On Friday, June 27, 2014, the Supreme Court of Canada ruled that
Wal-Mart will have to compensate the former employees of its
In a five to two ruling, in a case that originated with the
filing of a grievance in March 2005, the highest court in the land
upheld the arbitrator's decision, concluding that the
resiliation of the contracts of employment of all the employees at
the Jonquière establishment constituted a unilateral change
in conditions of employment prohibited by section 59 of the Quebec
Labour Code (Code).
Section 59 of the Code, which provides for a freeze of
employment conditions, including from the filing of a petition for
certification, is intended to foster the exercise of the right of
association and encourage good faith negotiation between the
In this case, the union representing the former employees was
able to discharge its burden of proof by showing "(1) that
a condition of employment existed on the day the petition for
certification was filed or a previous collective agreement expired;
(2) that the condition was changed without its consent; and (3)
that the change was made during the prohibition period."
By establishing that the alleged change was inconsistent with
the employer's normal management practices, the arbitrator
rendered a decision that the Supreme Court of Canada considered
reasonable, because it was "clearly one of the possible,
acceptable outcomes which are defensible in respect of the facts
and law." The court indicated that, when faced with such
a decision, deference was in order.
Given that the case involved a complaint made under section 59
of the Code, section 100.12 of the Code and
article 1590 of the Civil Code of Québec conferred
broad remedial powers on the arbitrator. Consequently, he was
empowered to order an alternative remedy in the form of damages,
because the closure of the business did not preclude him from
granting compensation under section 59 of the Code. The
case was therefore remanded to the arbitrator to determine the
appropriate remedy in accordance with the disposition of his award
dated September 18, 2009, in which he had reserved jurisdiction to
establish the appropriate remedy.2
Although Québec law frequently contrasts with the laws
elsewhere in Canada, it appears that the mechanism of section 59 of
the Code is reflected in the legislation of other Canadian
provinces, in addition to having a federal counterpart. Thus, the
effects of this Supreme Court ruling, which will apply to all
general labour relations schemes, will be felt throughout Canada.
From now on, the management of a business in which a unionization
process has begun will prove to be a more delicate matter for the
Readers may recall that the approximately 200 employees of the
Jonquière Wal-Mart were the first in North America to
complete the certification process and then become unionized, after
which, a few months later, while negotiations for the terms of a
first collective agreement proved unfruitful, their employer closed
the business, claiming financial reasons to support the closure. In
2009, in a case based on other legal arguments, the Supreme Court
of Canada had dismissed the union's appeal and had upheld
Wal-Mart's defence against allegations that it had used
roundabout means to prevent unionization by closing the store in
1. United Food and Commercial Workers, Local
v. Wal-Mart Canada Corp, 2014 SCC 45
2 United Food and Commercial Workers, Local 503
and Compagnie Wal-Mart du Canada – Établissement
de Jonquière (grief syndical), T.A., 2009-09-18,
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