In Québec, the Labour Code (the "Code") provides a framework for the exercise of freedom of association through its various provisions. Managers have always been excluded from the definition of "employee" in section 1(l)(1) of the Code, thereby denying them access to the certification procedure for unionization.

The reason for this exclusion is simple: managers generally perform functions as representatives of the employer in their relations with other employees. The question then arose as to whether this exclusion of managers from the definition of employee violated the right to freedom of association protected by section 2(d) of the Canadian Charter of Rights and Freedoms and section 3 of the Charter of Human Rights and Freedoms.

After the Tribunal administratif du travail (the "TAT"), the Superior Court of Québec in the appeal for judicial review, and then the Court of Appeal of Quebec addressed the issue of unionization of first-level managers in the same case, the highest court of the country has now taken up the matter. Indeed, the appeal to the Supreme Court of Canada was authorized on September 29, 2022 following the application for leave to appeal filed by the Société des casinos du Québec and the Attorney General of Québec.

The case now before the Supreme Court can be summarized as follows. On February 8, 2022, the Court of Appeal, in Association des cadres de la Société des casinos du Québec v. Société des casinos du Québec, reinstated an interlocutory decision of the TAT to the effect that the exclusion of managers from the definition of "employee" in the Code constitutes a substantial interference with freedom of association. In its decision, the TAT had declared this exclusion constitutionally inoperative with respect to the members of the Association des cadres de la Société des casinos du Québec (the "Association"), a group of managers, and for the purposes of examining the latter's application for accreditation.

Specifically, the Court of Appeal held that the TAT was correct in concluding that the exclusion in the Code deprived the Association of sufficient independence to exercise its freedom of association, and that the absence of a remedy or mechanism for bad faith negotiation, as well as the inability to enforce the right to strike, substantially interfered with the right of association of the first-level managers of the Société des casinos du Québec. The conclusion of the Court of Appeal that there were less prejudicial means of achieving the legislative objective, given the absence of nuance as to the level of managers excluded from the notion of "employee" and the absence of distinction as to their hierarchical rank in the company, the nature of their functions and their involvement – or not – in negotiations with unionized groups, was confirmed by the Court of Appeal. The latter finally confirmed the conclusion of the TAT that this infringement of the right to association could not be justified based on conflict of interest as claimed by the Attorney General of Québec in the first instance.

Given the importance of the issues raised in this case and its potential impact on the law of collective labour relations in Québec and Canada, it is not surprising that the Supreme Court has decided to hear the case. Now, we can only wait for the decision of the highest court in the country.

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