Recently, the Supreme Court of Canada granted the application for leave to appeal by the Société des casinos du Québec Inc. (hereinafter the “Employer”), represented by Loranger Marcoux, to decide an important constitutional question:
Will front-line managers have the right to unionize in Quebec under the Labour Code?
The legal history of this case dates back to 2009, when the Association des cadres de la Société des casinos du Québec (hereinafter the “Association”) filed a motion for certification before the Commission des relations du travail (now the Administrative Labour Tribunal, hereinafter the “ALT”) to represent the Company’s entry-level managers and to negotiate their work conditions.
In the same legal proceeding, the Association asked the ALT to declare the exclusion of managers from the definition of “employee” in the Labour Code to be constitutionally unenforceable, since it infringes, according to the Association, on the freedom of association guaranteed by the Quebec and Canadian Charters of Human Rights and Freedoms (hereinafter the “Charters”).
The Employer contests the Association’s position: the right to association does not include the right to certification. Moreover, the exclusion of managers from the definition of “employee” in the Labour Code does not substantially interfere with the exercise of the freedom of association. The Association is not deprived of the right to form, to negotiate or to represent its members. Rather, from the Employer’s point of view, the Association is claiming a specific labour relations regime, which is not protected by the freedom of association.
After analyzing the file and both parties’ arguments, the ALT concluded that the exclusion of front-line managers from the definition of employee in the Labour Code constitutes a substantial obstacle to the freedom of association protected by the Charters. In particular, the ALT stated that the impugned provisions deprive front-line managers of adequate protections in their interactions with their employers. It creates a substantial impediment to their ability to engage in meaningful collective bargaining.
Furthermore, according to the ALT, the exclusion deprives managers of any protection against employer interference with their associational activities. The omission places managers in an awkward position in their power dynamic with the employer by preventing managers from negotiating significant terms and conditions of employment. It deprives managers of the right to strike and does not allow for recourse to a specialized tribunal in the event of a breach of the right to negotiate terms and conditions of employment in good faith. This impediment could not be justified. The ALT judged that the exclusion of managers from the definition of “employee” is constitutionally inoperable.
The Employer appealed this decision to the Superior Court, which overturned the decision of the ALT and declared the exclusion of the Employer’s front-line managers from the definition of “employee” provided for in the Labour Code to be constitutional.
The Association then asked the Court of Appeal to intervene.
The Court of Appeal overturned the Superior Court’s judgment and reinstated the decision of the ALT. It was on the basis of this judgment that the Employer filed an appeal to the Supreme Court of Canada.
The Supreme Court of Canada
The Supreme Court agreed to hear the case. This means that the Supreme Court will have to rule on the constitutionality of the exclusion of executives from the definition of “employee” in the Labour Code. In other words, the Supreme Court will have to determine whether the exclusion of first-level managers from the possibility of unionizing under the Labour Code in Quebec constitutes a violation of freedom of association in the sense in which this freedom of association has been interpreted and applied over the years by this same Court.