Plourde v. Wal-Mart Canada Corp.

Plourde v. Wal-Mart Canada Corp.
Collection
Supreme Court Judgments
Date
2009-11-27
Neutral citation
2009 SCC 54
Report
[2009] 3 SCR 465
Case number
32342
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Deschamps, Marie; Fish, Morris J.; Abella, Rosalie Silberman; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Quebec
Subjects
Labour law
Notes
SCC Case Information: 32342
Decision Content
SUPREME COURT OF CANADA
Citation: Plourde v. Wal‑Mart Canada Corp., 2009 SCC 54, [2009] 3 S.C.R. 465
Date: 20091127
Docket: 32342
Between:
Gaétan Plourde
Appellant
and
Wal‑Mart Canada Corporation
Respondent
‑ and ‑
Commission des relations du travail, Alliance of Manufacturers & Exporters
Canada, also known as Canadian Manufacturers and Exporters,
Fédération des travailleurs du Québec (FTQ), Coalition of BC Businesses,
Canadian Chamber of Commerce, Canadian Civil Liberties Association,
Conseil du patronat du Québec and Canadian Labour Congress
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 65)
Dissenting Reasons:
(paras. 66 to 147)
Binnie J. (McLachlin C.J. and Deschamps, Fish, Charron and Rothstein JJ. concurring)
Abella J. (LeBel and Cromwell JJ. concurring)
______________________________
Plourde v. Wal‑Mart Canada Corp., 2009 SCC 54, [2009] 3 S.C.R. 465
Gaétan Plourde Appellant
v.
Wal‑Mart Canada Corporation Respondent
and
Commission des relations du travail,
Alliance of Manufacturers & Exporters Canada,
also known as Canadian Manufacturers & Exporters,
Fédération des travailleurs du Québec (FTQ),
Coalition of BC Businesses,
Canadian Chamber of Commerce,
Canadian Civil Liberties Association,
Conseil du patronat du Québec and
Canadian Labour Congress Interveners
Indexed as: Plourde v. Wal‑Mart Canada Corp.
Neutral citation: 2009 SCC 54.
File No.: 32342.
2009: January 21; 2009: November 27.
Present: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for quebec
Labour relations — Dismissal — Business closure — Remedies — Union certified to represent employees — Negotiations to conclude first collective agreement with employer unsuccessful — Employer announcing closure of business — Complaint by employee that loss of employment was due to union activities — Whether employees of closed business can bring their claim under ss. 15 to 17 of Quebec Labour Code and benefit from statutory presumption in s. 17 that they were dismissed because they exercised their collective bargaining rights — Whether definitive business closure still “good and sufficient reason” within meaning of s. 17 to justify dismissal — Labour Code, R.S.Q., c. C‑27, ss. 15 to 17.
In August 2004, the union to which P belongs was certified to represent the employees of Wal‑Mart in Jonquière. The Jonquière store was the first Wal‑Mart store to be unionized in North America. After several fruitless bargaining sessions, the union filed an application under the Quebec Labour Code to establish the provisions of a first collective agreement. On February 9, 2005, the Minister of Labour referred the dispute to arbitration and notified the parties of the referral. That same day, Wal‑Mart informed the employees of its decision to close the store. On April 29, 2005, P’s employment, along with that of approximately 190 other employees, was terminated. Many proceedings were initiated by the Wal‑Mart employees or their union arising out of the store’s closure, which was presented by the union merely as a step taken by Wal‑Mart in a larger employer strategy of hindrance, intimidation and union busting. In this case, P filed a complaint under ss. 15 to 17 of the Code and claimed to have lost his employment because of his union activities. He sought an order that he be reinstated in his job.
The Commission des relations du travail (“CRT”) held that P could rely on the presumption under s. 17, since he had engaged in numerous significant union activities that were concomitant with the termination of his employment. However, the CRT found that Wal‑Mart had shown the store’s closure to be genuine and permanent and that in itself, according to a long line of cases from City Buick onwards, is “good and sufficient reason” within the meaning of s. 17 to justify the dismissal. The Superior Court dismissed P’s application for judicial review and held that the CRT was correct in not requiring Wal‑Mart to prove its reasons for closing the store. The Court of Appeal dismissed P’s motion for leave to appeal. All tribunals rejected P’s argument that the traditional case law should be disregarded in favour of the freedom of association.
Held (LeBel, Abella and Cromwell JJ. dissenting): The appeal should be dismissed.
