(b) of the Act. The short answer to this question is “no”.  
[143] The Employer acknowledges that a mirror prohibition is not explicitly outlined in the Act. It  
says that the conditions necessitating an explicit prohibition could not have been contemplated  
by the Legislature. The current case is extremely unique. The Employer urges the Board to  
carefully review the facts and interpret the unfair labour practice provisions in a manner that does  
not result in an absurdity.  
[144] It is well recognized that the Legislature does not intend to produce absurd consequences:  
Re Rizzo and Rizzo Shoes Ltd., 1998 837 (SCC), [1998] 1 SCR 27 (SCC). The  
presumption against absurdity includes four propositions, summarized by Professor Sullivan, as  
follows: 11  
1.  
2.  
It is presumed that the legislature does not intend its legislation to have absurd  
consequences.  
Absurd consequences are not limited to logical contradictions or internal  
incoherence but include violations of established legal norms such as rule of law;  
they also include violations of widely accepted standards of justice and  
reasonableness.  
3.  
4.  
Whenever possible, an interpretation that leads to absurd consequences is  
rejected in favour of one that avoids absurdity.  
The greater the absurdity, the greater the departure from ordinary meaning that is  
tolerated.  
11 Sullivan on the Construction of Statutes, 6th ed. (Markham: LexisNexis, 2014) at 10.5 [Sullivan].  
29  
[145] Professor Sullivan explains that the courts have adopted inconsistent approaches to  
issues in consequential analysis in cases that involve text that is clear. She attempts to uncover  
a unifying principle among those cases:  
10.24 Governing Principle. Although the courts do not expressly say so, their practice  
appears to be guided by the following principle: the more compelling the absurdity to be  
avoided, the greater the departure from ordinary meaning that is tolerated; conversely, the  
clearer the language of the text, the greater the absurdity required to justify departure from  
its apparent meaning. If the language is relatively obvious and intolerable, most courts will  
strain language to avoid it and some courts will go further and significantly alter the  
legislative text. Absurd results can sometimes be avoided by correcting a clear drafting  
mistake.  
[146] The greater the absurdity, the greater the departure from ordinary meaning that tends to  
be tolerated. What the Employer asks of the Board is to read in a prohibition that is plainly absent  
from the legislation. This would be a departure from ordinary meaning in the extreme.  
[147] Professor Sullivan observes that “the courts are not allowed, under the guise of  
interpretation, to substitute their own notions of good policy for those of the legislature”.12 In all  
cases, the Board must apply the modern principle to give effect to the intention of the legislature.  
“An interpretation that would tend to frustrate legislative purpose or thwart the legislative scheme  
is likely to be labelled as absurd.”13  
[148] In assessing legislative purpose, the Board must be guided by section 6-4 of the Act, which  
states:  
6-4(1) Employees have the right to organize in and to form, join or assist unions and to  
engage in collective bargaining through a union of their own choosing.  
(2) No employee shall unreasonably be denied membership in a union.  
[149] Section 6-4 is the first provision in Division 2: Rights, Duties, Obligations and Prohibitions  
in Part VI (Labour Relations). Division 2, which comes after Division 1: Preliminary Matters for  
Part, set outs certain foundational principles for Part VI. Section 6-4 is a cornerstone of the Part.  
[150] Employees have the right to engage in collective bargaining through a union of their  
choosing. The effect of certification is to grant exclusive bargaining rights to a union on behalf of  
12 Ibid at 10.25.  
13 Ibid at 10.28.  
30  
a unit of employees, and to oblige the employer of those employees to deal with the union as the  
exclusive bargaining agent.14  
[151] A simple description of collective bargaining, such as that found in Health Services and  
Support - Facilities Subsector Bargaining Assn. v British Columbia, 2007 SCC 27 (), [2007]  
2 SCR 391 [Health Services], at paragraph 29, reveals the purpose of the existing prohibition  
against interference with internal affairs:  
Professor Bora Laskin (as he then was) aptly described collective bargaining over 60  
years ago as follows:  
Collective bargaining is the procedure through which the views of the workers are  
made known, expressed through representatives chosen by them, not through  
representatives selected or nominated or approved by employers. More than that,  
it is a procedure through which terms and conditions of employment may be settled  
by negotiations between an employer and his...employees on the basis of a  
comparative equality of bargaining strength.  
[152] Collective bargaining is the procedure through which the views of the workers are made  
known and expressed through representatives chosen by them.  
[153] By extension, the employer’s recognition of the union’s exclusivity and its treatment of the  
union as independent are critical components of the collective bargaining relationship.15 Conduct  
designed to undermine the union, for example, by negotiating directly with employees, may  
constitute an unfair labour practice. A labour organization or employee association that is  
dominated by an employer is not permitted to be certified under the Act.  
[154] The union’s status as exclusive bargaining agent arises from a historical compromise  
designed to eliminate recognition strikes and encourage greater industrial stability. This history is  
outlined in Health Services:  
54 While employers could refuse to recognize and bargain with unions, workers had  
recourse to an economic weapon: the powerful tool of calling a strike to force an employer  
to recognize a union and bargain collectively with it. The law gave both parties the ability  
to use economic weapons to attain their ends. Before the adoption of the modern statutory  
model of labour relations, the majority of strikes were motivated by the workers’ desire to  
have an employer recognize a union and bargain collectively with it (…). The  
unprecedented number of strikes, caused in large part by the refusal of employers to  
recognize unions and to bargain collectively, led to governments adopting the American  
Wagner Act model of legislation, discussed below.  
14 See, section 6-13 of the Act.  
15 See, for example, Cypress (Regional Health Authority) v Service Employees’ International Union-West, 2016 SKCA  
161 (), at paras 116, 117.  
31  
63 In summary, workers in Canada began forming collectives to bargain over working  
conditions with their employers as early as the 18th century. However, the common law  
cast a shadow over the rights of workers to act collectively. When Parliament first began  
recognizing workers’ rights, trade unions had no express statutory right to negotiate  
collectively with employers. Employers could simply ignore them. However, workers used  
the powerful economic weapon of strikes to gradually force employers to recognize unions  
and to bargain collectively with them. By adopting the Wagner Act model, governments  
across Canada recognized the fundamental need for workers to participate in the  
regulation of their work environment. This legislation confirmed what the labour movement  
had been fighting for over centuries and what it had access to in the laissez-faire era  
through the use of strikes the right to collective bargaining with employers.  
98 Consideration of the duty to negotiate in good faith which lies at the heart of collective  
bargaining may shed light on what constitutes improper interference with collective  
bargaining rights. It is worth referring again to principle H of the ILO principles concerning  
collective bargaining, which emphasizes the need for good faith in upholding the right to  
collective bargaining and in the course of collective bargaining. Principle H thus states:  
The principle of good faith in collective bargaining implies recognizing  
representative organizations, endeavouring to reach an agreement, engaging in  
genuine and constructive negotiations, avoiding unjustified delays in negotiation  
and mutually respecting the commitments entered into, taking into account the  
results of negotiations in good faith.  
[citations removed]  
[155] Relatedly, the requirement that the union be independent of management permits the  
union to undertake its exclusive duty to represent its members and to be involved in the fair  
administration of the collective agreement.  
