[Click here for a second version of the report on the Wal-Mart case, with excerpts from the majority and minority judgments. Each version is accompanied by a link to the full text of the decision.]

While the majority declined to reverse an earlier Supreme Court ruling in the Place des Arts case (2004 SCC 2) – which held that permanent closing of a business because the employer does not want to deal with a union is not prohibited, even if the secondary effect of the closing is employee dismissal – it has in effect significantly narrowed that ruling by making it clear that:

(1) as a result of specific statutory language in the Quebec Labour Code, the law in Quebec differs from that in the rest of Canada, where a reverse onus typically applies to all cases of reprisal for union activity, including situations where a business is closed.

(2) even in Quebec, the closing of a business for anti-union reasons is not immunized from a finding that it constitutes an unfair labour practice, under sections 12 to 14 of the Quebec Labour Code, giving rise to remedies such as damages against the employer under section 119 of the Code, although in such cases it will be for the union to prove that the employer's motive in closing the business is tainted by anti-union animus.

The Majority's Reasons (Binnie, Charron, Deschamps, Fish, McLachlin, Rothstein)

The majority's ruling, authored by Justice Binnie, is based on the following:

(1) its interpretation of section 15 of the Quebec Labour Code, which refers to reinstatement in employment – language which, according to the majority, implies that there must be an ongoing business to which the employees can be reinstated;

(2) its analysis of section 17 of the Quebec Labour Code, characterizing the closing of a business as good and sufficient reason for employee dismissals, even though the closing was to avoid a union;

(3) a line of jurisprudence to that effect in Quebec, culminating in a ruling by the Quebec Labour Court in the City Buick case ([1981] T.T. 22), which was not reversed by the Quebec legislature in 2001 when it made a number of amendments to the province's Labour Code;

(4) the Supreme Court of Canada's decision in 2004 in the Place des Arts case, endorsing the ruling in City Buick.

The majority was not dissuaded from its conclusion by the fact that the Canadian Charter of Rights and Freedoms guarantees freedom of association, which protects the right of workers to collectively bargain; in its view, the Quebec Labour Code creates a balance between the rights of labour and the rights of management that respects freedom of association, which the Court should avoid upsetting by handing labour a "lopsided advantage." Nor was the majority dissuaded by the fact that the law in the rest of Canada is different; in the majority's view, in matters of labour relations, provinces are free to strike their own balance according to their varying circumstances and attitudes.

The Dissent (Abella, LeBel, Cromwell)

In a vigorous dissent, Justices Abella, LeBel and Cromwell state that the reverse onus under section 17 is "one of the most vaunted equity tools in modern labour law." In their opinion, the majority's suggestion that the full substantive and procedural benefits of ss. 15 to 19 are unavailable to provide a remedy in the case of a business closed for anti-union reasons "represents a marked and arbitrary departure from the philosophical underpinnings, objectives and general scope of the [Quebec] Labour Code."

The minority ruling, authored by Justice Abella, is based on its view that:

(1) section 15 of the Quebec Labour Code contains nothing that would indicate that it does not apply to a business that has closed, and the majority's determination of the legislative scheme by reference solely to the words "reinstate ... in his employment" introduces a highly restrictive approach to remedial legislation which has traditionally attracted a highly expansive one;

(2) the evidentiary difficulty experienced by employees in attempting to prove that an employer's conduct was motivated by anti-union animus supports the application of the reverse onus provision in section 17 of the Quebec Labour Code to all unfair labour practices including the closing of a business for anti-union reasons; disagreeing with the majority's comment that the reverse onus in section 17 offers a "lopsided advantage" to employees, Justice Abella responded that, given the excessive difficulties in trying to establish employer motive, it is in fact the procedural core of the Quebec legislature's scheme to protect employees from unfair labour practices;

(3) the City Buick case, decided by the Quebec Labour Court in 1981, amounted to a singular deviation from prior Quebec jurisprudence, as well as from jurisprudence elsewhere in Canada, including the 1980 decision of the Supreme Court in the Lafrance case ([1980] 1 S.C.R. 536). Moreover, the Quebec legislature in 2001, far from intending to endorse the City Buick decision, did not question the application of the general remedies in section 119 of the Quebec Labour Code to section 15 proceedings, and there is no language in sections 118 or 119 restricting their application in this way, and in particular no language referring to a distinction between a closed and an ongoing workplace;

(4) the Supreme Court of Canada's decision in Place des Arts was not controlling because City Buick was peripheral to the Court's analysis: Place des Arts affirmed City Buick only to the extent of confirming the proposition that employers have the right to close a business; nothing in Place des Arts suggested that section 15 cannot provide remedies to dismissed employees, or that the section 17 presumption is unavailable in the case of a business closing.

The minority pointed out that a comparative review of the jurisprudence demonstrates that labour boards across Canada have consistently refused to immunize employers who are inspired to close a business – and dismiss employees – by anti-union motives, and 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. In the minority's view, while provinces are entitled to strike their own legislative balance, the approach to business closings in Quebec did not emerge from a legislative choice, but from jurisprudence developed in the City Buick case, and perpetuated despite its inconsistency with Quebec's own labour jurisprudence and the text of the Labour Code itself. Even here, Justice Abella noted that the majority was prepared to acknowledge that City Buick ought no longer to stand as a precedent to foreclose access to scrutiny for anti-union animus, but only if the scrutiny takes place under sections 12 to 14 of the Labour Code, provisions traditionally used by unions, not employees, thereby preventing the scrutiny from being accompanied by the benefit of the reverse onus in section 17 of the Quebec Labour Code.

Repeatedly, the minority pointed to the inconsistency in the majority's reasons of extending the remedy of reinstatement, and the procedural advantage of the reverse onus provision, to employees dismissed for anti-union reasons by an ongoing business, while denying such a remedy to employees who experience the most drastic possible employer conduct, i.e. closing of the business, resulting in dismissal of the entire workforce. As Justice Abella stated: "It strikes me as oddly tautological to conclude that a business closing is a good enough reason for closing a business. The effect is to suggest that under the Labour Code, an employer's conduct can be scrutinized for anti-union motives if a single employee is dismissed, but not if all employees are dismissed. Closing a business can in fact be the most severe form of reprisal for union activity. To close a business in order to avoid a union is to dismiss employees because they have engaged in union activity."

Conclusion

Since the majority's ruling is based on specific wording in the Quebec Labour Code, it is likely that unions will press for amendments to the Code to bring that province into line with the rest of Canada, by making it clear that the closing of a business for anti-union reasons is subject to the same procedural provisions and remedies as any other employer unfair labour practice.

In this, unions will almost certainly emphasize that, unlike the rest of the Court, the three dissenting judges all had considerable experience and expertise in labour law prior to their appointment to the bench. Justice LeBel practised labour law for many years and is the author of one of the leading labour law texts in Quebec; Justice Abella was Chair of the Ontario Labour Relations Board; and Justice Cromwell was a labour arbitrator and Vice-Chair of the Nova Scotia Labour Relations Board.

Plourde v. Wal-Mart Canada Corp.
Justice Binnie, with Chief Justice McLachlin, and Justices Deschamps, Fish, Charron and Rothstein concurring
Justice Abella, with Justices LeBel and Cromwell, dissenting
November 27, 2009

Read the full text of the Supreme Court of Canada's decision in Plourde v. Wal-Mart Canada Corp.