Per McLachlin C.J. and Binnie, Deschamps, Fish, Charron and Rothstein JJ.: The question raised by this appeal is not whether employees have a remedy against an employer who closes a workplace for anti‑union motives (they do have such a remedy under ss. 12 to 14 of the Code) but whether employees of a closed business can bring their claim within ss. 15 to 17 so as to obtain the considerable advantage of a statutory presumption that they lost their jobs because they exercised their collective bargaining rights. Under ss. 15 to 17, the question before the tribunal relates to the reasons for the employees’ loss of jobs whereas the question that can be put in play under ss. 12 to 14 is the broader issue of why the plant was closed at all, and specifically was it closed as part of an anti‑union strategy. A finding of an unfair labour practice under ss. 12 to 14 opens up broader redress under the general remedial provisions provided by ss. 118 and 119 of the Code for the benefit of all employees who suffered as a result of the wrongful store closure, including those who where not involved in union activity, and even for those who opposed the union. [11‑12]
This Court in Place des Arts endorsed the view that no legislation in Quebec obliges an employer to remain in business and that an employer can close a plant for “socially reprehensible considerations”. While the effect of Place des Arts is to exclude in a workplace closure situation the application of s. 17, that case does not stand for the more sweeping proposition that closure immunizes an employer from any financial consequences for associated unfair labour practices. Nor does it preclude a finding that the closure itself constitutes an unfair labour practice aimed at hindering the union or the employees from exercising rights under the Code. It is open to a union or employees to bring evidence of anti‑union conduct to establish an unfair labour practice under ss. 12 to 14 of the Code. [8] [10] [54]
In the result, the procedural vehicle offered by ss. 15 to 17 of the Labour Code is not available to an employee in circumstances where a workplace no longer exists. The s. 15 reinstatement remedy presupposes the existence of a place to which reinstatement is possible. The City Buick doctrine that a definitive workplace closure constitutes “good and sufficient reason” for the purposes of s. 17 has been followed consistently and was not overruled by the legislature when extensive amendments were made to the Code in 2001. The reference in s. 15 to an order to “reinstate such employee in his employment” signals unambiguously the legislative contemplation of an ongoing place of employment as the foundation of a successful s. 15 application. This limited role for s. 15 is consistent with the text and purpose of ss. 15 to 17. [4] [13] [35‑36] [47] [50]
Section 15 provides a summary remedy backed by a presumption against the employer. The legislature has specified in s. 15 the remedies available for its breach. Adding the generality of ss. 118 and 119 remedies to a s. 15 violation would give the s. 17 presumption an expanded effect beyond reinstatement and associated relief contemplated in the ss. 15 to 17 group of provisions for an illegal dismissal. Former employees of a closed workplace in search of general remedies would never be obliged to establish anti‑union misconduct because its existence would always be presumed in their favour as soon as they established that prior to the closure they had exercised “a right arising from this Code”. This would significantly alter the balance between employers and employees intended by the Quebec legislature. [39]
Nothing in this decision affects the full range of relief available from the CRT under ss. 15 to 19 in situations where the workplace continues in existence. The issue in this appeal is limited to the availability of the s. 17 presumption where the plaintiff seeks relief against what is alleged to be an illegal dismissal in a situation where the workplace has closed. The relief available when ss. 15 to 19 are properly invoked in the context of a lesser sanction has not been put in issue before us and the scope of this judgment is limited accordingly. [40]
This Court’s decision in Health Services, which recognized that the freedom of association protected by s. 2 (d) of the Canadian Charter of Rights and Freedoms includes a procedural right to collective bargaining, is of no assistance here. Section 3 of the Code guarantees the right of association to workers in Quebec and the legislature has crafted a balance between the rights of labour and the rights of management in a way that respects freedom of association. No argument was raised against the constitutionality of any provisions of the Code and the Constitution does not require that every provision, including s. 17, must be interpreted to favour the union and the employees. [7] [55-56]
Reference was made by the Canadian Labour Congress and other interveners to labour law and practice outside Quebec which they say take a somewhat different approach to this problem. However, in a federal state there is no requirement that provincial regulatory schemes must align themselves. It is apparent that some of the differences in the jurisprudence from province to province are a function of the statutory setting in which they are made. Labour relations practices in some of the other provinces should not dictate the outcome in Quebec, which in relation to the s. 17 presumption has been based for many years on a principle recently endorsed in Place des Arts. The CRT’s refusal to extend the s. 15 reinstatement remedy to a closed workplace is a reasonable interpretation of its constituent Act and this Court should not interfere with it. [58‑59] [61] [63]