[156] In Mounted Police Association of Ontario v Canada (Attorney General), 2015 SCC 1  
(), [2015] 1 SCR 3, the Supreme Court confirmed that the principle of independence in the  
collective bargaining context has constitutional status:  
[88] The function of collective bargaining is not served by a process which is dominated  
by or under the influence of management. This is why a meaningful process of collective  
bargaining protects the right of employees to form and join associations that are  
independent of management (Delisle, at paras. 32 and 37). Like choice, independence in  
the collective bargaining context is not absolute. The degree of independence required by  
the Charter for collective bargaining purposes is one that permits the activities of the  
association to be aligned with the interests of its members.  
[89] Just as with choice, independence from management ensures that the activities of  
the association reflect the interests of the employees, thus respecting the nature and  
purpose of the collective bargaining process and allowing it to function properly.  
Conversely, a lack of independence means that employees may not be able to advance  
their own interests, but are limited to picking and choosing from among the interests  
management permits them to advance.  
Relevant considerations in assessing  
independence include the freedom to amend the association’s constitution and rules, the  
freedom to elect the association’s representatives, control over financial administration and  
control over the activities the association chooses to pursue.  
32  
[99] In summary, a meaningful process of collective bargaining is a process that gives  
employees meaningful input into the selection of their collective goals, and a degree of  
independence from management sufficient to allow members to control the activities of the  
association, having regard to the industry and workplace in question. A labour relations  
scheme that complies with these requirements and thus allows collective bargaining to be  
pursued in a meaningful way satisfies s. 2(d).  
[157] An employer’s collective bargaining rights and duties arise when employees exercise their  
right to organize in a union. When a union is certified as an exclusive bargaining agent, the  
employer is obligated to bargain in good faith with the union. The employer’s duty to bargain  
places procedural constraints on its management of the workplace. As a result, it is often treated  
as a duty to be avoided.  
[158] The same is not generally true in the reverse. A union cannot be certified in the absence  
of an employer. A union and its members are vulnerable to the economic and business realities  
within which an employer operates. The continued viability of the employer is in the union’s, and  
its members’, interests. Although there will be debate about priorities and methods, it is not  
generally in a union’s interest to threaten the viability of the employer and, as a result, the  
livelihood of its members.  
[159] The consequence of decertification is the loss for employees of their collective strength.  
There is no equivalent for an employer. The closest comparison is a challenge, posed by another  
bargaining agent, to the existing bargaining agent in industries in which collective employer  
bargaining is a statutory requirement. The impact of interference, as between employees and  
employers, is asymmetrical. The Honourable George W. Adams sums it up this way:  
This is a product of the state’s reluctance to intervene in internal trade union affairs and  
the fact that the potential for trade union improprieties is not as great. In this latter respect,  
an employer occupies a far different position with regard to the coercive impact of its action  
upon employees than does a union.16  
[160] The origins and purpose of the prohibition against interference in internal affairs of a union  
are clear. Clause 6-62(1)(b) of the Act establishes an unfair labour practice for an employer, or  
any person acting on behalf of an employer, to discriminate respecting or interfere with the  
formation or administration of a labour organization or to contribute financial or other support to  
it. A related provision, clause 6-62(1)(c), establishes that bargaining collectively with a labour  
organization that is dominated by the employer is an unfair labour practice. Other, related  
16 George W. Adams, Canadian Labour Law, loose-leaf (3/2022 - Rel 1) 2nd ed (Toronto: Thomson Reuters, 2021),  
at 10-162 10-162.1 [Adams].  
33  
provisions include clause 6-62(1)(e) (refusal to permit a representative to negotiate); clause (i)  
(interference in selection of union); and, clause (j) (espionage on employees, union members,  
and labour organizations). There are no similar prohibitions on a union.  
[161] In conclusion, there is no similar purpose that would justify “reading in” a mirror prohibition  
against a union interfering in the internal affairs of an employer.  
Duty of Good Faith:  
[162] Next, it is necessary to consider whether the respondents have breached the duty to  
bargain in good faith.  
[163] The duty to bargain in good faith applies to both the employer and the union:  
67 Every union and employer shall, in good faith, engage in collective bargaining in the  
time and in the manner required pursuant to this Part or by an order of the board.  
[164] “Collective bargaining” is defined at clause 6-1(1)(e):  
(e) “collective bargaining” means:  
(i) negotiating in good faith with a view to the conclusion of a collective agreement  
or its renewal or revision;  
(ii) putting the terms of an agreement in writing if those terms were arrived at in  
negotiations or are required to be inserted into a collective agreement by this Part;  
(iii) executing a collective agreement by or on behalf of the parties; and  
(iv) negotiating from time to time the settlement of disputes and grievances of  
employees covered by a collective agreement or represented by a union;  
[165] The duty extends to the negotiating in good faith with a view to the conclusion of a  
collective of a collective agreement, or in this case, its renewal, putting the terms in writing, and  
executing a collective agreement.  
[166] A helpful summary of the principles underlying the duty is provided in Health Services:  
99 Consistent with this, the Canada Labour Code and legislation from all provinces impose  
on employers and unions the right and duty to bargain in good faith (see generally Adams,  
at pp. 10-91 and 10-92). The duty to bargain in good faith under labour codes is essentially  
procedural and does not dictate the content of any particular agreement achieved through  
collective bargaining. The duty to bargain is aimed at bringing the parties together to meet  
and discuss, but as illustrated by Senator Walsh, chairman of the Senate committee  
hearing on the Wagner Act, the general rule is that: “The bill does not go beyond the office  
34  
door.” (Remarks of Senator Walsh, 79 Cong. Rec. 7659; see F. Morin, J.-Y. Brière and D.  
Roux, Le droit de l’emploi au Québec (3rd ed. 2006), at pp. 1026-27.)  
100 A basic element of the duty to bargain in good faith is the obligation to actually meet  
and to commit time to the process (Carter et al., at p. 301). As explained by Adams:  
The failure to meet at all is, of course, a breach of the duty. A refusal to meet  
unless certain procedural preconditions are met is also a breach of the duty.  
...  
A failure to make the commitment of time and preparation required to attempt to  
conclude an agreement is a failure to make reasonable efforts. [pp.10-101 and 10-  
106]  
101 The parties have a duty to engage in meaningful dialogue and they must be willing to  
exchange and explain their positions. They must make a reasonable effort to arrive at an  
acceptable contract (Adams, at p. 10-107; Carrothers, Palmer and Rayner, at p. 453). As  
Cory J. said in Royal Oak Mines Inc. v. Canada (Labour Relations Board), 1996  
220 (SCC), [1996] 1 S.C.R. 369:  
In the context of the duty to bargain in good faith a commitment is required from  
each side to honestly strive to find a middle ground between their opposing  
interests. Both parties must approach the bargaining table with good intentions.  
[para. 41]  
102 Nevertheless, the efforts that must be invested to attain an agreement are not  
boundless. “[T]he parties may reach a point in the bargaining process where further  
discussions are no longer fruitful. Once such a point is reached, a breaking off of  
negotiations or the adoption of a ‘take it or leave it’ position is not likely to be regarded as  
a failure to bargain in good faith” (Carter et al., at p. 302).  
