New labour relations legal landscape on the horizon following Appeal Court decision

A new legal landscape governing labour relations may be in the horizon in Quebec following a Court of Appeal decision that found that the provincial Labour Code breached the Canadian and Quebec Charters by prohibiting first-level managers from unionizing.

“It’s a very important decision because it kind of creates a crack in the legislative scheme that we have in Quebec with regards to labour relations,” said Shwan Shaker, a labour and employer senior associate with Borden Ladner Gervais LLP. “It’s kind of opening a breach to allow low level managers to unionize. But it’s important to keep in mind that this is really case-by-case.”

In a decision welcomed by labour, the Appeal Court found that the exclusion of management personnel from the definition of employee under s. 1(l)(1) of the Labour Code (Code), effectively banning managers from unionizing, unduly infringed on the freedom of association of members of the Association des cadres de la Société des Casinos du Québec, an organization that represents Casino front-line managers. The Quebec government has been granted a grace period of 12 months to introduce changes that will allow first-level management personnel working for the Société des Casinos du Québec to unionize.

“It was always pretty obvious to me that as a matter of law that the exclusion of managers from the definition of employee with the Labour Code was unconstitutional in light of jurisprudence from the Supreme Court of Canada since 2008,” particularly following the seminal 2015 decisions in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3, and Saskatchewan Federation of Labour c. Saskatchewan, 2015 CSC 4, [2015] 1 R.C.S. 245, said Finn Makela, a law professor at the Université Sherbrooke specializing in labour and employment law.

According to Jean-Luc Dufour, a Quebec City labour lawyer with Poudrier Bradet Avocats who successfully plead the case, the “Appeal Court underlined that we should take into account the evolution of the concept of freedom of association and that the exclusion of managers, superintendents, and foremen, from the Labour Code is a throwback from the industrial era. Labour relations have changed.”

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This story was originally published in The Lawyer’s Daily.

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