In Quebec, like anywhere else in the world, several companies announced mass layoffs due to the pandemic, some without prior notice, given the scope and consequences of the crisis which were difficult to foresee.
In this context, does the pandemic exonerate an employer who did not respect the time limits to give collective dismissal notice?
In the case of the Association internationale des machinistes et des travailleurs et travailleuses de l’aérospatiale du Québec, section locale 712 v Bombardier Aéronautique inc., arbitrator Nathalie Faucher had to rule on this issue.
Grievances were filed by the union during the COVID-19 pandemic against the employer, an aircraft manufacturer, following a mass layoff in June 2020.
The union invoked, among other things, that the collective dismissal notice sent on June 5, 2020 by the employer to the Minister did not respect the timeframe set in the Act respecting labour standards (hereinafter the “ALS”). Consequently, the union claims that the non-compliance of collective dismissal indemnity provided for in the ALS should be paid to the employees concerned, less the amounts already received as individual notice. The employer responds that they were unable to give notice to the Minister within the prescribed time limits because of force majeure or, at the very least, an unforeseen event, namely the COVID-19 pandemic.
Indeed, under the ALS, an employer who is prevented from giving collective dismissal notice within the prescribed time period, whether due to “force majeure” or an “unforeseen event”, is not required to pay employees the compensation provided for under the ALS. The employer must send the notice to the Minister as soon as it is able to do so.
First and foremost, the Tribunal emphasized that in order to grant the exemption based on force majeure, it must determine whether the employer, at the time they decided to proceed with the mass layoff, was faced with an unforeseeable and irresistible event.
The Tribunal noted that the evidence did not allow it to conclude, based on the facts of this case, that the employer was in the presence of such a situation of force majeure when it decided to proceed with the dismissal, due to insufficient evidence of the event’s irresistible nature.
However, the Tribunal accepted the exoneration plea based on the occurrence of an “unforeseen event”. In the Tribunal’s view, it was impossible for the employer to foresee that a mass layoff would be necessary in June 2020, since a reasonable person could not anticipate that a crisis of this magnitude would occur and last for such a long time. The employer was therefore acting in good faith when it made its decision. In this context, the Tribunal concludes that the employer was exempt from paying the employees the collective dismissal indemnity provided for in the ALS.
This decision shows that the pandemic may indeed, in certain circumstances, relieve the employer of its obligation to pay mass layoff compensation if it was prevented from meeting the statutory deadline for providing notice for a mass layoff.
Within the framework of the ALS, the assessment of a defence based on force majeure or an unforeseen event is specific to the particular circumstances of each case. Thus, just because the court held that the COVID-19 pandemic could not be characterized as force majeure in this case, it does not mean that it could not be characterized as such in other situations, based on the evidence presented. Indeed, other decision-makers have reached different conclusions regarding “force majeure” in similar situations.
For example, in the Syndicat démocratique des salariés du Château Frontenac v Fairmont Le Château Frontenac case, the employer claimed that it was unable to notify its employees of their shift cancellation at least 48 hours in advance (as required by the collective agreement) due to force majeure related to the pandemic, i.e., the closure of its restaurants by government decree.
In this case, arbitrator Dominique-Anne Roy dismissed the grievance on the grounds that the government’s decree was an event of “force majeure” that prevented the employer from fully performing its contractual obligation. The employer had no choice but to close its restaurants. The required notice could not be given within the prescribed time period for reasons beyond the employer’s control.
Arbitrator Pierre Laplante came to a similar conclusion in CUPE, Locals 2229 and 2301 v Ville de Blainville, a decision that is currently under appeal for judicial review.
We will certainly see how the case law develops in this regard in the coming months.
Finally, please note that the Association internationale des machinistes et des travailleurs et travailleuses de l’aérospatiale du Québec, section locale 712 v Bombardier Aéronautique inc. decision that we have just summarized is currently the subject of an appeal for judicial review. We will keep an eye on this matter and keep you informed of any developments.
 2022 QCTA 347. Appeal for judicial review, 2022-08-09 (C.S.) 500−17−121966−223
 For the purposes of this article, we will not deal with the portion of the decision concerning the second grievance filed by the union, which challenged the employer’s decision to require employees who were called back to work after the individual notice period had ended to repay a portion of the individual notice received. This second grievance was dismissed by the arbitrator on the basis of unjust enrichment.
 Please refer to sections 84.0.4 and 84.0.13 of the ALS.
 Please refer to section 84.0.13 (3) of the ALS.
 Section 1470 of the Civil Code of Quebec defines “force majeure” as an unforeseeable and irresistible event.
 This exception is not found in the ALS at the individual notice level.
 2021 CanLII 121101
 2020 QCTA 644