103 The duty to bargain in good faith does not impose on the parties an obligation to  
conclude a collective agreement, nor does it include a duty to accept any particular  
contractual provisions (Gagnon, LeBel and Verge, at pp. 499-500). Nor does the duty to  
bargain in good faith preclude hard bargaining. The parties are free to adopt a “tough  
position in the hope and expectation of being able to force the other side to agree to one’s  
terms” (Canadian Union of Public Employees v. Nova Scotia Labour Relations Board, 1983  
162 (SCC), [1983] 2 S.C.R. 311, at p. 341).  
104 In principle, the duty to bargain in good faith does not inquire into the nature of the  
proposals made in the course of collective bargaining; the content is left to the bargaining  
forces of the parties (Carter et al., at p. 300). However, when the examination of the  
content of the bargaining shows hostility from one party toward the collective bargaining  
process, this will constitute a breach of the duty to bargain in good faith. In some  
circumstances, even though a party is participating in the bargaining, that party’s proposals  
and positions may be “inflexible and intransigent to the point of endangering the very  
existence of collective bargaining” (Royal Oak Mines, at para. 46). This inflexible approach  
is often referred to as “surface bargaining”. This Court has explained the distinction  
between hard bargaining, which is legal, and surface bargaining, which is a breach of the  
duty to bargain in good faith:  
It is often difficult to determine whether a breach of the duty to bargain in good faith  
has been committed. Parties to collective bargaining rarely proclaim that their aim  
is to avoid reaching a collective agreement. The jurisprudence recognizes a crucial  
distinction between “hard bargaining” and “surface bargaining” ... Hard bargaining  
is not a violation of the duty to bargain in good faith. It is the adoption of a tough  
position in the hope and expectation of being able to force the other side to agree  
to one’s terms. Hard bargaining is not a violation of the duty because there is a  
35  
genuine intention to continue collective bargaining and to reach agreement. On the  
other hand, one is said to engage in “surface bargaining” when one pretends to  
want to reach agreement, but in reality has no intention of signing a collective  
agreement and hopes to destroy the collective bargaining relationship. It is the  
improper objectives which make surface bargaining a violation of the Act. The  
dividing line between hard bargaining and surface bargaining can be a fine one.  
(Canadian Union of Public Employees, at p. 341; see also Royal Oak Mines, at  
para. 46)  
105 Even though the employer participates in all steps of the bargaining process, if the  
nature of its proposals and positions is aimed at avoiding the conclusion of a collective  
agreement or at destroying the collective bargaining relationship, the duty to bargain in  
good faith will be breached: see Royal Oak Mines Inc. To the words of Senator Walsh,  
that collective bargaining does not go beyond the office door, we would add that, on  
occasion, courts are nevertheless allowed to look into what is going on in the room, to  
ensure that parties are bargaining in good faith.  
106 In Canada, unlike in the United States, the duty to bargain in good faith applies  
regardless of the subject matter of collective bargaining. Under Canadian labour law, all  
conditions of employment attract an obligation to bargain in good faith unless the subject  
matter is otherwise contrary to the law and could not legally be included in a collective  
agreement (Adams, at pp. 10-96 and 10-97; J.-P. Villaggi, “La convention collective et  
l’obligation de négocier de bonne foi: les leçons du droit du travail” (1996), 26 R.D.U.S.  
355, at pp. 360-61). However, the refusal to discuss an issue merely on the periphery of  
the negotiations does not necessarily breach the duty to bargain in good faith (Carter et  
al., at p. 302).  
[167] In Service Employees International Union (West) v Saskatchewan Association of Health  
Organizations, 2014 17405 (SK LRB) [SEIU (West) v SAHO], the Board described the  
power struggle that characterizes collective bargaining and the role of the Board in determining  
whether the conduct of a party crosses the line into bad faith bargaining:  
[128] Together, s. 11(1)(c) and s. 11(2)(c) impose companion obligation on both employers  
and trade unions in organized workplaces to bargain in good faith and to make reasonable  
effort to conclude a collective agreement. A secondary (but not less important) purpose of  
s. 11(1)(c) is to secure the union’s position as the exclusive bargaining agent for organized  
workers and to compel the employer to negotiate with the union (as opposed to directly  
with the employees) in good faith with a view to conclusion of a collective agreement.  
[129] While ss. 11(1)(c) and 11(2)(c) of The Trade Union Act clearly imposes a duty on the  
parties to bargain in good faith and makes it a violation of the Act to fail to do so, the  
practice of this Board in enforcing these obligations has historically been one of measured  
restraint. Simply put, the Board takes the position that it is not our role to supervise or  
monitor too closely the bargaining strategies adopted and employed by the parties provided  
that they genuinely engage in the process. This restraint has grown from the desire of the  
Board to permit the parties to define and develop their own collective bargaining relations  
and to avoid interference in the balance of economic power that may exist between the  
parties. See: Noranda Metal Industries Ltd. Canadian Association of Industrial, Mechanical  
and Allied Workers v. Noranda Metal Industries Limited, [1975] 1 Can. L.R.B.R. 145. See  
also: Saskatchewan Joint Board, Retail, Wholesale and Department Store Union v.  
Western Grocers, A Division of Westfair Foods, [1992] 4th Quarter Sask. Labour Rep. 83,  
LRB File No. 168-92.  
36  
[130] The reality of collective bargaining is that it is a process of resolving conflict through  
conflict. While The Trade Union Act may regulate that conflict, it also contemplates that a  
power struggle may well occur between employers and trade unions. The purpose of  
collective bargaining is to bring the parties together in a setting where they can present  
their proposals, justify their positions, and search for common ground. Although the parties  
may have expectations that particular proposals will be agreed to, or that certain kind of  
concessions will never by asked of them, or that issues will be discussed in a particular  
order, or that a particular result will be achieved within a certain period of time, there is no  
guarantee that such will be the case. Each party has the right to attempt to achieve an  
agreement on terms that it considers advantageous and to adopt strategies intended to  
advance its own self interests. The parties also have the right to hold firm in their respective  
positions. The results of collective bargaining flow from the skill of the negotiators, from the  
prevailing social and economic realities of the day, from the relative strength of the parties,  
and from their willingness to exercise their respective strength.  
[131] The function of this Board is to ensure that the parties engage in a process of  
collective bargaining; that they agree to meet; that they come to the bargaining table  
prepared to enter into a collective agreement and/or resolve the issues in dispute between  
the parties through collective bargaining; that their negotiators have authority to bind their  
principals; that they explain their proposals and disclose relevant and necessary  
information that could affect their collective bargaining relationship; and that they not  
misrepresent the facts or their proposals to the other party. See: Saskatchewan  
Government Employees’ Union v. Government of Saskatchewan and the Honourable Bob  
Mitchell, [1993] 1st Quarter Sask. Labour Rep. 261, LRB File No. 264-92. Simply put, it is  
the responsibility of the Board to ensure that the parties engage in a process of collective  
bargaining; it is not the function of this Board to ensure that a particular substantive result  
is achieved or avoided through collective bargaining.  
