The procedural background is convoluted (Rothstein and Wagner
wrote that "This is the latest in a seemingly interminable
series of cases in this Court and the courts in Quebec arising from
the closure of the Wal-Mart store in Jonquiere, Quebec over nine
years ago"). In 2005, after a certification drive, but before
a collective agreement was reached, Wal-Mart closed the store. The
employees and the UFCW brought a series of complaints under the
Quebec Labour Code, and a class action. Apart from this
case, all of these actions had been unsuccessful. In particular, in
Plourde (a 2009 decision of the Supreme Court of Canada,
available here), Wal-Mart prevailed over
claims by the individual employees, in part based in long-standing
Quebec law (City Buick and Place des Arts) which
confirmed that an employer in Quebec can always close its business,
even for "reprehensible" reasons.
This particular complaint was under s.59 – the statutory
freeze provision. All jurisdictions in Canada contain similar
statutory freeze provisions designed to preserve terms and
conditions of employment pending application for certification and
during certain stages of collective bargaining.
The Arbitrator concluded (these sort of complaints are heard by
arbitrators in Quebec, as opposed to the Labour Board) there was a
breach of s. 59 because closing the business was altering the terms
and conditions of employment and there was no evidence lead by
Wal-Mart to justify the closure. This finding was overturned by the
Quebec Court of Appeal, who relied on the City Buick,
Place des Arts and Plourde cases to conclude that
the s. 59 had no applicability in the context of a closure of a
The Court concluded that the Arbitrator's finding was
reasonable confirming that termination in the context of a business
closure is a change to the terms and conditions of employment. He
further concluded that Plourde was limited to its
particular facts and did not prevent the arbitrator from reaching
the conclusion that he did. Wal-Mart was not shielded by the
closure of its establishment or otherwise relieved of the burden of
proving that its decision was consistent with its normal management
practices. The matter was remanded to the Arbitrator to determine
the appropriate remedy.
The minority decision concluded that section 59 did not apply in
the context of a business closure. They argued that the majority
position ignored Plourde, Place des Arts and City
Buick and undermined the principal of stare decisis
(the notion that courts are bound by legal precedent). They further
...the purpose of s. 59 is to protect the equilibrium between
the parties as they work toward a collective agreement, and to
allow the union to get around its burden of proof under ss. 12 to
14 in the context of a business closure.
The decision is largely limited to the particular statutory
regime in Quebec. However, there are some comments in the majority
decision which suggest a more robust and pro-union interpretation
of the statutory freeze provisions, for example:
In my opinion, the purpose of s. 59 in circumscribing the
employer's powers is not merely to strike a balance or maintain
the status quo, but is more precisely to facilitate certification
and ensure that in negotiating the collective agreement the parties
bargain in good faith.
It seems unlikely that this decision will radically alter the
approach taken in common law jurisdictions, where the
"business as usual" test typically applies in the freeze
period, and considerations of anti-union animus are considered in
the context of unfair labour practice complaints. For context, an
unfair labour practice complaint was initially pursued by the UFCW
in this case, but dropped. The Labour Code provisions in
Quebec do not contain a reverse onus provision, which makes that
process more difficult than in most of the other jurisdictions in
However, this decision may be cited by unions to support a
generous interpretation of statutory freeze provisions. In any
event, extreme caution should be exercised when considering closing
a business, or otherwise altering the terms and conditions of
employment, during a statutory freeze period.
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.
A former teacher at Bodwell High School has learned a valuable lesson from the B.C. Human Rights Tribunal— it is not discriminatory for an employer to offer child-related benefits to only employees with children.
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.
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