Quebec Labour Code, section 15:

Where an employer or a person acting for an employer or an employers' association dismisses, suspends or transfers an employee, practises discrimination or takes reprisals against him or imposes any other sanction upon him because the employee exercises a right arising from this Code, the Commission may

(a) order the employer or a person acting for an employer or an employers’ association to reinstate such employee in his employment, within eight days of the service of the decision, with all his rights and privileges, and to pay him as an indemnity the equivalent of the salary and other benefits of which he was deprived due to dismissal, suspension or transfer.

Quebec Labour Code, section 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.

Quebec Labour Code, section 14:

No employer nor any person acting for an employer or an employers’ association may refuse to employ any person because that person exercises a right arising from this Code, or endeavour by intimidation, discrimination or reprisals, threat of dismissal or other threat, or by the imposition of a sanction or by any other means, to compel an employee to refrain from or to cease exercising a right arising from this Code.

Quebec Labour Code, section 119:
Except with regard to an actual or apprehended strike, slowdown, concerted action, other than a strike or slowdown, or lock-out in a public service or in the public and parapublic sectors within the meaning of Chapter V.1, the Commission may also

(1) order a person, group of persons, association or group of associations to cease performing, not to perform or to perform an act in order to be in compliance with this Code;

(2) require any person to redress any act or remedy any omission made in contravention of a provision of this Code;

(3) order a person or group of persons, in light of the conduct of the parties, to apply the measures of redress it considers the most appropriate;

[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). ...

[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 re-instatement 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. Re-instatement 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.

[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.

[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.

[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 to14 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 an unanimous decision of this Court was thought to expire with the tenure of the particular panel of judges that decided it.

[35]       Sections 15 to 17 set out a remedy for any person who is dismissed, suspended, transferred, discriminated against or subjected to reprisals or other sanctions because of exercising rights under the Code. The remedy was added to the Code to address the deficiencies, from the employees' point of view, of the then penal provisions prohibiting anti-union conduct by employers. A successful prosecution under the previous law was cold comfort to employees who had lost their jobs. The reference in s.15 to an order to "reinstate such employee in his employment" (emphasis added) signals quite unambiguously the legislative contemplation of an ongoing place of employment as the foundation of a successful s.15 application, although clearly more than one employee may join in a complaint: Dar v. Manufacturier de bas Iris inc., [2000] R.J.D.T. 1632 (Lab. Ct.); motion for judicial review dismissed on January 12, 2001, Sup. Ct., Mtl, No. 500-05-061084-008.

[39]       Abella J. also contends that the general remedial powers under ss. 118 and 119 are available to the CRT on a s.15 application (paras. 140-141). I do not agree. 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 (and comprehensive) effect beyond the reinstatement and associated relief contemplated in the ss. 15 to 17 group of provisions for an illegal dismissal. Employees in search of general remedies would never have to establish anti-union misconduct. Its existence would always be presumed in their favour as soon as they established they had exercised "a right arising from this Code." This, in my view, would significantly alter the balance between employers and employees intended by the Quebec legislature. The better view, I believe, is that where employees seek relief under the general remedial provisions of the Code, their remedy lies under ss. 12 to 14, as already discussed.

[40]       On the other hand nothing in these reasons affects the full range of relief available from the CRT under ss. 15 to 19 in situations where the workplace continues in existence. In these situations, s.15(b) provides that the CRT may order the employer to cancel an illegal sanction. Where the illegal sanction falls short of dismissal, the issue of reinstatement does not arise and lesser remedies will be considered. I will say nothing further about "lesser remedies" because the issue in this appeal is limited to the availability of the s.17 presumption where the plaintiff seeks relief against an illegal dismissal. 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.

[46]       In Quebec (and elsewhere) the firing of a single employee often merits heightened scrutiny (e.g. the imposition of the reverse onus that requires an employer to prove that it has a good and sufficient reason for firing an employee who was at the time engaged in protected union-related activity) but in Quebec the CRT and the courts have not thought it appropriate to impose such a reverse onus in the case of the closure of an entire plant. The Quebec view is that the immediate reason the employees were dismissed is that their jobs no longer existed because of the closure. The reason for the closure is a more remote question which, it was held, is not to be determined on a s.15 application.

[50]       The appellant points out, rightly, that the employer is generally in a better position than the employees to demonstrate "the real reason" behind the workplace closure but the respondent also has a valid point that the legislator could reasonably adopt the policy that the simple existence of union activity prior to a closure should not, by itself, be sufficient to require the employer to open up its books to justify to the CRT's satisfaction that management's decision is untainted in any way by the union activity. The Quebec legislature saw fit not to modify the Code to overrule City Buick when extensive amendments were made to the Code in 2001. ...

