In a recent Judgement[1], the Court of Appeal overturned a Decision of the Superior Court[2] to confirm the constitutionality of the bargaining regime for intermediate and family-type resources.
The Court of Appeal specifically concluded that the prohibition on striking imposed on these resources, as well as other restrictions on their collective bargaining, did not violate the Canadian and Quebec Charters.
The context
The Judgement of the Court of Appeal concerns the validity of certain articles of The Act respecting the representation of family-type resources and certain intermediate resources and the negotiation process for their group agreements[3] (the “ARR”). This law establishes the collective bargaining regime for the intermediate and family-type resources (the “Resources”) as defined in the Act respecting health services and social services[4] (the “AHSSS”). According to the Resources, certain articles of the ARR hinder their freedom of association and violate the Charters.
The Superior Court’s Judgment
The Superior Court declares that Articles 46 and 53 of the ARR are unconstitutional as they prohibit the Resources of their right to strike, replacing this right with a dispute resolution mechanism.
The Superior Court considers that the prohibition on collective bargaining aspects related to remuneration and the duration of specific agreements constitutes a substantial infringement on the right to collective bargaining, as these elements are essential working conditions. Furthermore, Article 37, paragraph 2 of the ARR, which prohibits specific agreements between the Resources and health institutions, has a significant impact on the bargaining power. Thus, while the Resources are qualified as service providers (according to Articles 2098 and 2099 of the Civil Code of Quebec[5]), their status as isolated and vulnerable individuals would justify the application of the collective bargaining regime, including their right to strike.
As a result, the Superior Court declares paragraphs 33 (1) and 37(2) of the ARR (in combination with Articles 55, 62, and 63 of the ARR), unconstitutional, as they are unjustified in a free and democratic society.
Finally, the Superior Court suspends the effects of its declarations of unconstitutionality for one year, in order to allow the state to examine possible solutions.
The Judgment of the Court of Appeal
The Court of Appeal examines the extent of the right to freedom of association granted to employees by the Charters and the differences applicable to service providers.
In other words, the Court of Appeal analyzes whether the Resources, as service providers, can claim the specific right to a collective bargaining process, similar to that of employees. The Court of Appeal concludes that the right to strike does not apply to the Resources (service providers), as this right is intended to protect employees who are subject to a relationship of subordination with their employer, a relationship that does not exist for service providers.
The argument that the Resources, as vulnerable individuals, should be protected was not accepted by the Court of Appeal.
The Court of Appeal emphasizes that under the ARR, the Resources have the freedom of association and, consequently, even without the right to strike, they can effectively assert their claims.
[1] Procureur général du Québec v. Centrale des syndicats démocratiques (CSD), 2025 QCCA 216.
[2] Centrale des syndicats démocratiques (CSD) v. Procureur général du Québec, 2022 QCCS 1468.
[3] CQLR, c. R-24.0.2.
[4] CQLR, c. S-4.2.
[5] RLRQ, c. CCQ-1991.
