Congratulations to Wal-Mart Canada are in order: its decision to dismiss about 200 employees in Quebec who had the audacity to exercise their Charter-protected right to unionize survived a Supreme Court challenge! Another giant step forward for corporate Canada …
I described last year a case involving a decision of Wal-Mart Canada to close a store in Quebec and fire all of the employees after they joined a union and the union requested first contract arbitration. Friday, the Supreme Court of Canada ruled in favor of Wal-Mart. There are two decisions involving two different complainants, but the lead decision is Plourde v. Wal-Mart, which you can find here. Here is a story from the Globe and Mail.
This decision is not likely to have much impact beyond Quebec, and it is questionable whether it will have much impact even within Quebec. That’s because the majority took a very narrow view of the issue before it, finding that the only issues were whether a reverse onus section of the Quebec legislation applied when a workplace has been permanently closed, and whether employees can claim ‘reinstatement’ when their workplace has been closed. Binnie J. for the majority ruled that Section 17 of the Quebec Labour Code, which shifts the onus to the employer to prove its actions were not tainted by anti-union animus, does not apply when the employer has closed the workplace.
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.
And, the majority ruled that employees terminated due to a closure of the business cannot claim reinstatement under the Quebec Code. That is how the law has been interpreted in Quebec for years anyhow, and even outside Quebec, it would be highly unusual for a labour board to order an employer to ‘reopen’ after it has closed a workplace and moved the work elsewhere.
The Court upheld that peculiar interpretation of the legislation that the reverse onus does not apply in the case of a complete closure of the workplace. That interpretation was first applied in a case called City Buick Pontiac (Montréal) Inc. v. Roy,  T.T. 22, which was later cited with approval in a SCC case called I.A.T.S.E., Stage Local 56v.Société de la Place des Arts de Montréal,  1 S.C.R. 43 . It is of note, though, that Binnie J. clarified that employees and unions can challenge a workplace closure tainted by anti-union animus under the normal unfair labour practices sections of the Code, it’s just that the reverse onus doesn’t apply. So, in other words, the Court ruled that the union should have framed their case differently. Thus, if the Quebec government doesn’t respond to the case by bringing its law in line with other Canadian jurisdictions, Quebec unions have now been told how to structure their store closure cases.
The Court’s conclusion that the reverse onus doesn’t apply to closures is a significant benefit to union-busting employers like Wal-Mart, since it forces the union to prove “on a balance of probabilities” that the motive for the workplace closure and resulting mass termination of the workers was due to the employees’ exercising union activities. The reason why we have a reverse onus in Canadian labour law is that employees and unions don’t have the information to ‘prove’ why an employer does what it does–the union is not in the board room when the decision is made. Legislators across Canada (except in Quebec, apparently) have long believed it makes more sense to require the employer to take the stand and prove that its decision to terminate all of its employees has nothing to do with the fact that the workers joined a union and tried to bargain a collective agreement.
One of the most interesting things about this decision is the scathing dissent written by Abella J. Lebel and Cromwell JJ. agreed, which is interesting in itself, since these three all have backgrounds that include expertise in labour law. Abella J. is the most experienced labour lawyer on the Bench, and was formerly Chair of the Ontario Labour Relations Board. She argues that the majority decision is contrary to the entire history of Canadian labour law and Quebec law itself. She also emphasizes perhaps the most curious aspect of the approach taken by the majority–that its interpretation provides employees with the protection of the reverse onus in all cases of employee retaliation against employees for union activity except with respect to the most drastic form of retaliation: mass dismissals in the form of a complete closure of the workplace:
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 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.
Hard to argue with that logic, isn’t it? In any event, contrary to some of the newspaper reports I’ve seen, the case doesn’t stand for the proposition that an employer is free to close a workplace without penalty to avoid a union in Quebec. It just means that it will be harder for a union and a dismissed employee to meet the evidentiary burden of proving the closure was retaliation for union activity.
In Ontario, by the way, the reverse onus section of the OLRA (Section 96(5))would apply to a complaint by a union or employee that an employer has closed a workplace and dismissed the workers as retaliation for the workers exercising rights under the legislation.