Exclusion of front-line managers from collective bargaining legislation does not violate Charter‘s guarantee of freedom of association, Supreme Court of Canada rules — Lancaster House Summary with academic commentary on the implications of the Supreme Court’s decision in the Quebec Casinos case
Lancaster House is pleased to inaugurate a new service which will form part of our First Resort resource. It will provide analysis of major decisions by distinguished Canadian academics. Our first Special Report reviews the Supreme Court of Canada’s decision in the recent Quebec Casinos case. Academic commentators include Professor Eric Tucker and Professor Brian Langille.
The Facts:
The Quebec Casino Corporation (the Société des casinos du Québec), a subsidiary of the Quebec Lottery Corporation (Loto-Québec), operated four casinos in Quebec, including the Montreal Casino. Within the management structure of the games section at the casino, the lowest rank of manager was the operations supervisor, who oversaw the unionized croupiers, ensured the smooth running of the casino’s operations, monitored adherence to game rules, and dealt with customer relations.
In 1997, the managers formed an association that, by 2001, was known as the Association des cadres de la Société des Casinos du Québec (ACSCQ, or the Association), which sought to represent all of the Société’s front-line managers at each of its casinos. In 2001, the Association and the Société entered into a memorandum of understanding (MOU), under which the Société agreed to recognize the Association as the representative of operations supervisors for labour relations purposes, deduct dues from the Association’s members on its behalf, grant time off to the Association representatives for Association duties, consult with the Association on changes to working conditions, and provide a list of front-line managers once a year. The MOU did not incorporate any working conditions or provide for a dispute resolution process, nor did it constitute a voluntary recognition of the Association for the purposes of the Quebec Labour Code.
Over the following years, the Société refused repeated requests by the Association to expand the scope of its constituency to include all of the Société’s front-line managers and to permit the Association to make presentations about its activities during the training of new managers. In June 2004, the Société released a new employee handbook including several terms and conditions that had previously been requested by the Association, but it did not consult with the Association about the handbook before its release. Likewise, the Association was not consulted about annual salary increases, or about changes to the Société’s bonus scheme.
On November 10, 2009, the Association applied to the Quebec Labour Relations Board (the Commission des relations du travail, or CRT) for certification to represent a bargaining unit consisting of the front-line managers. The Société objected to the certification application on the basis of the managerial exclusion in s.1(l)(1) of the Code, which excludes anyone who, in the opinion of the Labour Tribunal,” is employed as a “manager, superintendent, fore[person] or representative of the employer in [its] relations with [its] employees” from the definition of “employee” for the purposes of the Code. In response, the Association challenged the constitutionality of the exclusion as violating the managers’ right to freedom of association, enshrined in s.2(d) of the Canadian Charter of Rights and Freedoms and s.3 of the Quebec Charter of Human Rights and Freedoms.
Case History:
Labour Tribunal finds Charter violation
In a 102-page decision dated December 7, 2016, 2016 QCTAT 6870 (CanLII), reviewed in Lancaster’s Labour Board Law, eAlert No. 104, August 22, 2017, the Quebec Administrative Labour Tribunal (ALT), which assumed the Labour Relations Board’s functions in 2016, held that the managerial exclusion violated the managers’ right to freedom of association under the Canadian and Quebec Charters. Citing Supreme Court of Canada caselaw on the scope of s.2(d), including Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1 (CanLII), reviewed in Lancaster’s Human Rights in Employment, eAlert No. 255, April 9, 2015, Administrative Judge Irène Zaïkoff held that the exclusion in section 1(l)(1) of the Quebec Labour Code amounted to substantial interference with employees’ right to engage in meaningful collective bargaining in violation of both the Canadian and Quebec Charters. She noted that, without certification under the Code, the Association did not enjoy sufficient institutional independence from the employer as the managers had no right to make submissions to the employer or to have those submissions taken into consideration, had no recourse to an independent mechanism to enforce the MOU or to require the Société to bargain in good faith, and their right to strike was not protected by legislation even though they had no alternative means of resolving a bargaining impasse. Zaïkoff also ruled that the managerial exclusion in section 1(l)(1) was not justified as a reasonable limit on freedom of association under s.1 of the Canadian Charter and s.9.1 of the Quebec Charter.
Superior Court judge reverses, finds no Charter violation
The Société applied for judicial review of the Labour Tribunal’s decision, and the certification proceeding was stayed pending the outcome. In a decision dated November 5, 2018, 2018 QCCS 4781 (CanLII), reviewed in Lancaster’s Labour Board Law, eAlert No. 128, May 6, 2019, Quebec Superior Court judge Chantal Lamarche quashed the Labour Tribunal’s decision, holding that the exclusion of managers from the collective bargaining rights granted to employees under the Code did not violate s.2(d) of the Charter of Rights or s.9 of the Quebec Charter of Human Rights and Freedoms.