Per LeBel, Abella and Cromwell JJ. (dissenting): A dismissal in the case of the closing of a business can be scrutinized for anti‑union animus under s. 15 to 19 of the Labour Code. To suggest otherwise represents a marked and arbitrary departure from the philosophical underpinnings, objectives and general scope of the Labour Code. [69] [76]
The implementation of the remedies under ss. 15 to 19, including the presumption in s. 17, represented one of the most significant reforms in modern labour law. Until 2001, ss. 12 to 14, which protect the union’s ability to establish, organize and administer its affairs without employer obstruction, were penal provisions and there was no possibility of a civil remedy such as reinstatement or compensation. Sections 15 to 19 were added to the Labour Code 50 years ago to provide access to civil remedies for anti‑union conduct by an employer, and to facilitate this access through a presumption levelling the evidentiary playing field between employers and employees. Once the employee shows that he or she is exercising a right under the Labour Code, s. 17 creates a legal presumption in his or her favour, shifting the burden to the employer to demonstrate that it had a “good and sufficient reason” to sanction the employee, that is, one that was not motivated by anti‑union animus. The presumption under s. 17 is at the procedural core of the legislature’s scheme to protect employees from unfair labour practices, and is one of labour law’s most vaunted equity tools for redressing the evidentiary advantage held by employers. [68] [84] [90] [122] [124]
As a result, two complementary remedial routes — penal consequences under ss. 12 to 14 and civil ones with the benefit of the presumption under ss. 15 to 19 — became available to allow employees to redress unlawful conduct on the part of the employer and to enforce their associational rights. Until 1981, the case law in Quebec had confirmed that an employer’s motives must always be assessed to determine whether anti‑union animus is involved in the decision to terminate someone’s employment. It is therefore inconsistent with both legislative and judicial history to hold that the most drastic possible employer conduct involving the termination of employment — the closing of a business — is a form of dismissal which is uniquely exempt from scrutiny for anti‑union animus. [92] [100‑101]
Yet, this was the impact of City Buick in 1981, which concluded that a closing is a “good and sufficient reason” which rebuts the presumption under s. 17. The effect of that case has been that under the Labour Code, an employer’s conduct has been immunized from scrutiny for anti‑union motives when a business has been closed. City Buick was a departure from what had been an undisputed approach requiring, in every context, an assessment of the “real and serious reason” for a dismissal, and ignored not only the consistent stream of Quebec jurisprudence on what constitutes a dismissal, but also the consistent jurisprudential confirmation that once an employee has been dismissed and demonstrated that he or she was exercising a right under the Labour Code, the burden shifts to the employer to demonstrate that the dismissal was not motivated by anti‑union animus. City Buick’s dramatic departure from the remedial approach and legislative objectives embodied in the Labour Code makes it unsustainable. Closing a business can in fact be the most severe form of reprisal for union activity. Since in all other complaints involving s. 15 the RT scrutinizes the motives of the employer for anti‑union animus, it is inconsistent with the intent of the Labour Code in general, and with the purpose of s. 15 in particular, to scrutinize only the authenticity of a closing, rather than the reasons behind it. Labour boards across Canada have consistently refused to immunize employers who are inspired to close a business — and dismiss employees — for anti‑union motives. Furthermore, they have consistently held that a decision that is tainted by anti‑union animus, whether a closing or any other action, is a violation of labour rights. [104] [107-110] [112] [114]
There is no philosophical, jurisprudential, or textual support for the idea that ss. 15 to 19, including the presumption in s. 17, apply only to dismissals in an ongoing workplace. Dismissed employees are entitled to have their dismissals scrutinized for anti‑union motives under ss. 15 to 19. There is no reason to deprive them of access to this same remedial scheme, including the wide remedial scope in ss. 118 and 119, when their dismissals result from an employer closing down the entire workplace. Though reinstatement is not a feasible remedy in a closed workplace, it is not the only remedy contemplated by s. 15, it is only the most expansive one possible to fulfill s. 15’s objectives. To suggest that ss. 15 to 19, including the remedies available under ss. 118 and 119, are only available to a dismissed employee in the case of an ongoing workplace, contradicts the consistent, historic and unequivocal confirmation that remedial statutes require a broad interpretation consistent with the purposes of the legislation, not a word‑by‑word parsing that drains the language of its remedial content. The better approach is to interpret the legislative scheme in a way that connects recognized rights to meaningful remedies. [69] [125‑126] [137]
Cases Cited
By Binnie J.
