• 2 M.Coutu, L.-Lea Fontaine, G. Marceau and U. Coiquaud, Droit des rapports collectifs de travail, 2^e (...)
• 3 National Labor Relations Act, 29 U.S.C. §§ 151-169.
• 4 Contrary to the situation which prevails at the federal level: see Canada Labour Code, R.S.C. (1985 (...)
• 5 A. Labrosse, La présence syndicale au Québec en 2016, Québec, ministère du Travail, de l’Emploi et (...)

3Labour relations are influenced in Québec by a double distinction, between employees/non-employees on the one hand, and unionized/non-unionized workers on the other.2 This double distinction has its origin in the Wagner Act adopted in 1935 in the United States.3 Thus, certain employees considered not to be employees in the sense of the Labour Code are generally deprived of any access to unionization, collective bargaining, and the right to strike. This is particularly the case of managers acting as representatives of the employer even if their actual role in this respect is quite limited. “Independent contractors” who find themselves in a situation of economic dependence are also excluded from the field of unionized labour relations in Québec.4 In addition, “unionized workers” are not first and foremost individual members of a union, but rather members of a bargaining unit (for example, production workers in a manufacturing establishment or the white collar workers of a municipal administration) which is represented by a certified union. We note that the unionization rate in Québec is about 40% of the workforce, a number which has remained relatively stable for several decades.5

• 6 National Labor Relations Act, cited above (extract from the preamble).

4To understand the structure of labour relations in Québec (and throughout Canada), it is necessary to return to the initial goals of the Wagner Act, including: a) the achievement of industrial peace, in order to promote the development of commerce and industry; b) the achievement of equal bargaining power of workers relative to employers, considering “the inequality of bargaining power between employees who do not possess full freedom of association.”6

• 7 On voluntarism, see R. Dukes, The Constitution of Labour. The Enduring Idea of Labour Law, Oxford U (...)
• 8 See K. V. Stone, “The Post-War Paradigm in American Labor Law”, Yale Law Journal, 1981, n° 90, p.15 (...)
• 9 This is impossible in practice, given the obligation of industrial peace when there is a collective (...)

5From the point of view of the theory of labour law, the Wagner Act paradigm is generally qualified, as opposed to the British voluntarist paradigm (collective laissez-faire),7 of “industrial pluralism.”8 We can associate two fundamental principles to it: 1. negotiation must essentially take place at the level of the business, if not the establishment, and not at the level of the branch or sector,9 which represents for the employer the guarantee of an industrial peace lasting for at least a few to possibly several years; 2. through decentralized negotiation, the balancing of power in the business is realized, with workers thus compensating for the initial power imbalance between the isolated employee and the employer, and business by business, arriving hopefully at a form of industrial democracy.

• 10 C.P. 1003, 17 February 1944; (1944) 44 Gazette du travail 146.
• 11 Labour Relations Act, R.S.Q. 1941, c. 162A.

7In the Canadian context, the reception of the Wagner Act occurred in 1944, in the particular context of the State-controlled economy related to the war effort then underway. It was thus essentially the federal government which regulated labour relations; it adopted the Wagner model in 1944 via Order in Council n° 100310 , which would soon be imitated by all of the provinces, including Québec,11 which reclaimed their exclusive jurisdiction over most labour relations following the end of hostilities.

• 12 Beyond the fact that “at will” employment does not exist in Canada, we note, among other elements, (...)
• 13 This rate is 38.6% in Québec, versus 29.2% in English Canada and only 12% in the United States (A. (...)

8Afterward, there was a gradual, but fundamental, movement of “Canadianization” of the Wagner model. In fact, the Canadian and American systems of industrial relations followed increasingly divergent paths. There are now fundamental differences between these two variations on the Wagner model, for example the guarantee throughout Canada of job protection in the case of participation in a legal strike, which does not exist in the law of the United States.12 This legal distance explains, in part at least, the disparities between the rates of unionization in the USA and Canada, and even more so in Québec.13

• 14 Act Respecting Labour Relations, Vocational Training and Manpower Management in the Construction In (...)
• 15 Act respecting the process of negotiation of the collective agreements in the public and parapublic (...)
• 16 Québec Labour Code, s. 109.1.

9Moreover, we can describe the labour law in force in Québec as a hybrid model. In fact, while retaining the basic grammar of the Wagner model, this model was more influenced by European law than elsewhere in Canada. In particular, sector negotiation, imposed by legislation, prevails in the construction sector14 and in the public sector in Québec,15 a unique situation in Canada. In addition, Québec labour law has put forward certain original solutions, such as the prohibition on replacement workers (strike breakers), during the legal exercise of the right to strike.16

• 17 For a classic overview, see H. Arthurs, “Developing Industrial Citizenship: A Challenge for Canada’ (...)
• 18 Act respecting occupational health and safety, CQLR, c. S-2.1, s. 68 and following.
• 19 Act respecting labour standards, CQLR, c. N-1.1, s. 84.0.9.