[132] The parties are best able to fashion the terms of their relationship and, in the event  
of impasse in collective bargaining, each has recourse to economic sanctions. Each round  
of collective bargaining is a new beginning and many external factors can influence the  
relative economic power (or perception thereof) of the parties. As a consequence, this  
Board does not judge the “reasonableness” of the proposals advanced by the parties at  
the bargaining table unless we conclude that the proposals being advanced or the positions  
being taken by a party are indicative of a desire to subvert, frustrate or avoid the collective  
bargaining process. While holding firm on proposals or hard bargaining is permissible,  
surface bargaining or merely going through the motions of collective bargaining without  
any real intention of concluding a collective agreement is not consistent with the duty to  
bargain in good faith. The difficulty of distinguishing “hard bargaining” from subversive  
behavior was acknowledged by this Board in Saskatchewan Government Employees’  
Union v. Government of Saskatchewan & Saskatchewan Association of Health  
Organizations, [1999] Sask. L.R.B.R. 307, LRB File No. 109-98 wherein the Board made  
the following comments:  
In mature bargaining relationships, such as this one, it is often difficult for the Board  
to discern if the bargaining behaviour falls within the realm of "tough, but fair" or if  
it crosses over into an unacceptable avoidance of collective bargaining  
responsibility. In Canadian Union of Public Employees v. Saskatchewan Health-  
Care Association, [1993] 2nd Quarter Sask . Labour Rep. 74, LRB File No. 006-  
93, the Board described this dilemma in the following terms, at 83:  
. . . when an allegation of an infraction under s.11(1)(c) is brought before  
us, the Board is faced with the somewhat delicate task of evaluating the  
bargaining process to determine whether there is any employer conduct  
which endangers or threatens to subvert that process, while at the same  
time, not intervening so heavy-handedly that the process ceases to reflect  
37  
the strength, aspirations and historical relationship of the parties  
themselves. The distinction between process and substance has a will-o'-  
the-wisp quality at the best of times, but this is particularly the case where  
a tribunal is trying to discern whether the conduct goes beyond the  
generous limits of the tolerable in collective bargaining, or whether it  
merely reflects a permissible exploitation of strength or skill by one party  
to gain advantage over the other.  
[168] In summary, the duty to bargain in good faith is primarily concerned with the process of  
collective bargaining as opposed to the substance of a particular agreement achieved through  
collective bargaining. The duty prohibits attempts by either party to avoid the conclusion of a  
collective agreement and to take actions directed at destroying the collective bargaining  
relationship. Neither hard bargaining nor a failure to make concessions, alone, amount to  
bargaining in bad faith.  
[169] Conduct away from the bargaining table, in appropriate circumstances, may breach the  
duty to bargain in good faith. For example, an employer’s unilateral change to the terms and  
conditions of employment or bargaining directly with employees may constitute bad faith  
bargaining. In both these circumstances, which are two of the most common examples of bad  
faith conduct away from the bargaining table, the law seeks to prohibit and discourage an  
employer from attempting to undermine the union as the exclusive bargaining agent on behalf of  
the employees.  
[170] The duty to bargain in good faith applies in the time and in the manner required pursuant  
to Part VI or by an order of the Board.17 In general, it is not an ongoing duty but, instead, is subject  
to temporal limits.18 Pursuant to section 6-26, the duty to bargain a renewal agreement is initiated  
following written notice within the period that is set out, which is referred to as the “open period”.  
[171] The general rule against mid-term bargaining may be relaxed if a dispute arises relating  
to an employee’s terms and conditions of employment, if the terms are included in the collective  
agreement: Saskatchewan Polytechnic Faculty Association v Saskatchewan Polytechnic, 2016  
58881 (SK LRB). This is because the duty extends to the settlement of disputes and  
grievances of employees covered by a collective agreement or represented by a union, as  
described in subclause 6-1(1)(e)(iv).  
17 Section 6-7 of the Act.  
18 George W. Adams, Canadian Labour Law, loose-leaf (6/2022 - Rel 2) 2nd ed (Toronto: Thomson Reuters, 2021),  
at 10-173.  
38  
[172] Otherwise, only in exceptional circumstances does a party have an obligation to bargain  
collectively during the term of a collective agreement. In Heartland Livestock Services, 2003  
62870 (SK LRB) [Heartland No. 1], the Board outlined those circumstances:  
[89] In certain cases a refusal to bargain may be a breach of an extant collective  
agreement, as where the agreement contains a provision for mid-term bargaining in certain  
circumstances. However, with few exceptions for example, negotiating for the settlement  
of disputes and grievances, failure to comply with which is a violation of s. 11(1)(c) of the  
Act, and pursuant to s. 43, the technological change provisions of the Act the Act does  
not expressly require an employer to bargain collectively with a certified union during the  
term of a collective agreement. Otherwise, under the Act, the parties are bound to bargain  
collectively only upon notice during the “open period” in the circumstances described in s.  
33(4) for the renewal or revision of the agreement, or in the case of a first collective  
agreement imposed by the Board, s. 26.5(9).  
[173] The reasoning in Heartland No. 1 has since been cited with approval by this Board: CUPE,  
Local 600-3 v Government of Saskatchewan, 2009 49649 (SK LRB); Saskatchewan  
Polytechnic Faculty Association v Saskatchewan Polytechnic, 2016 58881 (SK LRB). An  
application for reconsideration of the decision in Heartland was dismissed in Grain Services Union  
Canada v Saskatchewan Wheat Pool, Heartland Livestock Services (324007 Alberta Ltd.), 2003  
62871 (SK LRB) [Heartland No. 2].  
[174] Similar examples have been provided by the Honourable George W. Adams:  
…However, there may be an ongoing duty to consult and deal with a trade union where  
the employer has introduced a change of fundamental importance, particularly where the  
change and its impact were not contemplated by the parties on entering the agreement. It  
has been held that the duty to bargain in good faith applied to wage reopener negotiations;  
throughout a compulsory interest arbitration process; during a statutory alternate dispute  
resolution process; and to the requesting of a statutory final offer vote. In certain  
jurisdictions, technological change gives rise to a mid-term duty to bargain by virtue of  
statute.19  
Relevance of the Strike and Picket:  
[175] The Union argues that its activity is protected by the right to strike and the freedom of  
expression pursuant to sections 2(d) and 2(b) of the Charter, respectively, and sections 5 and 6  
of The Saskatchewan Human Rights Code. The Employer counters that the impugned activity  
does not fall within the definition of a strike or the protections provided by the right to strike or the  
freedom of expression.  
19 George W. Adams, Canadian Labour Law, loose-leaf (6/2022 - Rel 2) 2nd ed (Toronto: Thomson Reuters, 2021),  
at 10-173 10-174.  