Applied: City Buick Pontiac (Montréal) Inc. v. Roy, [1981] T.T. 22; I.A.T.S.E., Stage Local 56 v. Société de la Place des Arts de Montréal, 2004 SCC 2, [2004] 1 S.C.R. 43; distinguished: Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; referred to: Boutin v. Wal‑Mart Canada inc., 2005 QCCRT 225, [2005] D.C.R.T.Q. no 225 (QL); Boutin v. Wal‑Mart Canada inc., 2005 QCCRT 269, [2005] D.C.R.T.Q. no 269 (QL); Pednault v. Compagnie Wal‑Mart du Canada, [2005] J.Q. no 16222 (QL), aff’d 2006 QCCA 666, [2006] R.J.Q. 1266; Travailleurs et travailleuses unis de l’alimentation et du commerce, section locale 503 v. Ménard, 2007 QCCS 5704, [2008] R.J.D.T. 138; Lafrance v. Commercial Photo Service Inc., [1980] 1 S.C.R. 536; Hilton Québec Ltée v. Labour Court, [1980] 1 S.C.R. 548; Asselin v. Lord, D.T.E. 85T‑193, SOQUIJ AZ‑85147041; Syndicat des travailleurs en communication, électronique, électricité, techniciens et salariés du Canada (C.T.C. — F.T.Q.) v. Schwartz, [1986] T.T. 165; Bourget v. Matériaux B.G.B. ltée, D.T.E. 95T‑1257, SOQUIJ AZ‑95147099; Syndicat des employés de la société chimique Laurentide Inc. v. Lambert, D.T.E. 85T‑523, SOQUIJ AZ‑85147077; Teamsters — Conférence des communications graphiques, section locale 555 M v. Joncas Postexperts inc., 2008 QCCRT 249, [2008] D.C.R.T.Q. no 249 (QL); Section locale 175 du Syndicat canadien des communications, de l’énergie et du papier (SCEP) v. Petro‑Canada, 2008 QCCRT 246, [2008] D.C.R.T.Q. no 246 (QL); Lagacé v. Laporte, [1983] T.T. 354; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Dar v. Manufacturier de bas Iris inc., [2000] R.J.D.T. 1632, motion for judicial review dismissed, Sup. Ct. Mtl., No. 500‑05‑061084‑008, January 12, 2001; Bélanger v. Hydro‑Québec, D.T.E. 86T‑86, SOQUIJ AZ‑86147016; Produits Coq d’Or Ltée v. Lévesque, [1984] T.T. 73; T.A.S. Communications v. Thériault, [1985] T.T. 271; Alltour Marketing Support Services Ltd. v. Perras, D.T.E. 83T‑855, SOQUIJ AZ‑83147158; Maresq et Brown Bovari (Canada) Ltd., [1963] R.D.T. 242; Industrielle (L’), Compagnie d’assurance sur la vie v. Nadeau, [1978] T.T. 175; Société des Hôtels Méridien Canada Ltée v. Tribunal du travail, 80 CLLC ¶ 14,026; Hilton Québec Ltée v. Tribunal du travail, C.A. Québec, No. 200‑09‑000312‑782, January 16, 1979; Caya v. 1641‑9749 Québec Inc., D.T.E. 85T‑242, SOQUIJ AZ‑85147051; Bérubé v. Groupe Samson Inc., D.T.E. 85T‑932, SOQUIJ AZ‑85147126; Ouellette v. Restaurants Scott Québec Ltée, D.T.E. 88T‑546, SOQUIJ AZ‑88147062; Entreprises Bérou inc. v. Arsenault, [1991] T.T. 312; Silva v. Centre hospitalier de l’Université de Montréal — Pavillon Notre‑Dame, 2007 QCCA 458, [2007] R.J.D.T. 363; St‑Hilaire v. Sûreté du Québec, 2003 QCCRT 559, [2003] D.C.R.T.Q. no 559 (QL); Jalbert v. Sobeys Québec, 2007 QCCRT 608, [2007] D.C.R.T.Q. no 608 (QL); Arsenault v. C & D Aerospace inc., 2006 QCCRT 654, [2006] D.C.R.T.Q. no 654 (QL); Crawford Transport Inc. and Teamsters, Local 879 (2006), 146 C.L.R.B.R. (2d) 234; Pegasus Express Inc. and Teamsters, Local 880 (2006), 140 C.L.R.B.R. (2d) 77; International Wallcoverings and Canadian Paperworkers Union (1983), 4 C.L.R.B.R. (N.S.) 289.
