Impact of Wal-Mart win limited to Quebec

The procedural issue that felled the employee’s argument in the Supreme Court of Canada’s decision in Plourde v. Wal-Mart Canada Corp. would not provide the same kind of coverage elsewhere in the country, because the specific provision in Quebec law is inconsistent with other provinces.

In writing the six-to-three majority decision, Justice Ian Binnie pointed out under s. 15 of the Quebec labour code, a place of employment must still exist in order for an employee to seek remedies for “union-busting” activities.

“The issue is whether an employee in such circumstances has the benefit of the presumption in s. 17 [of the Quebec Labour Code] 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.”

In Quebec, as in other provinces, there is a reverse onus provision whereby employers have to prove its actions do not amount to union busting.

However, in Quebec, according to the ruling, the place of employment still has to exist for the reverse onus provision to be enforced. Because the Wal-Mart store in question is no longer open, the argument is moot.

Binnie says the issue was “quite limited,” yet an important procedural matter “that has nothing to do with any general inquiry into Wal-Mart’s labour practices.”

The Jonquière, Que., location was the first Wal-Mart to unionize in North America. Arbitration was ordered to settle a collective bargaining dispute. On the same day, the company announced they were closing the store due to financial reasons.

Some of the 190 workers left unemployed by the closure challenged it in court, claiming Wal-Mart violated both the Charter of Rights and Freedoms and Quebec rights to organize.

Canadian Labour Congress president Ken Georgetti says the ruling has very little impact outside Quebec. In addition, he says, the decision will not deter Wal-Mart employees from attempting to unionize.

“We have always believed that Wal-Mart closed its store in Jonquière because its employees had voted to join a union,” he says. “But the Supreme Court of Canada has now ruled that under the Quebec labour code, the onus was on the workers to prove that the company closed the store for that reason.

“In other provinces and territories the onus would have been on the company to prove that was not the case.”

Labour and employment lawyer George Avraam says even though the decision is specific to Quebec, it will assist employers and legislators in the rest of Canada. The Baker & McKenzie LLP partner argued on behalf of  Canadian Manufacturers & Exporters, which had intervener status in the case.

He points to two results of the decision with the first being upholding Quebec law.

“The court’s decision doesn’t change the law in Quebec, they tweak it but it doesn’t fundamentally change the law,” says Avraam.

As a result, he says, “at least for Quebec employers you’ll have the benefit of certainty in the law.”

For the rest of Canada, Avraam says, the impact may be the issue was not a Charter issue.

“There is some very good analysis in the majority decision that says not every section of a statute which may not be favourable to employees and the unions is constitutionally suspect based on the right to association grounds,” he says.

Generally, labour groups argue before courts and tribunals that each part of a statute has to be interpreted as consistent with the right to association protection under the Charter, says Avraam.

“To be fair, what [the Supreme Court] is saying is, ‘Look if you want to challenge the statute because it violates the Charter then challenge the statute,’” he says.

This reinforces the argument Avraam made on behalf of his client that the court has to give legislators the latitude to come up with the right balance in creating labour laws. Not looking at specific sections, but rather to determine if the statute as a whole strikes the right balance.

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