39  
[176] Collective bargaining is by its nature a power struggle. This struggle is significantly  
enhanced during a strike or lockout. The Board’s role in assessing the parties’ conduct must be  
viewed within this context. As observed by the Board in Noranda Metal Industries Ltd., [1975] 1  
Can LRBR 145 (B.C.) [Noranda Metal], at 28:  
The question still remains of how searching a look the Board should take at specific  
incidents in the bargaining history. We believe it would be undesirable to go as far as was  
suggested by the Union in this case, to a point where any conduct the Board considered  
unfair and likely to disillusion the other side might be an unfair labour practice. …Collective  
bargaining is not a process carried on in accordance with the Marquess of Queensbury  
rules, and that is especially the case when a lengthy strike is going on. Archibald Cox has  
warned of the long-range consequences of too close scrutiny by the Board of the tactics of  
negotiators:  
'There is also danger that the regulation of collective bargaining procedures may  
cause negotiators to bargain with a view toward making the strongest record for  
NLRB scrutiny. The report of the Truitt negotiations bears ample evidence of the  
jockeying of lawyers. Hammering out a labour agreement requires all the  
negotiators' skill and attention. To divert them from the main task by putting a value  
on building up or defeating an unfair labour practice case diminishes the likelihood  
that the negotiations will be successful.'  
Accordingly, while we interpret Section 6 as requiring adherence to certain fundamental  
principles of [reasonable] bargaining procedure, we also consider that this Board must  
exercise considerable restraint in intervening in negotiations between parties who are  
committed to reaching a collective agreement.  
[177] This Board places a high value on free collective bargaining, especially between parties  
with an established and mature bargaining relationship.  
[178] As the Court recognized in Saskatchewan Federation of Labour v Saskatchewan, 2015  
SCC 4 (), [2015] 1 SCR 245 [Saskatchewan Federation of Labour], the strike has a “unique  
role in the collective bargaining process”.20 It has multiple functions. It is used primarily as an  
“economic tool” or a sanction on an employer.21 It permits workers “to refuse to work under  
imposed terms and conditions”, thereby affirming “the dignity and autonomy of employees in their  
working lives”.22 By collectively withdrawing their labour, employees are able to negotiate with an  
employer “on a more equal footing”.23 And, it brings the “debate on the labour conditions with an  
employer into the public realm”:  
20 Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 (), [2015] 1 SCR 245 [Saskatchewan  
Federation of Labour, at para 77.  
21 SGEU v Government of Saskatchewan, Mamawetan Churchill River District Health Board, et al., [1999] Sask  
LRBR 307; Saskatchewan Federation of Labour, at paras 49-50.  
22 Saskatchewan Federation of Labour, at para 54.  
23 Ibid, para 57.  
40  
[58] Moreover, while the right to strike is best analyzed through the lens of freedom of  
association, expressive activity in the labour context is directly related to the Charter-  
protected right of workers to associate to further common workplace goals under s. 2(d) of  
the Charter: Fraser, at para. 38; Alberta (Information and Privacy Commissioner), at para.  
30. Strike action “bring[s the] debate on the labour conditions with an employer into the  
public realm”: Alberta (Information and Privacy Commissioner), at para. 28. Cory J.  
recognized this dynamic in United Nurses of Alberta v. Alberta (Attorney General), 1992  
99 (SCC), [1992] 1 S.C.R. 901:  
Often it is only by means of a strike that union members can publicize and  
emphasize the merits of their position as they see them with regard to the issues  
in dispute. It is essential that both the labour and management side be able to put  
forward their position so the public fully understands the issues and can determine  
which side is worthy of public support. Historically, to put forward their position,  
management has had far greater access to the media than have the unions. At  
times unions had no alternative but to take strike action and by means of peaceful  
picketing put forward their position to the public. This is often the situation today.  
[p. 916]  
[59] As Dickson C.J. observed, “[t]he very nature of a strike, and its raison d’être, is to  
influence an employer by joint action which would be ineffective if it were carried out by an  
individual” (Alberta Reference, at p. 371).  
[179] In summary, the purpose of a strike is to influence an employer through collective action,  
which actions may include persuading, engaging with, and using to one’s advantage the weight  
of public opinion.  
[180] Next, the scope of the guarantee of freedom of expression, pursuant to section 2(b), is  
broad but it is not absolute. It was initially found to include any activity conveying or attempting to  
convey meaning: Irwin Toy Ltd. v Quebec (Attorney General), 1989 87 (SCC), [1989] 1  
SCR 927 [Irwin Toy]. In Montréal (City) v 2952-1366 Québec Inc., 2005 SCC 62, [2005] 3 SCR  
141, at paragraphs 6085, the Court clarified that the location or method of the expression may  
remove it from the protection of section 2(b). Although some internal limits have developed over  
time, in most cases if limitations are to be found, they will be identified at the section 1 stage of  
the analysis.  
[181] Picketing involves expressive action. Picketing within the labour context has even been  
described as a “particularly crucial form of expression with strong historical roots”.24 It is “an  
essential tool in the economic arsenal of workers in the collective bargaining process”: Unifor  
Canada Local 594 v Consumers’ Co-Operative Refineries Limited, 2021 SKCA 34 () at  
para 55 [Unifor v CCRL]. Freedom of expression may assist in redressing the power imbalance  
between employers and employees.25  
24 Alberta IPC at para 35.  
25 Pepsi at para 34.  
41  
[182] Freedom of expression includes a right to communicate the message (but also third-party  
rights not to listen).26 The “peaceful distribution of leaflets accurately setting out the position of  
employees involved in a labour dispute with their employer” is protected by the guarantee of  
freedom of expression.27  
[183] Expressive activity taken to support a labour dispute is also protected by the freedom of  
association guarantee pursuant to s. 2(d).28 As explained in SFL at paragraph 49, “expressive  
activity in the labour context is directly related to the Charter-protected right of workers to  
associate to further common workplace goals under s. 2(d) of the Charter”.  
[184] Freedom of expression in a labour dispute brings issues into the public realm for debate.  
As acknowledged in Alberta IPC:  
[33] Finally, in the labour context, freedom of expression can enhance broader societal  
interests. As this Court found in Pepsi, the free flow of expression by unions and their  
members during a labour dispute plays an important role in bringing issues relating to  
labour conditions into the public arena for discussion and debate: paras. 34-35. As this  
Court emphasized in Pepsi, free expression provides "an avenue for unions to promote  
collective bargaining issues as public ones to be played out in civic society, rather than  
being confined to a narrow realm of individualized economic disputes": Michael MacNeil,  
"Unions and the Charter: The Supreme Court of Canada and Democratic Values" (2003),  
10 C.L.E.L.J. 3, at p. 24.  
[185] The weight of public opinion may “determine the outcome of the dispute”.29  
[186] As mentioned, freedom of expression is not absolute. It is acceptable for a union to exert  
public or economic pressure provided that the union’s activities are not tortious or criminal, or in  
other words, wrongful.30 The wrongful action approach is explained in Pepsi:  
[76] The wrongful action approach, by contrast, focuses on the character and effects of the  
activity, as opposed to its location. It gets at the heart of why picketing may be limited. As  
discussed, the umbrella of picketing covers a diverse range of behaviours, tactics and  
consequences that often have little to do with location. Where picketing occurs has little to  
do with whether it is peaceful and highly respectful of the rights of others on the one hand,  
or violent and disrespectful of the rights of others on the other hand. By focussing on the  
character and effect of expression rather than its location, the wrongful action approach  
offers a rational test for limiting picketing, not an arbitrary one.  