10Nevertheless, Québec labour law in principle excludes the dualist model of representation (unions and works councils) which characterizes most European industrial relations systems. As under the Wagner model, it is essentially by a strongly decentralized system of collective bargaining, with recognition by State certification of only the majority union with respect to a bargaining unit, that the participation of workers in labour relations management is realized in the business.17 Of course, labour legislation occasionally requires the business to have representative bodies of staff, including in the non-unionized sector: for example, the Act respecting occupational health and safety18 obliges employers to have joint committees in the business. Under the Act respecting labour standards, in the case of collective dismissal, joint committees for the reclassification of employees must be put into place, etc.19 However, in the absence of union representation in the workplace, such committees appear to be deprived of any real efficacy.

• 20 See the Hydro-Québec Act, CQLR, c. H-5, s. 4 and following. See http://www.hydroquebec.com/a-propos (...)

11It is extremely rare, a fortiori, that representatives of workers can sit on the boards of businesses, even if the Labour Code briefly imagines this possibility. Thus, the largest State-run company, Hydro-Québec, allows no employee delegate on its board of directors, while EDF, its French equivalent, reserves space for 6 delegates from its staff out of 18 members of its board having voting rights.20

• 21 Contrary to France, where the basic element is the branch collective agreement completed by numerou (...)

12Let us note that in the case of unionized workplaces, collective agreements are voluminous documents which generally cover, in a very detailed way, all aspects of labour relations, from the advertising of posts and recruitment, to workplace discrimination, including holidays, work hours, seniority, training etc.21 The respect for collective agreement rules is assured by a specialized forum, the grievance arbitrator, who is named and remunerated jointly by the employer and union parties. Moreover, a joint forum present in many collective agreements, generally called a “labour relations committee”, meets on a regular basis to discuss questions regarding professional relations in the business or institution.

• 27 On the concept of the “economic constitution”, see for example G.Teubner, “Transnationale Wirtschaf (...)

15From the perspective of the North American type of “economic constitution,”27 unionization, collective bargaining, and the use of pressure tactics (such as striking and picketing) are generally perceived as posing obstacles to the optimal profitability of businesses. Certainly, historically, a number of employers, particularly large businesses, have found it advantageous overall to engage with unions in a common management, to the outside, of the labour market, and to the inside, of labour relations in the business. However, if we consider in particular the American example, this time appears over for a number of large firms in the United States, which attempt to avoid unionization, for example by moving their operations to southern states, which are more resistant to the presence of unions. In retail commerce, among others, unionization is considered incompatible with the dominant business model in competitive capitalism, which requires remuneration of the workforce at the lowest possible cost.

• 28 See M.Coutu, “Licenciements collectifs et fermetures d’entreprise au Québec: Le cas Wal-Mart”, Trav (...)
• 29 We highlight 20 decisions at Wal-Mart [including 18 for the Jonquière store alone], 7 decisions at (...)

16The establishment in Canada of an American anti-union multinational like Wal-Mart encouraged other employers, by ricochet, to demonstrate hostility toward unionization,28 by invoking as needed the right to private property and freedom of commerce to close locations, with the single goal of preventing the establishment of a union. In addition, in recent years, several cases of business closings in Québec, following the certification stage or collective bargaining stage, have given rise to numerous judicial decisions.29

• 30 In this way, the case law frequently confuses the business and the establishment, although these ar (...)
• 31 Jonquière (pop. 60,000) is one of the three boroughs forming the city of Saguenay in Québec.
• 32 In 2016, this became the Tribunal administratif du travail (TAT).
• 33 Section 93.1. of the Québec Labour Code provides that in case of an impasse, a first collective agr (...)

17Through the study of the case law on business closings motivated by anti-union animus, we observe the central place which the courts have historically granted to freedom of commerce and the absolute right to “cease doing business” (despite the imprecision of the expression).30 A brief review of the Wal-Mart case appears essential to us to situate the question properly. In North America, no location of this multinational firm had been unionized before the Wal-Mart in Jonquière31 became the subject of a union certification granted in August 2004 to the United Food and Commercial Workers (UFCW) by the Labour Relations Commission (Commission des relations du travail in French, “CRT” below).32 As the negotiations were going slowly, the union requested the nomination of an arbitrator of disputes in order to conclude a first collective agreement, as provided under the Labour Code.33 However, on the very day that the Québec Minister of Labour named an arbitrator, Wal-Mart announced the upcoming closure of its Jonquière location, supposedly for economic reasons.

