On April 29, 2005, Wal-Mart Canada Corp. ("Wal-Mart")
definitively closed its Jonquière store. Arguing that the
closure was motivated by an anti-union animus – the store
having been certified in August 2004 – the United
Food and Commercial Workers ("UFCW") then initiated a
series of recourses to contest the company's decision. One by
one, these proceedings (as well as a class action instituted by the
employees themselves) were dismissed by the courts, and one of the
cases reached the Supreme Court in 2009. On that occasion (see
Plourde v. Wal-Mart Canada Corp., 2009 SCC 54),
the Court decided that a complaint under section 15 of the
Labour Code was not the appropriate recourse to contest the closure
of an establishment, and indicated that the proper remedy would
rather be a complaint under section 12 of the Code. That
decision, however, did not put an end to the judicial saga,
because, at the same time, a final recourse, based this time on
section 59 of the Labour Code, was slowly making its way
through the courts. The Supreme Court has just rendered its
decision regarding this recourse today.
The dispute was in essence quite simple. The UFCW contended that
the closing of the store in Jonquière constituted a change
in the conditions of employment of the employees and that, since
that change occurred during the period covered by section 59
of the Code, Wal-Mart should be required to prove that the closure
took place in the normal course of its business activities. Absent
such proof, the Union argued that the arbitrator seized of the case
should allow the complaint.
Wal-Mart, for its part, argued on the one hand that the
Union's complaint, in essence, was one based on section 12
of the Labour Code, and hence was within the exclusive jurisdiction
of the Commission des relations du travail. On the other
hand, the company argued that closing a business did not constitute
a change in the conditions of employment of the employees, and that
the issue should have been considered by examining the job losses
resulting from the closure, which were justified by the
disappearance of the company's requirements and were therefore
part of the "normal economic reality".
Initially, the arbitrator seized of the case accepted the
jurisdictional argument developed by Wal-Mart, but his decision was
then held to be premature by the Superior Court. At a further
hearing (without re-examining the jurisdictional issue), the
arbitrator held, in his second ruling, that Wal-Mart should have
adduced evidence as to the reasons for the closure and that, in the
absence of such evidence, he was obliged to allow the complaint.
The arbitrator's second decision was upheld by the Superior
Court but was overturned by the Court of Appeal of Quebec, which
held that section 59 did not provide an appropriate recourse
for contesting the closure of a business.
In its decision rendered today (UFCW, Local 503 v.
Wal-Mart Canada Corporation, 2014 SCC 45), the majority of
Supreme Court justices were of the opinion that section 59 of
the Labour Code could apply to cases involving the closure of a
business. Consequently, an employer that closes its business during
the "freeze" period "protected" by that section
may in the future be called upon to justify its decision and to
demonstrate that a "reasonable" employer would have acted
in a similar fashion under the circumstances. The Court held that
absent such evidence, the employer may nevertheless close its
business, but it may then be ordered by the courts to compensate
the employees affected by the closure. Since the Court did not
indicate, however, the nature or extent of such compensation, this
file may well continue to be followed in the months and years
Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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