This past May 27, the Quebec Court of Appeal rendered its
judgment in the matter of Groupe Pages Jaunes
Cie1, a decision that is of interest for companies
that offer their employees a benefits plan or a pension plan.
In that matter, because of various constraints, the employer was
forced to implement a new benefits plan for its employees. A
"defined contribution" category was also created with
respect to the existing pension plan, for employees hired as of
January 1, 2006. Employees hired before that date continued to be
entitled to "defined benefits" under that plan.
The union filed two grievances contesting these changes. The
union argued, inter alia, that the changes were in violation of an
agreement letter concluded with the employer whereby certain
benefits were to be maintained.
Two other arguments put forward by the union are worth
First, the union argued that the changes made by the employer
contravened sections 10, 16 and 19 of the Quebec Charter of
Human Rights and Freedoms. It argued that the changes created
a difference in treatment based on age as, in the union's view,
they had a negative impact on younger employees.
This argument was dismissed by grievance arbitrator,
Mtre Harvey Frumkin. It was also dismissed on judicial
review by the Quebec Superior Court, and subsequently by the Court
The union's evidence in support of this argument was found
to be clearly insufficient. The union had merely referred to an
observation in an expert's report to the effect that the more
recently hired employees were generally younger. According to the
Court of Appeal, the fact that the newer employees were potentially
younger did not establish on a balance of probabilities that
age-based discrimination had occurred2.
The union also argued that the changes made by the employer to
the pension and benefits plans contravened section 87.1 of the
Labour Standards Act (the "LSA") which prohibits
what are commonly termed "orphan clauses".
This argument was also dismissed by the arbitrator, by the
Superior Court and, on May 27, by the Court of Appeal. It is
important to remember that section 87.1 LSA only applies in certain
specific circumstances where the criteria thereunder are met. In
order for a difference in treatment to be prohibited, it must in
particular be based solely on the date of hiring and concern
certain specifically identified labour standards, rather than any
given condition of employment.
The union argued that the pension and benefits plans should be
considered "salary", and would be one of the labour
standards targeted by section 87.1 of the LSA. The arbitrator
dismissed that argument.
The Court of Appeal, after reviewing the other provisions of the
LSA in order to determine the scheme of the statute as a whole, and
after taking into consideration the parliamentary debates on this
very question, concurred with the arbitrator. According to the
Court, it is reasonable to conclude that the labour standard
pertaining to "salary" for the purposes of section 87.1
LSA concerns to remuneration paid in the form of money, and does
not encompass other benefits that have monetary value, such as
fringe benefits and pension plan entitlements.
Langlois Kronström Desjardins lawyers Nicola Di Iorio and Geneviève Beaudin successfully represented Groupe Pages Jaunes Cie in this matter.
1 Syndicat des employées et employés
professionnel-les et de bureau, section locale 574, SEPB, CTC-FTQ
v. Groupe Pages Jaunes Cie, D.T.E. 2015T-414 (C.A.).
2 Ibid, paragraph 28.
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