[51]       As stated, the relevant dicta from City Buick was accepted as correct by this Court in Place des Arts. However, this case should not be read as broadly as Wal-Mart contends. The comments of Gonthier J. must be read in context. In that case the employer, after a protracted strike, decided to discontinue providing technical services to its tenants and other performers. Tenants and others were thereafter left to provide such technical services for themselves. The union complained under s.109.1(b) of the Code that Place des Arts was thereby "utilizing" the employees of other employers to do the job of the strikers. The union sought to enjoin the use of substitute workers. This Court took the view that the complaint and the proposed remedy contemplated the continued existence of an ongoing undertaking by the Place des Arts technical services group which on the evidence no longer existed. That was the ratio decidendi of the case. In that context resort was made to the City Buick line of cases. This Court endorsed the view that no legislation obliges an employer to remain in business. However, Gonthier J. did not suggest that the closure immunized the employer from any consequences or that there was no remedy anywhere under the Code to provide for compensation to the terminated employees, or other relief or remedy, on proof that the termination was for anti-union reasons.

[52]       I do not believe that Place des Arts should be read as holding that closure immunizes an employer from all financial consequences of related unfair labour practices. As the Canada Industrial Relations Board ("CIRB") suggested in Crawford Transport Inc. and Teamsters, Local 879 (2006), 146 C.L.R.B.R. (2d) 234:

It is important to keep in mind that the Supreme Court's analysis [in Place des Arts] was made in the context of whether there had been a violation, in light of the particular wording of a provision under Quebec's labour legislation prohibiting the use of replacement workers. . . . [t]hat decision, despite its confirmation of the right of enterprises to genuinely go out of business, does not stand for the proposition that there can never be a finding of a Code violation in the context where an employer subsequently discontinues or transforms its operations. [para. 90]

[54]       What, then, is the effect of Place des Arts? In my view, in affirming that "there is no legislation [in Quebec] to oblige an employer to remain in business" and that the "dismissals which follow are the result of ceasing operations," the effect of Place des Arts is to exclude in a workplace closure situation the application of s.17. This is because our Court adopted the proposition that the remedial order presupposed an ongoing business. In this situation, a workplace closure is a complete answer. However, Place des Arts does not stand for the more sweeping proposition that closure wipes the employer's record clean and immunizes it 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. The appropriate remedies for employees as well as the union simply exist elsewhere under the Code, and in particular under ss. 12 to 14 relating to unfair labour practices.

[55]       The appellant and interveners in his support argue that the foregoing jurisprudence should be modified in light of the decision in this Court in Health Services. In that case the Court recognized that the freedom of association protected by s.2(d) of the Canadian Charter includes a procedural right to collective bargaining. The majority formulated the constitutional proposition as follows:

The right to collective bargaining thus conceived is a limited right. . . . [T]he right is to a process, it does not guarantee a certain substantive or economic outcome. Moreover, the right is to a general process of collective bargaining, not to a particular model of labour relations, nor to a specific bargaining method. As P. A. Gall notes, it is impossible to predict with certainty that the present model of labour relations will necessarily prevail in 50 or even 20 years. . . . [Emphasis added; para. 91.]

[56]       The appellant's argument extends the reasoning in Health Services well beyond its natural limits. In that case the state was not only the legislator but the employer. Here the employer is a private corporation. Section 3 of the Code guarantees the right of association to workers in Quebec. Other provisions implement this general guarantee. 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 by the appellant or any of the interveners against the constitutionality of any provisions of the Code, or claimed that in its entirety the Code fails to respect freedom of association. The appellant says the interpretation of the Code should be developed to reflect "Charter values," but the entire Code is the embodiment and legislative vehicle to implement freedom of association in the Quebec workplace. The Code must be read as a whole. It cannot be correct that the Constitution requires that every provision, (including s.17), must be interpreted to favour the union and the employees.

[57]       Care must be taken not only to avoid upsetting the balance the legislature has struck in the Code taken as a whole, but not to hand to one side (labour) a lopsided advantage because employees bargain through their union (and can thereby invoke freedom of association) whereas employers, for the most part, bargain individually.

