On Friday, the Supreme Court of Canada released its concurrent
decisions in Plourde v. Wal-Mart Canada Corp., 2009 SCC 54
and Desbiens v. Wal-Mart Canada Corp., 2009 SCC
A Wal-Mart store in Jonquière, Québec was
certified by the FTQ – a Québec union. Collective
bargaining was unsuccessful, and the Québec Minister of
Labour appointed an arbitrator to resolve the outstanding issues so
that a collective bargaining agreement could be achieved. When the
arbitrator was appointed, Wal-Mart announced that it was closing
the Jonquière, Quebec store. Many employees filed unfair
labour practices complaints against Wal-Mart under various
provisions of the Québec Labour Code. Plourde
claimed that he lost his employment because the employees of the
Jonquière, Québec store were certified to be
represented by the FTQ, and sought an order reinstating him to his
job. The Québec labour tribunal (the CRT) dismissed
Plourde's complaint, and determined that Wal-Mart had
discharged its onus to demonstrate that his dismissal was for good
and sufficient reason. Plourde sought judicial review of the CRT
decision, and the matter proceeded through the Quebec courts to the
Supreme Court of Canada.
The Supreme Court of Canada upheld the longstanding doctrine
that a definitive workplace closure constitutes good and sufficient
reason for a dismissal. More practically, the Court determined that
Plourde could not be reinstated because Wal-Mart no longer operated
the Jonquière, Quebec store and therefore could not be
reinstated at that location. In other words, the specific
legislative remedy sought by Plourde and the employees in the
Desbiens case was not available, because the
Jonquière, Québec store had closed, both appeals were
Although this can be seen as a victory for employers, it should
be noted that the specific fact that the store in which the
employees had worked no longer existed, coupled with the precise
wording of the relevant provisions of the Québec Labour
Code, make the decisions relatively limited in application.
The issue of why the Jonquière, Quebec store was closed was
not addressed in detail, as the Supreme Court of Canada concluded
that it was not an appropriate consideration for the specific
provision under which the employees complained. Indeed, the Court
noted that had the employees applied under other unfair labour
practice provisions of the Québec Labour Code, the
relevance of possible anti-union animus would have been an
issue and other remedies would have been available:
[...] that any employer can close a plant for "socially
reprehensible considerations" does not however mean it can do
so without adverse financial consequences, including potential
compensation to the employees who have thereby suffered losses.
Going forward, employers need to maintain good practices that
avoid creating the appearance of antiunion animus. If a
union certification drive occurs, impacted employers must ensure
that they proceed cautiously to avoid unnecessary unfair labour
practice complaints – which can have significant results,
including automatic certification in some jurisdictions.
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