By Abella J. (dissenting)
City Buick Pontiac (Montréal) Inc. v. Roy, [1981] T.T. 22; Pednault v. Compagnie Wal‑Mart du Canada, [2005] J.Q. no 16222 (QL); Plourde v. Cie Wal‑Mart du Canada, 2006 QCCRT 159, [2006] D.C.R.T.Q. no 159 (QL); Travailleurs et travailleuses unis de l’alimentation et du commerce, section locale 503 v. Ménard, 2007 QCCS 5704, [2008] R.J.D.T. 138; Boutin v. Wal‑Mart Canada inc., 2005 QCCRT 269, [2005] D.C.R.T.Q. no 269 (QL); Bourgeois v. Compagnie Wal‑Mart du Canada, 2005 QCCRT 502, [2005] D.C.R.T.Q. no 502 (QL); Compagnie Wal‑Mart du Canada v. Commission des relations de travail, 2006 QCCS 3784, [2006] J.Q. no 6894 (QL), aff’d 2008 QCCA 236, [2008] J.Q. no 673 (QL) (sub nom. Compagnie Wal‑Mart du Canada v. Desbiens); Reference Re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460; Côté v. Compagnie F.W. Woolworth, [1978] R.L. 439; Syndicat canadien des communications, de l’énergie et du papier, section locale 194 v. Disque Améric Inc., [1996] T.T. 451; Gauthier v. Sobeys Inc. (numéro 650), [1995] T.T. 131; Industrielle (L’), Compagnie d’assurance sur la vie v. Nadeau, [1978] T.T. 175; United Last Co. v. Tribunal du travail, [1973] R.D.T. 423; Syndicat des salariés de distribution de produits pharmaceutiques (F.I.S.A.) v. Médis, Services pharmaceutiques et de santé inc., [2000] R.J.D.T. 943; Maresq et Brown Bovari (Canada) Ltd., [1963] R.D.T. 242; Distinctive Leather Goods Ltd. v. Dubois, [1976] C.A. 648; Lafrance v. Commercial Photo Service Inc., [1980] 1 S.C.R. 536; Société des Hôtels Méridien Canada Ltée v. Tribunal du travail, 80 CLLC ¶ 14,026; Hôpital Notre‑Dame v. Chabot, D.T.E. 85T‑258, SOQUIJ AZ‑85147054; Silva v. Centre hospitalier de l’Université de Montréal — Pavillon Notre-Dame, 2007 QCCA 458, [2007] R.J.D.T. 363; Textile Workers Union of America v. Darlington Manufacturing Co., 380 U.S. 263 (1965); Retail Clerks’ International Union and National Bank of Canada (1981), 42 di 352; J.D. Irving Ltd. and C.E.P. (2003), 94 C.L.R.B.R. (2d) 105; Central Web Offset Ltd. and C.E.P., Local 255G (2008), 155 C.L.R.B.R. (2d) 113; Hunt Manufacturing Ltd. and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local No. 170, [1993] B.C.L.R.B.D. No. 291 (QL); EF International Language Schools Inc. (Re), [1997] B.C.L.R.B.D. No. 203 (QL); 874352 Ont. Ltd. (Comox District Free Press) and G.C.I.U., Local 525 M (1995), 26 C.L.R.B.R. (2d) 209; Retail, Wholesale and Department Store Union, Local 454 v. Westfair Foods Ltd., [1993] S.L.R.B.D. No. 2 (QL); Academy of Medicine, [1977] O.L.R.B. Rep. 783; Westinghouse Canada Ltd., [1980] O.L.R.B. Rep. 577, application for judicial review dismissed, 80 CLLC ¶ 14,062; Humber College of Applied Arts and Technology, [1979] O.L.R.B. Rep. 520; Doral Construction Ltd., [1980] O.L.R.B. Rep. 693; I.A.T.S.E., Stage Local 56 v. Société de la Place des Arts de Montréal, 2004 SCC 2, [2004] 1 S.C.R. 43; Houde v. Université Concordia, 2007 QCCRT 454, [2007] D.C.R.T.Q. no 454 (QL); Craig v. Université McGill (Office of Secretariat), 2007 QCCRT 278, [2007] D.C.R.T.Q. no 278 (QL); Dallaire v. Sûreté du Québec, 2007 QCCRT 74, [2007] D.C.R.T.Q. no 74 (QL); Desgagné v. Québec (Ministère de l’Emploi, de la Solidarité sociale et de la Famille), 2005 QCCRT 351, [2005] D.C.R.T.Q. no 351 (QL); Ouimet v. Solotech location inc., 2005 QCCRT 180, [2005] D.C.R.T.Q. no 180 (QL); Bazinet v. Commission scolaire de la Seigneurie‑des‑Mille‑Îles, 2004 QCCRT 606, [2004] D.C.R.T.Q. no 606 (QL); D’Amour v. Autobus Matanais inc., 2004 QCCRT 450, [2004] D.C.R.T.Q. no 450 (QL); Marcoux v. Thetford Mines (Ville), 2004 QCCRT 76, [2004] D.C.R.T.Q. no 76 (QL); Simard v. Québec (Ministère de la Sécurité publique), 2004 QCCRT 57, [2004] D.C.R.T.Q. no 57 (QL); Bédard v. Étalex inc., 2004 QCCRT 45, [2004] D.C.R.T.Q. no 45 (QL); Laramée v. Coop de taxi de Montréal, 2004 QCCRT 30, [2004] D.C.R.T.Q. no 30 (QL); Turcotte v. Montréal (Ville), 2003 QCCRT 545, [2003] D.C.R.T.Q. no 545 (QL); Turpin v. Collège d’enseignement général et professionnel de St‑Laurent (1988), 26 Q.A.C. 296; Cie Price Ltée v. Auclair, D.T.E. 88T‑688, SOQUIJ AZ‑88021372; Hôpital Royal Victoria v. Duceppe, [1984] T.T. 163; Alltour Marketing Support Services Ltd. v. Perras, D.T.E. 83T‑855, SOQUIJ AZ‑83147158; Produits Coq d’Or Ltée v. Lévesque, [1984] T.T. 73; T.A.S. Communications v. Thériault, [1985] T.T. 271; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; Syndicat des infirmières et infirmiers du Centre hospitalier de l’Archipel (FIIQ) v. Plante, [2003] J.Q. no 997 (QL); Immeubles Bona Ltée v. Labelle, [1995] R.D.J. 397; Québec (Gouvernement du) (Revenu Québec) v. Fortin, 2009 QCCRT 241, [2009] D.C.R.T.Q. no 241 (QL); Côté v. Corp. Dicom, [1987] T.A. 183.