• 34 This provision protects not only the union leaders, but any employee against any form of anti-union (...)

18The principal recourse launched by the UFCW was based on section 15 of the Labour Code, which protects the job of an employee exercising union activities, with a right of reinstatement with full compensation in the event of firing.34 In such a case, section 17 of the Labour Code creates a presumption in favour of the employee, aiding in the proof of illicit behaviour on the part of the employer. In fact, when the employee demonstrates the exercise of union activities concomitantly with the sanction, the latter is presumed to have been imposed because of anti-union animus. The employer must then necessarily prove, based on a preponderance of evidence, the presence of another “just and sufficient” cause justifying the imposition of the sanction.

• 35 Plourde v. Wal-Mart Canada Corp., [2009] 3 S.C.R. 465.
• 36 See the dissenting reasons of Judges Lebel, Abella and Cromwell (ibid., par. 66 and following), as (...)
• 37 City BuickPontiac (Montréal) Inc. c. Roy, [1981] T.T. 22, followed by: Caya c. 16419749 Québec Inc.(...)
• 38 Incidentally, the Court rejected out of hand any relevance of constitutional freedom of association (...)

19Nevertheless, the Supreme Court of Canada (SCC below) decided in the majority, in a 2009 judgment, that this recourse cannot be used in the case of a business or location closure when the closure is “real and definitive,” whatever the motives may be.35 In a debatable fashion,36 the Court emphasized, invoking decisions of the former Labour Court from the 1980s, the right of the employer to cease doing business “even if the closure is based on socially reprehensible considerations.”37 In other words, in the context of a recourse based on section 15 of the Labour Code, the decision-maker should not consider the motives for the closing: on the contrary, the simple observation of a real and definitive closure is enough to justify the layoffs. In this instance, the evidence demonstrated that it was true: according to the Court, the location was no longer active.38

• 39 See the “Trilogy” of 1987: Reference Re Public Service Employee Relations Act (Alta.) [1987] 1 S.C. (...)

21Since the 2007 reversal of the SCC regarding the scope of section 2d) (Freedom of association) of the Charter of Rights and Freedoms, Canadian labour law has witnessed an important movement toward constitutionalization. In fact, reversing its earlier case law, which was very formalist and based on economic liberalism,39 the Court recognized the right to collective bargaining, and then the right to strike, as fundamental constitutional rights, which it had totally refused to do previously. In our view, this reversal of case law holds considerable importance, the scope of which still remains to be precisely defined. The constitutionalization underway likely institutes a third historical step in the evolution of labour law in Canada, after the era of voluntarism or “collective laissez-faire” of the British type (from approximately 1872 to 1944), and then that of institutionalism (or “industrial pluralism”) fostered by the legislative reception of the Wagner model (1944-2007). It has an impact at once on the representation of workers related to the legislative framework (A) and on the interpretation by the courts of the meaning of property rights and freedom of commerce (B).

• 53 Ibid. See also Travailleurs et travailleuses unis de l’alimentation et du commerce, section locale (...)
• 54 Ibid., par. 64.

241. Paradoxically, the formalist and restrictive decision of the SCC in the Wal-Mart case (2009) contained in itself the seeds of elements of a later evolution of the case law, which would be much more respectful of the right to unionize. In particular, though sections 15 and following of the Labour Code are of no use to dismissed employees due to a literal interpretation of the text, which still prevails, the Court opened the door, in obiter dictum, to the wider application of the concept of “hindering union activity” in sections 12 to 14 of the Labour Code, even in the case of a final closing down of the business.53 On a case-by-case basis, it will be possible to evaluate the actual motives of the closing because this does not create a barrier, even if the closing is real and definitive, to the use of complaints of hindering union activity contrary to sections 15 and following of the Labour Code.54

• 55 Syndicat des travailleuses et travailleurs des Couche-Tard de Montréal et Laval — CSN et Couche-Tar (...)
• 56 2011 QCCRT 449.

25In this way, several complaints based on the notion of hindering were filed concerning the closure of certain Couche-Tard convenience stores, which happened in the middle of the collective bargaining process. In an interlocutory decision, the CRT refused to grant a provisional order to maintain operations, based on the right to cease doing business.55 It nevertheless emphasized that if these were truly anti-union closings, the tribunal could, during the hearing on the merits, order the reinstatement of the employees, with compensation, in other establishments.56 A collective agreement was finally concluded, and the union withdrew the complaints.

