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Of the 13 leave applications dismissed last Thursday, one was an appeal from Wal-Mart against a unionization effort in Gatineau in which Wal-Mart sought to restore a cancelled order for a secret ballot of the store employees. While this may not seem too noteworthy on its own, it is interesting that this is the fourth time that the Supreme Court of Canada ("SCC") refused Wal-Mart’s appeals in unionization endeavors at their stores.
In May 1998, the SCC refused a Wal-Mart appeal from an Ontario Labour Relations Board ruling that certified a union. More recently, in April 2005, the SCC dismissed Wal-Mart’s appeal of a Saskatchewan Labour Relations Board ("SLRB") ruling that ordered them to produce documents for the union. Two years later, in April 2007, a Wal-Mart-initiated claim of bias against the very same SLRB was also dismissed.
Since it is typical for the SCC not to give reasons for dismissing leaves to appeals, it is helpful to point out the criteria that the SCC bases these decisions on. From the SCC website, we’re told that
“Leave to appeal is given by the Court if … the case involves a question of public importance or if it raises an important issue of law”
This leaves me to wonder about the authority of a dismissed leave to appeal. While the general media would treat a dismissal of a leave to appeal as an affirmation of the responding party's position, this guiding sentence indicates that such is not necessarily true. Although the SCC may have refused leave because they agreed with the reasoning of a lower court, it is also entirely possible that they didn’t necessarily agree with the reasoning, but just thought the area of law was not important enough to warrant the SCC’s time.
Since Wal-Mart has now been refused leave to appeal four times, are we to assume that the court is pro-union for workers in a multi-national retail store? Without clear reasons, such a conclusion seems too much to infer; despite what may appear to be SCC’s consistent refusals of Wal-Mart’s attempts to exploit the system. Nevertheless, one wonders why the SCC hasn’t given clearer guidance on these matters, as it seems that such labour conflicts will continue to occur.
My view on this is that the SCC seems to be saving its institutional capital for more important and contentious issues. The topic of unionization seems to have a polarizing effect on the general public, and broad political implications. Any decision they make on such a case would undoubtedly alienate large parts of the population. It appears that the SCC is fully aware of the political climate they operate in, and thus are protecting their credibility, so as to avoid discussions like this in the general media.
2 Comments
I've never come across any express consideration of an SCC leave denial, but I think it is generally accepted that a denial of leave is not an affirmation of the lower court decision, and gives that decision no greater authority than it has in itself. I would think I was presuming too far if I represented an out-of-province decision as binding simply because leave was denied by the SCC.
If the dismissal of an application for leave to appeal allowed us to conclude that the SCC approved any portion of the lower court decision, we'd be concluding that the SCC has approved a slew of decisions asserting principles of law contradict what the SCC had said is the law. There's no doubt the SCC is still court of error; some may believe it’s consistently in error; it's just that that is not what court of error means.
Apart from that: R. v. Trang (2001), 300 A.R. 105 (Alta. Q.B.)
11 I agree with counsel that where leave to appeal has been refused by the Supreme Court of Canada, as in Cheung , it cannot be assumed that the ratio of the decision appealed is the law.
12 On the other hand, where leave has been granted, albeit not on all of the grounds for which leave was applied, there is a stronger inference that the Supreme Court of Canada did not take issue with the ground for which leave was denied.
And R. v. Santeramo (1976), 32 C.C.C. (2d) 35 (Ont. C.A.); leave to appeal allowed (1976), 32 C.C.C. (2d) 35n (S.C.C.) (CA said dismissal of appeal without reasons not to be taken as decision on points presented on appeal – it appears the SCC appeal was on the substantive issue.).
9 It is true that the conduct of the trial and the argument on appeal [in R. v Clemes] raised, inter alia, issues relevant to those in this case and that the appeal from conviction was dismissed by this court. However, there were no reasons for judgment delivered by this court and of course there were none delivered on the refusal of the application for leave to appeal to the Supreme Court of Canada. I do not think that we should assume that the higher court intended to determine these issues, nor do I think that we must necessarily accept that this court by dismissing the appeal resolved the issue I am here concerned with, particularly when one considers the evidence which was before the jury with respect to knowledge.