Semantic Formalism v Purposive Remediation: Contrasting Interpretations of the QC Labour Code in Wal-Mart

A little over a week ago, the Supreme Court of Canada released its long-awaited decisions in Plourde v Wal-Mart Canada Corp, [2009] 3 SCR 465 [Plourde], and Desbiens v Wal-Mart Canada Corp, [2009] 3 SCR 540 [Desbiens] (the Wal-Mart decisions). As with most Labour cases, reaction will largely depend on which side of the ideological divide one sits: many employers and counsel in the Quebec business community (not least of which Wal-Mart) are doubtless pleased with the results, while it seems probable labour activists are less than thrilled.

The facts in this case are relatively straightforward. In August 2004, the United Food and Commercial Workers Union was certified as the bargaining agent for the the Jonquiere Wal-Mart store. Negotiations towards a collective agreement proved unsuccessful, so the parties were referred to first contract arbitration. The same day an arbitrator was appointed by the Quebec Minister of Labour, Wal-Mart announced the closure of the Jonquiere store. Shortly thereafter, certain workers filed complaints with the Commission des relations du travail (“CRT”) under ss. 15 and 16 of the Labour Code, CQLR c C-27, which alleged Wal-Mart terminated the employees because of their union activities. As the Desbiens case follows from the result in Plourde, my discussion will focus on the Court’s decision in the latter case.

For ease of reference, the critical provisions of the Labour Code are as follows:

12. No employer, or person acting for an employer or an association of employers, shall in any manner seek to dominate, hinder or finance the formation or the activities of any association of employees, or to participate therein. […]

13. No person shall use intimidation or threats to induce anyone to become, refrain from becoming or cease to be a member of an association of employees or an employers’ association.

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.

This section shall not have the effect of preventing an employer from suspending, dismissing or transferring an employee for a good and sufficient reason, proof whereof shall devolve upon the said employer.

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. […]

(b) order the employer or the person acting for an employer or an employers’ association to cancel the sanction or to cease practising discrimination or taking reprisals against the employee and to pay him as an indemnity the equivalent of the salary and other benefits of which he was deprived due to the sanction, discrimination or reprisals.

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.

118.  The Commission may, in particular,

1) summarily reject any motion, application, complaint or procedure it considers to be improper or dilatory;

2) refuse to rule on the merits of a complaint where it considers that the complaint may be settled by an arbitration award disposing of a grievance, except in the case of a complaint referred to in section 16 of that Code or in sections 123 and 123.1 of the Act respecting labour standards (chapter N-1.1) or a complaint filed under another Act;

3) make any order, including a provisional order, it considers appropriate to safeguard the rights of the parties;

4) determine any question of law or fact necessary for the exercise of its jurisdiction;

5) confirm, modify or quash the contested decision or order and, if appropriate, render the decision or order which, in its opinion, should have been rendered or made initially;

6) render any decision it considers appropriate;

7) ratify a conciliation agreement, if in conformity with the law.

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) issue an order not to authorize or participate in, or to cease authorizing or participating in, a strike or slowdown within the meaning of section 108 or a lock-out that is or would be contrary to this Code, or to take measures considered appropriate by the Commission to induce the persons represented by an association not to participate, or to cease participating, in such a strike, slowdown or lock-out;

5) order, where applicable, that the grievance and arbitration procedure under a collective agreement be accelerated or modified.

The employees were unsuccessful before the CRT (see: Plourde c Compagnie Wal-Mart du Canada, 2006 QCCRT 207), which held the applicants had shown sufficient union activity to engage the protection of s. 17, but that Wal-Mart discharged its onus by virtue of the complete closure of the Jonquiere store. This interpretation was based on City Buick Pontiac (Montreal) Inc v Roy,  [1981] TT 22 [City Buick], adopted by the Supreme Court of Canada in IATSE, Stage Local 56 v Société de la Place des Arts de Montréal, [2004] 1 SCR 43, [Place des Arts] which found that, [translation] “[i]f 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” (para 28) [All emphasis removed].

The Quebec Superior Court, in Plourde c Commission Des Delations du Travail, 2007 QCCS 3165, upheld the CRT’s decision, and the applicants’ leave applications to the Quebec Court of Appeal was denied (see: Plourde c Compagnie Wal-Mart du Canada Inc, 2007 QCCA 1210). Despite this impressive litany of judicial rejections, the appellant employees and their union appealed to the Supreme Court of Canada; the Court granted leave to appeal August 7, 2008, and the appeal was heard January 21 of this year.