26 Unifor v CCRL at para 108.  
27 KMart at para 1.  
28 SFL at para 58; Unifor v CCRL at para 49.  
29 KMart at para 46.  
30 Pepsi at paras 101-7.  
42  
[77] Picketing which breaches the criminal law or one of the specific torts like trespass,  
nuisance, intimidation, defamation or misrepresentation, will be impermissible, regardless  
of where it occurs.  
[187] Furthermore, the Honourable George W. Adams explains that, where challenged pursuant  
to section 2(b), statutory restrictions on expression have been found not to breach section 2(b) or  
have been found to be justified pursuant to section 1.31  
[188] In Saskatchewan, there are many examples of statutory restrictions on expression.  
Employer communications that undermine a union’s bargaining authority, including in cases of  
direct bargaining and cases involving vulnerable employees, will generally be found to be unfair  
labour practices. A union who persuades an employee to take part in a strike while a matter is  
pending before a labour relations officer appointed pursuant to Part VI commits an unfair labour  
practice.32 A union who declares a strike in the absence of a strike vote also commits an unfair  
labour practice.33  
[189] The expressive character of a party’s actions does not justify a failure to comply with the  
minimal degree of order in collective bargaining that is imposed by the Act.  
Guiding Questions:  
[190] In the current case, there was a duty on both parties to bargain in good faith the renewal  
of the collective agreement. The duty was continuous following the service of the notice to bargain  
and applied during the period of the strike.34  
[191] The question for the Board is whether the respondents’ actions went beyond the  
“generous limits of the tolerable in collective bargaining” or whether they constitute “a permissible  
exploitation of strength or skill by one party to gain advantage over the other”.  
[192] As disclosed by the foregoing case law, many of the usual concerns that arise in  
bargaining are not engaged by this case. This case does not involve a failure or refusal to meet,  
a refusal to meet unless procedural conditions are met, a failure to make a commitment of time,  
31 George W. Adams, Canadian Labour Law, loose-leaf (6/2022 - Rel 2) 2nd ed (Toronto: Thomson Reuters, 2021),  
at 3-205 3-216.1.  
32 Clause 6-63(1)(b) of the Act.  
33 Clause 6-63(1)(d). Other, perhaps less analogous, examples are those statutory restrictions on union expression  
that has the effect of interfering with Charter rights.  
34 See, for example, Royal Oak Mines Inc. v Canada (Labour Relations Board), 1996 220 (SCC), [1996] 1  
SCR 369.  
43  
or a failure to exchange and explain proposals. Nor does this case involve surface bargaining or  
attempts to avoid the conclusion of a collective agreement.  
[193] As far as the Board is aware, there is no precedent for a decision involving circumstances  
quite like those that are currently before the Board.  
[194] Given the unique set of circumstances engaged by this case, it is necessary for the Board  
to apply the general principles to the facts as they have been found and to determine whether  
those facts are indicative of bad faith bargaining. From the established principles, the Board can  
identify three guiding questions with particular significance to this case:  
a. Whether the Union (and agent) was not honestly striving to find a middle ground  
in respect of the opposing interests;  
b. Whether the content of bargaining shows hostility by the Union (and agent) toward  
the collective bargaining process;  
c. Whether the nature of the Union’s actions (and those of the agent) were aimed at  
destroying the collective bargaining relationship.  
[195] What these questions have in common is a concern with the Union’s genuine commitment  
to the collective bargaining process and relationship. An affirmative answer to any of these  
questions will result in a finding of a breach.  
[196] For the reasons previously described, unfair labour practices designed to destroy the  
relationship, committed by a union, tend to have a different flavor than those committed by an  
employer. An employer might avoid reaching a collective agreement to “foster the union’s early  
demise”: Canadian Union of Public Employees v Labour Relations Board (N.S.) et al., 1983  
162 (SCC), [1983] 2 SCR 311. A union, on the other hand, might seek to impair its  
collective bargaining relationship so as to secure a better deal through an alternative to its current  
negotiating environment. It may, for example, impair the process of bargaining so as to position  
itself for a strike: Serco Facilities Management Inc., 2008 CIRB 426 (), or it may impair the  
process so as to position itself for a third-party process such as conciliation or arbitration.  
[197] While neither of these examples are attempts to avoid concluding a collective agreement,  
they may disclose hostility towards the bargaining process. This is not to suggest limitations on  
employees’ constitutional right to strike or their statutory right to engage in third-party processes,  
44  
but instead to say that each party must genuinely engage in bargaining in each stage in the  
process.  
[198] There are also occasions where a union may be motivated not to recognize an Employer’s  
bargaining agent. This will include situations in which there are perceived, albeit illegal,  
alternatives to the employer’s existing bargaining agent. For example, within the construction  
industry division, section 6-70 of the Act requires a union representing the unionized employees  
in a trade division to engage in collective bargaining with the representative employers’  
organization for the trade division. The Board has found that a failure to do so is an unfair labour  
practice: CLR Construction Labour Relations Association of Saskatchewan Inc. v International  
Association of Heat and Frost Insulators and Asbestos Workers, Local 119, 2016 30542  
(SK LRB) [CLR].  
Relevance of the Co-operative Context:  
[199] In deciding whether a party has engaged in bad faith bargaining, the Board should  
consider all the relevant circumstances, including “the totality of a collective bargaining  
relationship.”35 Significant among the circumstances in this case is the nature of the Employer’s  
business, being a co-operative that is organized and operated pursuant to The Co-op Act.  
[200] Co-operatives are formed by their members to fulfill particular purposes, must exist  
primarily for their members, and must operate according to the principle of one member, one vote.  
Members have extensive powers, including the power to enact, amend or repeal bylaws and to  
elect and remove directors. The powers of the directors are subject to the bylaws.  
[201] Unionized co-operatives are not new. For example, the original certification order for  
Federated Co-operatives Ltd. is dated May 11, 1949.36 That certification order replaced an  
existing certification order for Saskatchewan Federated Co-operatives Ltd. by Canadian Co-  
operatives Employees’ Union Local No. 2, made by the Board on May 13, 1946. The FCL, in one  
form or another, has been unionized in Saskatchewan for over 70 years.  
[202] There is an apparent tension, but also alignment, between the co-operative business  
model and the union movement. A member-owned co-operative, in which employees may be  
members, is one in which employees who are members have power related to the governance of  
the co-operative, including through the election and removal of directors. Although a union cannot  
35 Radio Shack, [1979] OLRB Rep December 1220, 1979 817 (ON LRB), at para 69.  
36 LRB File No. 005-48.  
45  
be dominated by an employer,37 a co-operative which is owned by its members, including its  
employee-members, can be unionized.  
[203] Employee-members cannot be required to choose between exercising the powers  
available pursuant to The Co-op Act and their constitutional right to collective bargaining.  
[204] Still, while both the co-operative model and the union movement can have the effect of  
increasing democracy in the workplace, their democratic objectives are different. The role of the  
union is to represent the employees in the bargaining unit; the co-operative’s purpose is to look  
out for the interests of its members, some of whom are employees. The practical reality is that,  
while most unions negotiate with an employer who is separate from the employees, a union in a  
co-operative setting negotiates with an employer, which is a separate entity, but is a collective of  
members, including employees. However, the legal reality is that an employer and a union are  
separate legal entities engaging in negotiations affecting the working lives of employees.  