[61]       I do not believe that labour relations practices in some of the other provinces should dictate the outcome in Quebec, which in relation to the s.17 presumption has been based for many years on a principle recently endorsed by the unanimous decision of this Court in Place des Arts. While this Court holds itself free to depart from its own prior decisions for compelling reasons, no such compelling reasons of policy or law have been identified that were not evident to the Court, albeit differently constituted, that decided Place des Arts five years ago. A measure of judicial consistency is necessary to enable those working in the labour relations field in Quebec to know the rules they are operating under. We should properly put Place des Arts in context, as I have endeavoured to do, but I do not think any compelling reason has been shown to overturn its fundamental premise.

[62]       Abella J. claims that the foregoing interpretation represents "a marked and arbitrary departure from the philosophical underpinnings, objectives and general scope of the Labour Code" (para. 69). I do not accept this assertion as correct. The foregoing interpretation reflects the "philosophical underpinnings, objectives and general scope" of the Quebec Labour Code as endorsed in Place des Arts.

[69]       Depriving employees of their right to rely on access to the fullness of this remedial scheme for dismissals when a workplace closes, including the presumption, deprives them of these rights in situations when they are most needed. To suggest, as the majority does, 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 Labour Code. 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.

[76]       The legal issue before us is whether a dismissal resulting from the closing of a business can be scrutinized for anti-union animus. Since 1981, and based on City Buick, the only scrutiny permitted in Quebec under the Labour Code was as to the genuineness of the closing, regardless of the motive.

[78]       It is important to note that the issue is not whether an employer has the right to close a business, a proposition no one challenged before us, nor is it whether an employer can be required to open a business. It is whether a remedy should exist under ss. 15 to 19 when the motive for the closing is anti-union.

[100]     Lafrance did not involve the closing of a business, but its significance lies in its confirmation 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. (See Hôpital Notre-Dame v. Chabot, D.T.E. 85T-258, SOQUIJ AZ-85147054 (Lab. Ct.), and Silva v. Centre hospitalier de l'Université de Montréal, 2007 QCCA 458, [2007] R.J.D.T. 363.)

[101]     It would be inconsistent with this 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. And yet that is precisely the impact of City Buick, which was decided only a year following this Court's decision in Lafrance.

[107]     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.

[109]     City Buick was therefore a departure from what had been an undisputed approach requiring, in every context, an assessment of "the real and serious reason" for a dismissal. It adopted a new and dramatically narrower definition of a dismissal, resting on an artificial distinction between a dismissal when a business is closed and a dismissal in other circumstances. It is a distinction the majority seeks to retain.

[110]     Since in all other complaints involving s.15 the Commission 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. Interpreting ss. 15 and 17 differently in the case of the closing of a business has the effect of rendering those provisions mute in such circumstances, leaving employees uniquely without their traditional remedial access in only one labour relations context, arguably the most dramatic for employees.

[111]     As Professor Clyde Summers observed in his critical discussion of the U.S. Supreme Court's decision in Textile Workers Union of America v. Darlington Manufacturing Co., 380 U.S. 263 (1965) which concluded that an employer's decision to close does not constitute an unfair labour practice:

The mischief in the Court's reasoning is that it ignores the rights of those who have been discriminatorily discharged. The essence of the Court's logic is that discharge for supporting the union is not itself an unfair labor practice, that it is no wrong as to the ones discharged, and that the law is not concerned with their injury.

("Labour Law in the Supreme Court: 1964 Term" (1965-66), 75 Yale L.J. 59, at p. 67)

In other words, the closing is not only punitive for those employees who attempt to unionize, but also sends a general message that unionization is an endeavour that carries the risk of the loss of jobs for all employees in that workplace.

[112]     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 (Adams, at p. 10-9). Furthermore, labour boards 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. ...

[113]     In the view of the majority, the jurisprudence on the closing of a business in the rest of Canada is not relevant in Quebec, since it is up to each provincial legislature to decide on the proper balance between employer and employee rights. There is no doubt that provinces are entitled to strike their own legislative balance, but the current approach to business closings in Quebec did not emerge from a legislative construct, but from a jurisprudential one that was developed in City Buick and perpetuated notwithstanding its inconsistency with the interpretation of the Supreme Court in Lafrance a year earlier, with Quebec's own labour jurisprudence, and with the text of the Labour Code itself.

[114]     I see City Buick as a singular deviation from the prior Quebec jurisprudence and a sharp departure from the remedial approach and legislative objectives embodied in the Labour Code. All this, in my view, makes it unsustainable.