The issues before the Court were:

1. Does the termination of an employee brought about by the closure of an employer’s place of business fall within the meaning of “a sanction” imposed on an employee such that would trigger the remedies available in s. 15?

2. Is the closure of a business a complete answer to the reverse onus imposed by virtue of s. 17 on employers who terminate or otherwise sanction employees?

Plourde: The Majority
The majority judgement, written by Binnie J., concluded that employees cannot seek remedies for such terminations through ss. 15, 16, or 17. Focusing on the remedies available to the CRT in section 15, Binnie J. concluded these provisions are limited to the situation of a continuing business. In his view, the Quebec legislature assigned different roles for ss. 12 to 14 and ss. 15 to 17, and the appropriate route to challenge questionably-motivated closures of Quebec businesses is through ss. 12 to 14. Further, Binnie J. found Place des Arts a persuasive authority: while the decision did not immunize employers from all consequences flowing from a business closure, he found it does confirm the distinction between individual terminations and business closures. In Quebec, the CRT and courts will look into the underlying motivations for the former, while the reasons for latter are too remote from the resulting terminations to engage scrutiny under ss. 15 or 17.

In the majority’s view, while there is merit to the argument employers are better able than unions to demonstrate the true motivations for business decisions, requiring employers to prove the lack of anti-union animus in a decision to close a unionized store would “significantly alter the balance between employers and employees intended by the Quebec legislature” (para 39). Binnie J. found this interpretation was supported by the Quebec Legislature’s decision not to respond to City Buick as part of the 2001 amendments to the Labour Code. In his opinion, the legislature had simply decided not to require employers to “open their books” to scrutiny when they close their businesses. Further, the majority was unwilling to reconsider Place des Arts in light of Health Services and Support – Facilities Subsector Bargaining Assn v British Columbia, [2007] 2 SCR 391 [BC Health Services] and the appellants did not challenge the constitutionality of any provisions in the Labour Code. Finally, Binnie J. did not find comparisons to other provinces’ legislation relevant to the proper interpretation of these sections of the Quebec Labour Code.  Accordingly, the majority concluded the CRT’s interpretation of ss. 15 to 17 was reasonable, and dismissed the applicant’s appeal.

Plourde: the Minority
Abella J. disagreed with the majority’s characterization of the Labour Code and Place des Arts. In the minority’s view, the expanded remedies in ss. 15 to 17 apply to all violations of employees’ rights under the Labour Code. Abella J. pointsed out that labour relations statutes are pieces of remedial legislation, intended to not only set out the rules for ‘economic warfare’ between labour and employers but to also in doing so redress some of the gross imbalance of power (particularly informational) employers enjoy. Additionally, she specifically emphasized that ss. 15 to 17 are themselves remedial, intended to add mechanisms to the Quebec labour relations scheme redressing wrongs done to employees. The minority felt it thus behoved the Court to encourage, rather than stifle, employees’ access to the provisions at issue.

The minority also chronicled of the history of the Labour Code and its precursor legislation (including the Wagner Act) to illustrates that City Buick was an anomalous decision, divorced from the broad purpose of the statute and the remedial intent of the legislature. She submitted that Place des Arts did not, in fact, uphold City Buick; rather, it only quoted City Buick for the narrow point that employers are ultimately permitted to close their places of business. Place des Arts further did not consider the issue of what remedies would be available to workers in the event of such a closure. The minority concluded that employees should be able to access remedies in the event of wrongfully-motivated termination by their employer, and saw no principled reason why these remedies should be restricted only to ss. 12 to 14 in the case of an employer closing a business.

Commentary:

Plourde makes strikingly few references to BC Health Services. As the dissenting judgement, supported by LeBel J., does not mention the case at all, it seems safe to say Binnie, J. speaks for the Court in confirming the central issue in that case was the BC Government’s duplicity in agreeing to contracts as an employer, and then using its legislative powers to eviscerate those very same contracts shortly thereafter with essentially no consultation. While the case may turn out to have interesting repercussions for the private sector by virtue of the Fraser decision, its general utility now seems likely limited to marginalized communities and public sector workers. At the very least, the Court –for better or worse– appears to have severely curbed its enthusiasm for the wholesale revision of Canadian labour law.

Far more troubling is the majority’s perverse insistence on a limited interpretation of rights afforded to unions and employees in the Labour Code. The majority seems to emphasize only one purpose of modern North American labour relations legislation: specifically, providing a ‘safe sandbox’ for workplace disputes by taking them out of the streets and into boardrooms and Board hearings. Abella J.’s perspective on the background to the Labour Code and its precursor legislation, on the other hand, also recognizes the important salutary goals of labour relations legislation in general, and ss. 15 and 17 in particular.  I prefer the minority opinion in this respect: not only is her historical analysis on point and (as I understand it) accurate, but I agree that labour relations statutes are intended to provide rights to employees and ought to be interpreted in a large, liberal, and purpose manner.