Context of the Management Slate:  
[205] It is also relevant that the Employer, on this occasion and at previous AGMs, has endorsed  
candidates for the Board of Directors. Mr. Burke testified that senior management would make a  
recommendation to managers about the candidates. The recommendation would arise following  
management discussions which included back and forth between FCL and Saskatoon Co-op. The  
Employer’s practice was well-known, and its list of candidates was referred to as the  
“management slate”. At the AGM, there tended to be two main voting blocs consisting of the out-  
of-scope group and the in-scope group (including so-called Union “sympathizers”).  
[206] The Union has endorsed candidates in the past and since the 2019 AGM, including in  
2018 after the collective agreement had expired.  
Decision on Bad Faith Bargaining:  
[207] To begin, the Board will proceed on the basis that the Board of Directors is exercising an  
authority over management that has a direct impact on negotiations. The Board must proceed on  
the basis of the evidence that it has before it, and the evidence supports this premise.  
37 See, clause 6-1(1)(p) of the Act.  
46  
[208] Next, the Employer and the Union are separate legal entities with a duty to engage in good  
faith bargaining. The fact that their bargaining relationship resides within a co-operative business  
model does not diminish these duties.  
[209] The existence of a statutory process does not necessarily prevent a person’s activities in  
relying on that process from being found to be an unfair labour practice. By way of analogy, when  
a party impairs the process of bargaining so as to position itself for a strike or a third-party process,  
as provided by the Act, they may be found to have been bargaining in bad faith. In the current  
case, while the Co-op members have significant powers in relation to the governance of the  
business, the Union and the Employer, both, must continue to uphold their duties in relation to  
collective bargaining.  
[210] The Union was not a mere bystander to events that occurred within the community. It was  
directly and centrally involved in both the petition and the election strategy. Even if the Union did  
not create the playbook, it helped to carry the ball down the field. Mr. Thebaud acted as an agent  
in carrying out the petition strategy. The election strategy, including the focus on the second tier,  
and the Union’s involvement in that strategy, crystallized before the conclusion of the collective  
agreement. Both strategies were intended to influence the course of the existing negotiations.  
The possibility of a pre-AGM end to negotiations does not change that fact.  
[211] The Board has concluded that the respondents have breached sections 6-7 and 6-63(1)(c)  
of the Act. In so concluding, the Board has found that the respondents, and particularly the Union,  
were engaged in a course of conduct designed to replace the directors during the strike and prior  
to the conclusion of the collective agreement.  
[212] It is clear that the respondents did not accept what they perceived to be the direction or  
the guidance coming from the Board of Directors. In pursuing the petition and election strategies,  
they sought to change that direction from within. They sought to circumvent the collective  
bargaining process so as to secure a better deal through an alternative to the available negotiating  
environment. Their sole motivation in promoting the petition and endorsing the director candidates  
was to change the composition of the Board of Directors to influence collective bargaining,  
whether in the immediate rounds or in a future negotiation.  
[213] The respondents were not genuinely striving to seek a middle ground between the parties’  
opposing interests. The fact that the parties eventually achieved a compromise does not change  
47  
their pre-agreement conduct. The respondents’ strategies, while not altogether successful,  
demonstrated hostility toward the collective bargaining process.  
[214] On the issue of expression, the strategies went beyond bringing the debate on labour  
conditions into the public realm. The intention was not merely to initiate debate, exert public  
pressure, or impose economic sanctions on the Employer. The intention was not merely to  
influence, or even compel, a change of direction in the Employer’s bargaining position – the  
intention was to directly change the Employer’s position. The respondents demonstrated a lack  
of respect for the free collective bargaining expected of two separate parties to the bargaining  
relationship.  
[215] On the other hand, given the evidence, it is likely that the election strategy was, at least in  
part, a response to the management practice and an attempt, as it was described, to “overcome  
the management slate”. By pointing this out, the Board is not sanctioning the respondents’  
actions. It is observing however, that, within a “one member, one vote” system, both parties to the  
bargaining relationship are attempting to influence the outcome of the director elections. The  
Employer, in its argument, concedes that “the Union backing candidates who might be aligned in  
philosophy is one thing”. To suggest that there is some practical way to completely isolate the  
influence exercised by either party from the outcome of any collective bargaining round is simply  
not realistic. The Employer and the Union have different interests and they represent those  
interests at the bargaining table. Whether the parties are seeking to replace the directors with  
new directors or to retain the existing directors, they are still acting in alignment with their own  
interests.  
[216] However, it is helpful to consider the respondents’ actions alongside those of  
management. The evidence before the Board is that management made recommendations to  
managers about candidates for the Board of Directors. The Union also endorsed candidates to  
the employees who belonged to the bargaining unit. In addition to this, the respondents promoted  
a petition to call a special meeting mid-strike and engaged the Co-op members in doing so. The  
Union encouraged new members to sign up and offered them a rebate on their membership fees.  
It promoted the extensive, related petition and election strategies during the open period of  
collective bargaining for a renewal agreement with the intention of changing the Employer’s  
bargaining position on a key issue.  
[217] It is important to understand, however, that the value of these latter observations (public  
involvement, new members, timing, extensive strategies) as comparisons is limited to what  
48  
evidence came before the Board, and that evidence focused on the respondents’ actions. The  
Board makes these comments to ensure that the parties are aware that this decision is grounded  
in the facts that were before the Board.  
[218] Lastly, a co-operative is a unique business model formed by the members to fulfill  
particular purposes. It is not a local, provincial, or federal government. The Board wishes to be  
very clear that its findings should not be generalized to seek to abridge a union’s rights in those  
other contexts.  
Decision on Sections 6-41 and 6-63(1)(h):  
[219] The next question is whether there was a breach of sections 6-41 and 6-63(1)(h) of the  
Act. The combined effect of these provisions is that, if a person who is bound by a collective  
agreement fails to do everything the person is required to do or does anything the person is  
required to refrain from doing, there has been a contravention of Part VI, and a contravention of  
a provision of Part VI that is imposed on or applicable to a union or employee is an unfair labour  
practice. In the vernacular, if a union that is a party to a collective agreement breaches the  
collective agreement, the union has committed an unfair labour practice.  
[220] The Employer suggests that the Union is bound by the two-tier structure, that it strategized  
to accomplish the election of directors who opposed that structure, and that, in doing so, it  
intended that the newly constituted Board of Directors would then proceed to reopen the collective  
agreement in the middle of the term so as to eliminate the second tier from the recently concluded  
existing agreement. Had the Union been successful, the reopener negotiations would appear to  
have been voluntary but would, in fact, have been orchestrated by the Union. This may seem like  
a tortured argument, but it is easier to appreciate when one considers that, after the conclusion  
of the collective agreement the parties’ duty to bargain in good faith came to an end, and the  
Employer would have had no recourse for the conduct complained of, pursuant to clause 6-  
63(1)(c).  