Statutes and Regulations Cited
Act Respecting Labour Standards, R.S.Q., c. N‑1.1.
Act to amend the Labour Code, to establish the Commission des relations du travail and to amend other legislative provisions, S.Q. 2001, c. 26, s. 63.
Act to amend the Labour Relations Act, S.Q. 1959‑1960, c. 8.
Canadian Charter of Rights and Freedoms, s. 2 (d).
Charter of human rights and freedoms, R.S.Q., c. C‑12, s. 3.
Civil Code of Québec, S.Q. 1991, c. 64, art. 1590.
Interpretation Act, R.S.Q., c. I‑16, s. 41.
Labour Code, R.S.Q., c. C‑27, ss. 3, 12, 13, 14, 15, 16, 17, 19, 59, 114, 116, 118, 119, 143.
Labour Relations Act, S.Q. 1944, c. 30.
National Labor Relations Act, 49 Stat. 449.
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APPEAL from a judgment of the Quebec Court of Appeal (Rochon J.A.), 2007 QCCA 1210, [2007] J.Q. no 10678 (QL), 2007 CarswellQue 8612, dismissing an application for leave to appeal from a judgment of Corriveau J., 2007 QCCS 3165, [2007] J.Q. no 7019 (QL), 2007 CarswellQue 6548, dismissing an application for judicial review of a decision of the Commission des relations du travail, 2006 QCCRT 207, [2006] D.C.R.T.Q. no 207 (QL). Appeal dismissed, LeBel, Abella and Cromwell JJ. dissenting.
Bernard Philion, Claude Leblanc and Gilles Grenier, for the appellant.
Roy L. Heenan, Corrado De Stefano and Frédéric Massé, for the respondent.
Hélène Fréchette, Vanessa Deschênes and Lucie Tessier, for the intervener Commission des relations du travail.
George Avraam, Mark Mendl, Jeremy Hann and Kevin B. Coon, for the intervener the Alliance of Manufacturers & Exporters Canada.
Robert Laurin, for the intervener Fédération des travailleurs du Québec (FTQ).
Robin Elliot, for the intervener the Coalition of BC Businesses.
Guy Du Pont, for the intervener the Canadian Chamber of Commerce.
Andrew K. Lokan and Jean‑Claude Killey, for the intervener the Canadian Civil Liberties Association.
Manon Savard and Sébastien Beauregard, for the intervener Conseil du patronat du Québec.
Steven Barrett and Lise Leduc, for the intervener the Canadian Labour Congress.
The judgment of McLachlin C.J. and Binnie, Deschamps, Fish, Charron and Rothstein JJ. was delivered by
[1] Binnie J. — On April 29, 2005, Wal-Mart shut its store at Jonquière, in the Saguenay-Lac-St-Jean area of Quebec. The workers at this particular store had chosen to collectively bargain through their union, which had been certified by the Commission des relations du travail (“CRT”) on August 2, 2004. Thereafter negotiations to conclude a collective agreement were unsuccessful. On February 9, 2005, the Minister of Labour appointed an arbitrator to resolve the outstanding differences. On the same day, Wal-Mart announced closure of the store. On May 17, 2005, the appellant filed a complaint under s. 16 of the Labour Code, R.S.Q., c. C-27 (“Code”), claiming [translation] “I lost my employment because of the unionization of my establishment.” He sought an order that he be reinstated in his job. This could only occur if the store was ordered to be reopened. For the reasons that follow I believe the claim was rightly rejected and that the appeal should be dismissed.