• 57 See for example Syndicat des Métallos, sections locales 7016 et 8428 c. Systèmes et câbles d’alimen (...)

26Because, contrary to section 17 of the Labour Code, no legal presumption of anti-union animus can be invoked with respect to allegations of hindering or interference, the union must demonstrate that the closing of the business was based on this motive. At first glance, the burden of proof resting on the union appears heavy according to the traditional case law.57 However, in the decision Plourde v. Wal-Mart of 2009, the SCC emphasized that proof of an anti-union animus in a case of hindering within the meaning of the Labour Code does not require conclusive evidence: the presence of a single anti-union consideration is sufficient to demonstrate the illegality of the employer’s behaviour, even if other valid motives, of an economic nature for example, form the basis for the decision to close down.

• 58 See also, at the federal level: Fedex Freight Canada Corp. v. Teamsters Local Union No. 31, 2017 FC (...)

27This kind of approach is apt to greatly assist in proving anti-union behaviour in case of interference in the sense of section 12 of the Labour Code, despite the absence of the legal presumption mechanism which applies during a firing, suspension, transfer, etc. based on the exercise of a right provided by the Code (s. 15 and following, Labour Code).58

• 59 United Food and Commercial Workers, Local 503 v. Wal‑Mart Canada Corp., [2014] 2 S.C.R. 323 (hereaf (...)

282. By implicitly making an important case law reversal in 2014, the SCC opened the possibility of another type of recourse with a vast scope, in the case of restructuring, including anti-union closures. This decision,59 although it makes no direct reference to it, is clearly within the movement of constitutionalization of labour law by giving a substantive interpretation to a provision of the Labour Code related to the maintenance of working conditions, previously seen as having only a procedural application.

• 60 This section prohibits the employer from modifying the working conditions of employees without the (...)
• 61 Before this decision, the case law considered that the exercise of management rights of the employe (...)
• 62 Wal-Mart 2, par. 64.

29Thus, in the case of the Jonquière Wal-Mart, the union had filed another complaint, before the grievance arbitrator this time, alleging that the closing of the establishment constituted a violation of section 59 of the Labour Code, which obliges the employer to maintain the working conditions in force, following the filing of a motion for certification.60 In its 2014 decision, the Supreme Court judged that in this case,61 “the employer is (1) neither shielded by the closure of its establishment (2) nor, otherwise, relieved of the burden of proving that its decision was consistent with its normal management practices.”62

• 63 Ibid., par. 46.
• 64 Ibid., par. 38; Union des routiers, brasseries, liqueurs douces & ouvriers de diverses industries c (...)

30If it fails to respect section⁵⁹ of the Labour Code, the employer must assume the consequences, including in cases of illegal closure, among others by compensating the workers affected, for the whole of the damage suffered. In light of the meaning of section 59 of the Labour Code, proof of such a change to working conditions depends of course on the union,63 but it is not necessary to demonstrate that the decision was “motivated by anti-union animus.”64

• 65 Wal-Mart 2, par. 81.
• 66 Travailleuses et travailleurs de l’alimentation et du commerce, section locale 501 c. Wal-Mart Cana (...)
• 67 Wal-Mart 2, par. 56.

31As soon as the union satisfies this burden of proof, the employer must then demonstrate that the behaviour is based on a routine management practice65 and that it only proceeded with normal and essential changes for the daily administration of the business.66 In particular, a change to the working conditions must be coherent with previous management practices in the business, or if not, must be “consistent with what a ‘reasonable employer in the same position’ would have done.” 67

• 68 Following an agreement between the UFCW and Wal-Mart, the exact terms of the settlement regarding t (...)

32In this way, during the closure of a business, the employer must demonstrate that major economic constraints reasonably imposed this kind of decision. Wal-Mart was unable to provide convincing evidence of such financial difficulties with respect to its Jonquière facility – on the contrary, the facts entered into evidence attested to the economic viability of the establishment – and thus its act was judged contrary to section 59 of the Labour Code. As a result, almost six years after the closing of the Jonquière store, Wal-Mart finally had to compensate the dismissed workers to the tune of several million dollars.68

• 69 A perspective which we link to the paradigm of industrial pluralism, considered outdated today.
• 70 See in this sense R. v. Canadian Union of Public Employees, Local 1252, 2016 CanLII 67993 (NB LEB), (...)

33Let us emphasize that in this very important decision, the SCC specifies the aim of section 59 of the Labour Code: it is meant not only to maintain the “balance” between the employer and union parties,69 but above all aims to foster freedom of association and collective bargaining.70 The connection with the new constitutional labour law appears evident here.