[221] The Employer has not grounded its argument in the common law duty of good faith, which  
is a general organizing principle of contract law applicable to contractual performance, as per  
Bhasin v Hrynew, [2014] 3 SCR 494 (SCC), 2014 SCC 71 (); C.M. Callow Inc. v Zollinger,  
2020 SCC 45 (); Wastech Services Ltd. v Greater Vancouver Sewerage and Drainage  
District, 2021 SCC 7 (). Instead, the Employer has suggested that the principles of good  
49  
faith bargaining and interference in internal affairs should apply to these circumstances. For the  
reasons already outlined, neither of those duties or prohibitions apply.  
[222] Furthermore, the only way the Board could entertain the possibility of a breach is if the  
Union had intended through its actions to orchestrate a reopening of the collective agreement  
during the term of the agreement. Such a specific intention would be distinct from a general  
intention to influence the course of future sets of negotiations.  
[223] The Board does not discount the evidence that could be supportive of that finding, but it  
is rather scant, and the evidence as a whole is not sufficient to satisfy the burden of proof. To be  
sure, Ms. Chubb’s candidate profile suggests that she was hoping that, at least after the following  
election, the Board of Directors would be in a position to reopen the negotiations on the second  
tier. As well, there was a sense of urgency or excitement around the election of directors, for a  
three-year term, at the 2019 AGM. Assuming the collective agreement expired outside that  
timeframe, newly elected directors, during their first term, would have a direct influence over policy  
only during the collective agreement term. And, there is a statement on the Election Group’s  
urgent AGM notice insisting that the Board of Directors “intervene to end Co-op management’s  
assault on wages via the proposed ‘two-tier’ wage structure, today and forever.”  
[224] However, the whole of the evidence, including discussion at the Town Hall meetings, the  
aspirational nature of the resolutions, the references to “championing the resolutions”, and the  
remaining candidate profiles, discloses an overall strategy that included, beyond influencing  
current negotiations, a longer-term plan with the objective of creating sustainable cultural or  
systemic change within the Co-op. The evidence of these dual objectives is consistent and clear  
and is obvious throughout the materials. It demonstrates that the movement and the Union  
intended, in addition to influencing current negotiations, to shift the thinking at the Co-op and  
change the governance ethos, including by advocating for more education about co-operative  
values which would be led by the new directors.  
[225] Ms. Chubb was one endorsed candidate among others. The candidate profiles disclose  
different views on how to exercise their powers once installed. Other profiles expressed an  
opposition to the second tier but not an intention to seek to reopen negotiations over an existing  
agreement. One of those profiles states, “I will work hard to understand why we had to go this  
route, and what can be done to make sure things are fair going forward”. Another refers to the  
labour dispute as a symptom of a “broader malaise within the Co-op itself”. At the AGM, most of  
the candidate speeches were focused on longer term plans.  
50  
[226] The Election Group’s communications contain no other reference to reopening the  
collective agreement. They do refer to the elimination of the second tier and state that it should  
“never have been introduced”. These are neutral references, which could refer to eliminating the  
second tier from the workplace via future sets of negotiations. There is also the short and  
inaccurate statement calling for an end to the assault on wages “via the proposed ‘two-tier’ wage  
structure, today and forever”. This is certainly unhelpful language, but it also has a rhetorical flair,  
and lacks specificity about the means necessary to accomplish the ends.  
[227] By contrast, there is the more thoughtful and precise statement contained in an Election  
Group article, which congratulates the Union on achieving the bridge, communicates its “hope  
that the new agreement …turns out to be, in practice a fair and just settlement” and refers to future  
negotiations, stating, “we have no doubt that Co-op will be back in a few years, demanding more  
concessions. Unless the Co-op members and workers join together well in advance to stop it.”  
This statement discloses a future orientation, consistent with the balance of evidence from this  
timeframe.  
[228] Lastly, there are many, plausible explanations for the apparent urgency, including the  
momentum from the strike and the two-tier structure stoking fears about losing control of the Co-  
op’s culture.  
[229] In summary, the Board is not satisfied that the evidence discloses, on a balance of  
probabilities, that the Election Group’s objective was to reopen the agreement and that the Union  
supported that objective.  
[230] Furthermore, the relevant collective agreement is not before the Board. None of the parties  
have put it in evidence. Subsection 6-41(2), in describing the manner in which a person is bound  
by a collective agreement, states that said person “must, in accordance with the provisions of that  
collective agreement” [italics added] do everything the person is required to do and refrain from  
doing anything they are required to refrain from doing. This suggests that, assuming the matter is  
properly before the Board and not an arbitrator, the provisions of the collective agreement are  
central to a determination as to whether the person has breached it. The wording of certain  
provisions, such as reopener clauses or mutual assistance clauses, could, theoretically, have a  
bearing on the question. All of this is as an aside, however, given the absence of the requisite  
intention.  
51  
[231] Finally, one might suggest that, related to the internal interference argument is an  
argument that the Union violated its duty to bargain in good faith by attempting to influence future  
sets of negotiations. The Union’s duty to bargain in good faith applied in the time and in the  
manner required pursuant to Part VI. At the time that the duty came into effect, the Union was  
required to bargain in good faith in relation to the existing negotiations. It did not apply to future  
sets of negotiations.  
Conclusion and Remedy:  
[232] First, the Board will grant a declaration that the respondents have engaged in an unfair  
labour practice, pursuant to clause 6-63(1)(c) of the Act.  
[233] Second, the Board will not grant an order that the respondents “cease and refrain from  
coordinating with third party organizations, directly or indirectly, to subvert collective bargaining  
and/or interfere with Saskatoon Co-op’s governance structure”, as was requested by the  
Employer. The term “subvert” lacks legal precision and is unhelpful. Also, it does not properly  
reflect Mr. Thebaud’s role as agent. The reference to interference cannot be made given the  
Board’s conclusions on that issue. Instead, the Board will order the respondents to cease and  
refrain from coordinating with third party organizations, directly or indirectly, to contravene clause  
6-63(1)(c) of the Act.  
[234] Third, the Board will order that the Union make reasonable efforts to distribute a copy of  
these Reasons, and the accompanying Order, to all Saskatoon Co-op employees who are  
members of the bargaining unit.  
[235] Next, the Board will make some obiter comments. This is new territory. The circumstances  
before the Board are unique. The Board has taken longer than usual in issuing these Reasons.  
In doing so, it hopes to provide the parties with sufficient guidance to understand their obligations,  
within the constraints of the case before it. Given these constraints, it was not possible for the  
Board to comment on the extent of the parties’ obligations in all situations that might arise. If the  
parties wish to have the Board determine another, related dispute, they may consider bringing a  
reference to the Board, by consent, pursuant to section 6-110 of the Act. To be sure, this is not a  
comment on what form of said reference would be acceptable to the Board.  
[236] Finally, the Board thanks the parties for their oral and written submissions, which the Board  
has reviewed and found helpful. Although not all of them may have been mentioned in these  
Reasons, all were considered in making this decision.  
52  
[237] Board Member Maurice Werezak dissents from these Reasons for Decision. His written  
dissent will follow at a later date.  
DATED at Regina, Saskatchewan, this 15th day of August, 2022.  
LABOUR RELATIONS BOARD  
Barbara Mysko  
Vice-Chairperson  

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