I. Overview
[2] This proceeding is one of many initiated by the Wal-Mart employees or their union the United Food and Commercial Workers Union, Local 503, arising out of the closing of the Jonquière store, including other proceedings before the CRT invoking its general remedial powers under ss. 114, 118 and 119 of the Code (Boutin v. Wal-Mart Canada inc., 2005 QCCRT 225, [2005] D.C.R.T.Q. no 225 (QL); 2005 QCCRT 269, [2005] D.C.R.T.Q. no 269 (QL)), and proceedings for judicial review related thereto, as well as a class action (Pednault v. Compagnie Wal-Mart du Canada, [2005] J.Q. no 16222 (QL) (Sup. Ct.)). The Jonquière store was the first Wal-Mart store to be unionized in North America, and the Pednault Statement of Claim included the allegations that the store closure was intended to intimidate employees [translation] “of any other Wal-Mart store who have engaged in or are considering engaging in unionization activities” and “to frustrate attempts to unionize this store and any similar applications in any other store” (2006 QCCA 666, [2006] R.J.Q. 1266, at paras. 9-10). The class action was eventually dismissed on the basis that the subject matter of the dispute lay more appropriately within the jurisdiction of the CRT rather than the courts. In addition, the union launched a grievance against Wal-Mart under s. 59 of the Code alleging, amongst other things, that Wal-Mart [translation] “also encouraged, fomented and fostered rumours that the Wal-Marts in St-Hyacinthe and Brossard would soon be closing” (Travailleurs et travailleuses unis de l’alimentation et du commerce, section locale 503 v. Ménard, 2007 QCCS 5704, [2008] R.J.D.T. 138, at para. 3). In other words, the Jonquière closing was presented by the union merely as a step taken by Wal-Mart in a larger employer strategy of hindrance, intimidation and union busting.
[3] In this particular proceeding, Wal-Mart’s answer to the s. 16 complaint was that the appellant lost his job not because of union activity but because the store no longer existed and therefore no jobs were available. Abella J. argues that Wal-Mart’s response reflects Quebec case law that has wrongly “resulted in a blanket immunization from scrutiny for business closings, and has prevented both unions and employees from seeking any remedy for anti-union conduct when a business is closed” (para. 66 (emphasis added)). I do not agree that such an immunity exists. Even Wal-Mart did not claim that the closing of its Jonquière store was immunized from “scrutiny” or could serve to deny unions and employees “any remedy for anti-union conduct”.
[4] The issue before the Court, as I see it, is quite limited albeit it is an important one. It is a matter of procedure that has nothing to do with any general inquiry into Wal-Mart’s labour practices. The narrow issue is whether the procedural vehicle offered by ss. 15 to 17 of the Code is available to the appellant in circumstances where a store no longer exists. More specifically, the issue is whether an employee in such circumstances has the benefit of the presumption in s. 17 that the loss of jobs was a “sanction” imposed for an unlawful motive, namely union busting. With all due respect to those of a different opinion, my view is that the necessary foundation of a s. 15 order is the existence of an ongoing workplace. The appropriate remedy in a closure situation lies under ss. 12 to 14 of the Code (which were in fact invoked by Jonquière employees in the Boutin case mentioned earlier). Abella J. writes that:
I see no reason why the Commission cannot order [compensation] under ss. 15 and 119 of the Labour Code if it is satisfied that the closing was motivated by anti-union animus. [para. 146]
If my colleague were to substitute ss. 12 to 14 in place of s. 15 in her conclusion we would be in agreement.
[5] From the perspective of the appellant and his union, the major attraction of the procedure under ss. 15 to 17 is precisely the statutory presumption under s. 17 which provides that where the employer takes action against an employee who is exercising rights under the Code, the CRT must assume that the sanction was imposed or the action taken because of the exercise of such employee rights until the employer shows otherwise. The appellant argues that the workplace closure was such a “sanction” or “action” and the presumption therefore applies. Section 17 provides:
17. If it is shown to the satisfaction of the Commission that the employee exercised a right arising from this Code, there is a simple presumption in his favour that the sanction was imposed on him or the action was taken against him because he exercised such right, and the burden of proof is upon the employer that he resorted to the sanction or action against the employee for good and sufficient reason.
The onus is thus put on the employer (here Wal-Mart) to establish that the sanction or action against the complainant was taken “for good and sufficient reason” (s. 17) which in practice means a decision free of taint of anti-union activity. Wal‑Mart complains that it cannot logically be inferred from the fact of prior union activity that the closure of the Jonquière store was a “sanction or reprisal”.
