Wal-Mart Cases Will be Heard by the SCC
As I catch up on the labour and employment events that took place while I was away, I saw that the Supreme Court of Canada granted leave to appeal in two important decisions Plourde c. Compagnie Wal-Mart
du Canada inc. and Johanne Desbiens, et autres c. Compangnie Wal-Mart du
Canada Inc.. The history of these proceedings is lengthy and somewhat difficult to follow, though the issue that will be before the Supreme Court is quite narrow.
That said, the Labour Board ("Commission") decisions in Plourde and Desbiens (albeit under the name Boutin) came out back in 2006 and they arose out of complaints filed by unionized employees in the context of the closure of the store at which they worked located in Jonquiere, Quebec. The Commission had before it 79 complaints by employees at the Jonquiere store.
The crux of the issue is whether a store closure amounted to a breach of the Quebec Labour Code and specifically section 17 which provides as follows:
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. (Emphasis added)
In this case, as the Commission noted, there was no doubt that the complainants had shown that the "presumption" referenced in section 17 of the Code applied to them:
In Plourde's case, he had actively participated in the organization of the union including participating in meetings and obtaining membership support from other employees. Furthermore, he attended at and participated in all negotiation meetings as a member of the union's bargaining committee. All of this, the Commission held, took place at the time of the closure.
- In Desbiens case, she exercised rights under the Code throughout the relevant time including during the organizing drive where she solicited membership in the union and represented the union during bargaining and conciliation.
The question, in these cases, will be whether the closure was a "good and sufficient reason" to displace the presumption enjoyed by the complainants under section 17 of the Code.
While I suspect this will be an uphill battle for the employees one never knows.
The Supreme Court of Canada in Keays and Quebec Hydro (both decided last month) has shown a willingness to dive more deeply into the factual underpinnings of the cases and, in effect, "right the ship" if they believed that lower courts have "drifted off course" in the way in which their decisions were being applied (Wallace in the case of Keays and Meiorin in the case of Hydro Quebec). Further, the Supreme Court has held that certain associational activities are constitutionally protected (Health Services and Support – Facilities Subsector Bargaining Assn) and has revisited the standard of review (Dunsmuir v. New Brunswick) which has received considerable attention in subsequent labour decisions.
Back to the Walmart cases.
The Supreme Court of Canada in an earlier decision of I.A.T.S.E.,
Stage Local 56 v. Société de la Place des Arts de Montréal approved of the following comment by the Quebec Court in City Buick Pontiac
(Montréal) Inc. v. Roy where Judge Lesage commented:
[Translation] In our free enterprise system, there is no legislation to oblige an employer to remain in business and to regulate his subjective reasons in this respect . . . . If an employer, for whatever reason, decides as a result to actually close up shop, the dismissals which follow are the result of ceasing operations, which is a valid economic reason not to hire personnel, even if the cessation is based on socially reprehensible considerations. What is prohibited is to dismiss employees engaged in union activities, not to definitively close a business because one does not want to deal with a union or because a union cannot be broken, even if the secondary effect of this is employee dismissal. [Emphasis omitted.]
The Court also adopted the following comments of Justice Lesage:
It is certainly with the utmost strictness that the circumstances of the decision to close must be scrutinized in order to assess its true nature . . . . [Emphasis omitted.]
The Supreme Court in Place des Arts stated that:
Judge Lesage’s reasons in City Buick Pontiac, supra, at p. 26, make clear that an employer may decide to close up shop (translation) “for whatever reason . . . even if the cessation is based on socially reprehensible considerations”. The facts of City Buick Pontiac are instructive. There, the employer freely admitted that it was closing up shop because of its inability to negotiate a satisfactory agreement with its sales staff. Faced with this bald admission of the employer’s motive, Judge Lesage rightly held that it was not for the Labour Tribunal to sit in judgment of the employer’s reasons for shutting down but only to assure that the employer carried out that decision genuinely and did not merely engage in an elaborate sham to break the employees’ strike. Returning to the case at bar, the SPA claims it had been considering getting out of the technical services business for some time. That may be so, but it is strictly beside the point. Where an employer genuinely goes out of business, its motive for doing so is not subject to review under s. 109.1(b) of the Code.
The Commission relied upon these earlier cases in reaching its decision to dismiss the complaints.
What are the potential remedies for a breach of section 17.
Frankly, I'm not certain what remedies are available under the Quebec legislation. The Union appears to have asked as its primary remedy that the store be reopened (that's my translation of the following statement in one of the cases - "La Commission doit intervenir pour sanctionner le comportement anti-syndical de Wal-Mart et la réouverture de l’établissement de Jonquière s’impose.") Presumably, they were also asking for other broad remedies.
Recognizing that these cases arise under specific provincial legislation, if they were being decided under the Ontario Labour Relations Act, I would say that the Board has broad authority to remedy the breach where it finds that the closure was contrary to the Act (i.e. an unfair labour practice). There are some rare cases where the Board ordered production to be returned to a plant when operations have been closed for anti union reasons. Again, I'm uncertain as to the scope of available remedies under the Quebec legislation where a breach is found.
Again, these Wal-Mart cases may well provide the Supreme Court with an opportunity to revisit its earlier decision in Place des Arts and clarify it (and possibly distinguish it) in the factual context of these cases while further refining the Health Services and Support – Facilities Subsector Bargaining Assn. and Dunsmuir v. New Brunswick decisions.
Stay tuned - I suspect that the Court will hear these cases in the New Year. Workplace Prof Blog has a post mentioning the leave application.