[119]     The majority is 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 ss. 12 to 14 of the Labour Code, provisions traditionally used by unions, not employees. This prevents the scrutiny from being accompanied by the benefit of the presumption. An invitation is accordingly being extended by the majority to employees to wander from their habitual statutory home in ss. 15 to 19 and take up temporary residence under ss. 12 to 14 when they want a business closing scrutinized.

[122]     The majority offers no reason for depriving employees of the benefit of the historic protection of the presumption for dismissals in the case of workplace closings other than its concern about the "lopsided advantage" it offers. This "lopsided advantage" is at the procedural core of the Quebec legislature's scheme to protect employees from unfair labour practices, as Judge Morin explained in Nadeau:

[TRANSLATION] Since the purpose of the 1959 amendment was to afford effective protection to employees, the legislature, believing that employees would encounter excessive difficulties in trying to prove that they were transferred, suspended or dismissed because of their union activities, wished to reverse the burden of proof and accordingly created the presumption provided for in section 16 [s. 17 of the present Labour Code] . . . . [p. 188]

[124]     The presumption under s.17 is one of the most vaunted equity tools in modern labour law and is, arguably, as conceptually and analytically significant for employees seeking protection from anti-union conduct as is the presumption of innocence in criminal law. Yet the majority's obvious discomfort with the presumption in s.17 has caused it to interpret the legislation in such a way that the presumption is unavailable to assist an employee who has been dismissed when a workplace closes.

[125]     With respect, there is no philosophical, jurisprudential, or textual support for the majority's idea that ss. 15 to 19, including the presumption in s.17, apply to dismissals only where there is an ongoing workplace. Legislative provisions such as those found in s.15 were for the express purpose of providing expanded civil remedies  –  including the procedural remedy of a presumption  –  for any conduct motivated by anti-union animus. 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 (Altour Marketing Support Services Ltd. v. Perras, D.T.E. 83T-855, SOQUIJ AZ-83147158 (Lab. Ct.); Produits Coqs d'Or Ltée v. Lévesque, [1984] T.T. 73; and T.A.S. Communications v. Thériault, [1985] T.T. 271).

[137]     The reality is that because City Buick had foreclosed any scrutiny of business closings for anti-union motives, there has, until now, been no need to consider what the appropriate remedy for a dismissal under such circumstances would be. This has created a jurisprudential vacuum. It seems to me to be unduly restrictive to build an approach to rights under the Labour Code on the foundation of a remedial vacuum. The majority's conclusion that ss. 15 and 17 do not apply in the case of a closing because they presuppose the existence of an "ongoing business" unduly restricts the expansive protection offered by these provisions. If a business is found to be closed for anti-union reasons, the fact that reinstatement is not a feasible remedy should not  –  and does not  –  cauterize access to a more feasible one. (See Verge, Trudeau and Vallée, at pp. 411-13.) Nor is there any justification for denying limiting the application of the presumption in s.17 in these situations. The interpretive analysis should be driven by the broad objectives of the legislation, not by a narrow and literal interpretation of the remedy. The better approach, it seems to me, is to interpret the legislative scheme in a way that connects recognized rights to meaningful remedies.

[140]     Based on its concern about the presumption in s.17, the majority also concludes that while a violation of ss. 12 to 14 allows the Commission to order a remedy under ss. 118 and 119, those remedial powers are unavailable to the Commission under ss. 15 to 19 in the case of a dismissal arising from a workplace closing. There is no language in either ss. 118 or 119 which restricts their application in this way, and, in particular, there is no language referring to a distinction between a closed and ongoing workplace. Denying dismissed employees access to the wide remedial protection offered by the 2001 reforms under s.15 in the case of business closings, is as anomalous as City Buick was in denying them access to having the reasons for the closing scrutinized.

[142]     The majority relies on a Hansard reference dealing with the 2001 reforms to support the argument that ss. 15 to 19 do not provide a remedy for the closing of a business. But, with respect, this evidence does not support the majority's distinction between the availability of remedies for employees under ss. 12 to 14 and under ss. 15 to 19. The Minister of Labour said that the Commission lacks the power to prevent a business from closing. This is in no way responsive to the issue of whether the general remedies in s.119 are available under s.15. Nor is it responsive to whether the legislature put its mind to the immunity from scrutiny in City Buick. The Minister's statement focused solely on the unavailability of a particular remedy under s.119(3): forcing a business to re-open. That question is not before us. What we are being asked to consider is not whether a business can be forced to reopen (no one submits that it can), but whether employees can scrutinize an employer's motives under ss. 15 and 17 when that business is closed.