Historical references can be distracting in many cases, and I admire Binnie J’s determination to focus on the wording of Labour Code as presently enacted. I must concede, too, that the majority ruling on the scope of s. 15 is not without merit: while there is scope for the CRT to award remedies other than reinstatement for a breach of s. 15, there are not statements of the same sweeping authority such as are found in, say, ss. 118 and 119.  With the greatest respect, however, quoting irrelevant Hansard and examining the principal remedies available from a breach of s. 15 do little to address why “because the employer decided to close the business” should be a “good and sufficient reason” to terminate employees under s. 17.

The majority’s decision does not directly engage the main issue: why should the courts not consider whether an employer’s motivation for closing a store constitutes a “good and sufficient reason” under s. 17?  In Place des Arts, the Court simply concluded City Buick “rightly held that it was not for the Labour Tribunal to sit in judgment of the employer’s reasons for shutting down” (para 31). This bald conclusion does not strike me as particularly compelling reasoning. Further, while it is true the Quebec legislature did not amend the Labour Code after City Buick, it is important to note that legislative amendments referred to by the majority occurred before the Supreme Court of Canada’s endorsement of City Buick in Place des Arts.  I would argue the ‘intention’ (if any) one can reasonably impute from legislative inaction in the face of a CRT ruling, no matter how influential, is very different from legislative inaction in the face of a Supreme Court of Canada ruling directly on point.

Ultimately, as Abella J. points out, the only principled reason the majority provide for narrowly interpreting s. 17 is because they do not want to upset the ‘balance of power’ between employers and employees.  Though this is an understandable concern, the raison d’etre of the Labour Code, including the provisions at issue, is to set out the appropriate balance of power as determined by the legislature.  Given the choice between two possible interpretations of a section in a historically-remedial statute, the Court should not shy away from adopting a fulsome interpretation of an employee right when the legislature has already balanced stakeholder interests when it crafted the section at issue.

Though the result of the Wal-Mart decisions can only be described as an unfortunate set-back for the Quebec labour movement and the workers at the Jonquiere store, these cases should not give labour commentators cause to despair. First, as the majority notes, this decision only interprets the provisions of the Quebec Labour Code. Indeed, as both the majority and the minority recognize, legislation in other provinces more clearly reflect enlightened attitudes towards the realities of workplace closures. Additionally, the most recent addition to the Supreme Court of Canada Bench (Cromwell, J.) numbered among the dissenting Justices. While it is typically imprudent to assume that any particular ideological bent prompts a Justice to side with a group of Justices in any judgement, and the Court (let alone any individual Justice) ‘has no friends’ among interest groups of any stripe, it does not seem too much of a stretch to conclude Cromwell J. at least tended to agree in principle with the broader conception of labour relations statutes as set out in Abella J.’s dissent.

Finally, one potentially positive point is the deference apparently shown to the CRT’s findings. As I am a unilingual Anglophone, I am unable to conduct my own analysis of both judgements to compare nuances in reasoning,  but the majority claims to defer to the expert labour tribunal’s reasoning, stating: “the CRT’s refusal to extend the s. 15 reinstatement remedy to a closed workplace is a reasonable interpretation of its constituent Act, and [we] would not interfere with it” (para 63). I tend to prefer in principle properly-constituted Labour Relations Boards to Courts for the nuanced interpretation of labour relations statutes and the sensitive resolution of thorny workplace issues, and I agree that the CRT’s position was at least a cogent and defensible alternative to the correct legislative interpretation. How much weight was accorded to the CRT’s reasons by virtue of the tribunal’s expert status and the historical separation of the Courts and Labour Law (as opposed to, say, the coincidence in perspective between the CRT and the majority as to the appropriate reasoning in this case) I could not speculate; I hope, however, Plourde indicates the Court may be willing to show equal deference when Labour Boards adopt positions with which the Justices disagree.

In closing, by refusing to adopt a large, liberal or purposive interpretation of the Labour Code, the Court returns to historic form.  Wal-Mart ultimately serves to remind advocates for workers that advocacy before the courts (and, indeed, before the Court) can not entirely replace the traditional, highly political advocacy which initially won the Labour Code and similar legislative rights.  Such litigation can, however, prove remarkably adept at highlighting judicially-constructed limitations in existing regimes.