Wal-Mart: The Ringing Sound of Silence

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.