[6] In electing the procedure under ss. 15 to 17, the appellant was confronted with a long line of cases in the Quebec courts and in this Court addressing reinstatement issues, including Lafrance v. Commercial Photo Service Inc., [1980] 1 S.C.R. 536, and Hilton Québec Ltée v. Labour Court, [1980] 1 S.C.R. 548. Subsequently, in City Buick Pontiac (Montréal) Inc. v. Roy, [1981] T.T. 22, the Quebec Labour Court held that a business closure itself is “good and sufficient reason” within the meaning of s. 17 to justify the dismissal [translation] “even if the closure is based on socially reprehensible considerations” (per Judge Lesage, at p. 26). The rationale is that the loss of employment is explained by the closure. Reinstatement in a closed workplace is not a feasible or appropriate remedy. The cause of the closure, on the other hand, is a distinct question that may be pursued under other provisions of the Code, as will be discussed.
[7] Counsel for Wal-Mart reminds us that City Buick was recently approved by our Court in I.A.T.S.E., Stage Local 56 v. Société de la Place des Arts de Montréal, 2004 SCC 2, [2004] 1 S.C.R. 43. The appellant, however, contends that this line of cases from City Buick onwards, should now be reconsidered because, he says, the constitutional scope of freedom of association has recently been broadened by this Court in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, and the provisions of the Code must now be re-interpreted in that light. For the reasons that follow I do not think that the Health Services decision is of any assistance here.
[8] The rule in Quebec that an employer can close a plant for “socially reprehensible considerations” does not however mean it can do so without adverse financial consequences, including potential compensation to the employees who have thereby suffered losses.
The Existence of Alternative Remedies
[9] City Buick, as quoted and affirmed by this Court in Place des Arts, spoke of “socially reprehensible considerations”. It did not offer an employer immunity under the Code for illegal conduct.
[10] It is open to a union or employees to bring evidence of anti-union conduct to establish an unfair labour practice under ss. 12 to 14 of the Code. The disadvantage from the employees’ point of view is that the s. 17 presumption is not available in an application under those provisions. A s. 12 claim that the employer committed an unfair labour practice is for the union or employees to establish, not for the employer to rebut.
[11] The bottom line in this appeal is therefore not whether employees have a remedy against an employer who closes a workplace for anti-union motives (they do have a remedy) but whether employees of a closed business can bring their claim within ss. 15 to 17 so as to obtain the considerable advantage of a statutory presumption that the dismissals were because the employees exercised their collective bargaining rights.
[12] The issue under ss. 12 to 14 is not the same issue as under ss. 15 to 17, although both procedures address the problem of anti-union activity. Under ss. 15 to 17, as interpreted by the CRT, the question before the tribunal relates to the reasons for the employee’s dismissal (to which the real and definitive closing of the workplace has been held to be a good and sufficient answer) whereas the question that can be put in play under ss. 12 to 14 is the broader issue of why the plant was closed at all, and specifically was it closed as part of an anti-union strategy. A finding of an unfair labour practice under ss. 12 to 14 opens up broader redress under the general remedial provisions of the Code for the benefit of all employees, including those who were not involved in union activity, and even for those who opposed the union, but who nevertheless suffered as a result of the wrongful store closure.
[13] All of this is not to underestimate the difficulty faced by the union or employees under ss. 12 to 14 in establishing that a particular closure was tainted by anti-union animus, although the minimal requirement of taint sets a relatively low threshold. On the other hand, the City Buick line of cases reflects the countervailing difficulty faced by employers in proving a closure to be free of taint in “mixed-motive” closures. The City Buick doctrine that a definitive workplace closure constitutes “good and sufficient reason” for the purposes of s. 17 (because no reinstatement is possible) is well understood and the Quebec legislature made no change during the major amendments of 2001, despite representations on the issue, as hereafter described. As will be seen, the relevant extracts from City Buick were incorporated into this Court’s judgment in Place des Arts, at para. 28, to which Gonthier J. added, for the Court, “I respectfully agree with Judge Lesage’s account.” It would be unfortunate, absent compelling circumstances, if the precedential value of a unanimous decision of this Court was thought to expire with the tenure of the particular panel of judges that decided it.
II. Facts Specific to This Appeal
[14] In August 2004, the union to which Mr. Plourde belongs was certified to represent the employees of Wal-Mart in Jonquière. After several fruitless bargaining sessions, the union filed an application under the Code to establish the provisions of a first collective agreement. On February 9, 2005, the Minister of Labour referred the dispute to arbitration and notified the parties of the referral. That same day, Wal-Mart informed the employees of its decision to close the store. On April 29, 2005, the appellant’s employment, along with that of approximately 190 other employees, was terminated