On September 14, 2011, the Court of Appeal of Quebec rendered a
significant decision in the context of the labour dispute which
occurred at the Journal de Québec (the
"Journal") in 2007-2008. This decision sheds some light
on the scope of the "anti strikebreaker" provisions of
the Labour Code (Quebec)1.
Affirming the judgment of the Superior Court, the Court of
Appeal noted that an employer may have the work of employees on
strike or locked out performed by persons employed by a third
person, provided that it is not performed in the establishment
(premises) where the work stoppage has been declared.
Concept of establishment
It is to be noted that during this labour dispute the Journal
kept on being published without interruption, which was made
possible in particular by the use of articles and photographs from
third party contractors whose services had been retained by the
Journal. These third parties, who were not employees of the
Journal, were working on the road gathering the news, like the
employees of the Journal formerly did. They sent their articles and
photographs to the Journal by email, making sure that they never
worked at or visited the "establishment" of the Journal
located on Béchard Street in Quebec City.
The Court had to decide whether this practice contravened
section 109.1 (b) of the Labour Code, which provides that, for the
duration of a strike or a lock out, employers are prohibited from
utilizing, "in the establishment" where the labour
dispute has been declared, the services of a person employed by
another employer or the services of another contractor to discharge
the duties of an employee who is a member of the bargaining unit on
strike or locked out.
Decision of the Commission des relations de travail
The Commission des relations du travail (CRT) had interpreted
this provision as meaning that all the work "normally
performed" by the journalists and photographers of the Journal
prior to the work stoppage, even that performed "outside"
the Journal's establishment (premises), could not be entrusted
to a third-party contractor. In short, the work performed outside
the establishment (premises) by the unionized employees before the
labour dispute could not be performed at any place whatsoever by
Judgments of the higher courts
This interpretation by the CRT was declared unreasonable by the
Superior Court because it modified or rendered meaningless the
"anti strikebreaker" provisions. The Court of Appeal of
Quebec confirmed that the fact that the replacement employees
performed their duties outside, and at the same places where the
journalists and photographers worked prior to the labour dispute,
did not constitute a violation of section 109.1 (b) of the Labour
Code. The prohibition in the Code concerns only the work performed
"in the establishment" of the employer. The Court was of
the view that the legislator had not intended to prohibit
replacement work but rather only to prevent it being performed
"in the establishment" of the employer, in order to
prevent violence from occurring on the picket line in front of the
The Court specified that [translation] "despite the fact
that for certain types of work it is easy to call upon replacement
workers to perform work outside the establishment, while it may be
less easy, difficult, very difficult or even impossible to do so
for other types of work, that is not a relevant factor".
Indeed, the law applies to all and it may happen that it does not
affect everyone in the same way. The Courts must however respect
the choice made by the legislator, who is the only one who may
amend the law.
The decision of the Court of Appeal confirmed the interpretation
generally given to this provision since it came into force in the
This decision will no doubt be welcomed by employers who, like
the Journal, are subject to a certification applicable to a
specific address, while many of their activities take place outside
of the establishment mentioned in the certification, in particular,
transport businesses and employers hiring teleworkers. In labour
dispute situations, these businesses may rely on replacement
workers without contravening the Labour Code.
This decision may be appealed to the Supreme Court of Canada by
the union representing the Journal employees.
Lavery represents the group of contractual photographers
involved in the proceedings discussed above.
1. Syndicat canadien de la fonction publique, section
locale 1450 et al. v. Journal de Québec, 2011
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