Applying a standard of correctness, Lamarche took the view that, because the instant case concerned an alleged failure on the part of the government to legislate to protect the Association members’ right to freedom of association, the analytical framework to be applied in determining whether that right was infringed was the test developed by the Supreme Court of Canada in Dunmore v. Ontario (Attorney General), 2001 SCC 94 (CanLII) (reviewed in Lancaster’s Collective Bargaining, November/December 2001), which concerned the exclusion of farm workers from the Ontario Labour Relations Act. She set out the test under Dunmore as requiring the Association to establish that:
- the remedy sought by the managers was connected to freedom of association itself, rather than to a specific model of labour relations;
- the managerial exclusion had the purpose or effect of substantially interfering with managers’ ability to pursue activities protected by their right to freedom of association, such as choice of a bargaining agent, meaningful collective bargaining, or the right to strike; and
- the government was responsible for the managers’ inability to pursue those protected activities.
In Lamarche’s view, the Labour Tribunal had erred (i) in concluding that the purpose of the exclusion of managers from the Code was to deprive them of the right to meaningful collective bargaining rather than to maintain the confidence of the employer in its managers and avoid conflicts of interest, and (ii) in concluding that the labour relations arrangements for the Association members amounted to substantial interference. While Lamarche acknowledged that the employer was not committed to undertaking even a minimal level of consultation, and that this resulted in a limitation on the managers’ ability to meaningfully pursue collective bargaining which rose to the level of substantial interference, she held that this interference arose not from action or inaction by the government, but rather from the Société’s actions. In this regard, Lamarche had regard to the fact that other associations of managers in Quebec had successfully negotiated agreements concerning working conditions, which indicated that the exclusion in s.1(l)(1) of the Code was not the cause of the substantial interference with members’ associational rights. She further found that the Labour Tribunal had erred in concluding that the managers had been deprived of the right to strike, given that there was no legal prohibition against strike activity, nor was it clear that they would be without legal protection if they chose to strike.
In the result, Lamarche quashed the decision of the Labour Tribunal, declaring that the exclusion of managers from collective bargaining under the Quebec Labour Code was constitutionally valid. The Association appealed the judgment to the Quebec Court of Appeal.
Court of Appeal reverses Superior Court’s decision, finds Charter violation
In a unanimous decision, dated February 8, 2022, 2022 QCCA 180 (CanLII), reviewed in Lancaster’s Labour Board Law, eAlert No. 155, June 30, 2022, the Quebec Court of Appeal allowed the appeal and restored the decision of the Labour Tribunal. Disagreeing with the Superior Court judge’s conclusion that the Dunmore test applied, the appellate court held that the appropriate reference point was the “substantial interference” test under the Mounted Police case, under which “substantial interference” with meaningful collective bargaining occurs where (1) legislation affects a matter or right that is of central importance to the ability of workers to pursue their common workplace goals; and (2) the manner in which that matter or right is affected impairs good faith consultation. The Court held that Lamarche had ignored the Labour Tribunal’s conclusion that, in the absence of a mechanism for enforcing the employer’s duty to bargain in good faith, Association members did not have access to meaningful collective bargaining, and that she had erred in determining that, because managers were not subject to an explicit prohibition against striking under the Code, their right to strike, which was vital to protecting a meaningful process of collective bargaining, was not infringed. In the view of the Court of Appeal, the managerial exclusion constituted a substantial interference with managers’ s.2(d) rights. The Court of Appeal also endorsed the Labour Tribunal’s determination that the government had failed to establish any justification for the managerial exclusion as a reasonable limit under s.1 of the Charter, as the “outright exclusion of all levels of managers” could not be regarded as minimally impairing their associational rights. In the Court’s view, the proposition that a blanket exclusion of managers was overbroad was supported by the position in several other provinces, including Ontario, where the exclusion of those exercising “managerial functions” under the Labour Relations Act did not apply to junior managers performing supervisory work, and Manitoba, where the Labour Relations Act excluded only managers who “primarily” performed management functions.
The Court of Appeal restored the Labour Tribunal’s decision, declaring that s.1(l)(1) of the Code was unconstitutional. However, it suspended the effect of the declaration for 12 months, given the impact of the decision on the parties, managers generally, and the system of labour relations in the province.
Both the Quebec government and the Société obtained leave to appeal the Court of Appeal’s decision to the Supreme Court of Canada.
The Supreme Court’s Decision:
No substantial interference with Charter rights, Supreme Court finds
In a 7–0 decision, the Supreme Court of Canada allowed the appeal, ruling that the exclusion of managers from the definition of “employee” in the Quebec Labour Code, and therefore from collective bargaining rights, did not substantially interfere with the managers’ freedom of association under the Canadian and Quebec Charters. While the outcome of the case was not affected, the Court was divided (4–3) on the proper legal framework to apply to s.2(d) claims involving underinclusive legislation, such as legislative exclusions from collective bargaining rights.
Two-part section 2(d) test requires proof of substantial interference with protected activities
Writing the majority decision on behalf of four members of the Court (Jamal, Karakatsanis, Kasirer, and O’Bonsawin), Justice Mahmud Jamal began his analysis by reviewing the Court’s jurisprudence on s.2(d) of the Canadian Charter of Rights since its seminal decision in Dunmore in 2001, which concerned the exclusion of agricultural workers from collective bargaining rights under Ontario’s labour relations legislation. Jamal observed that, since Dunmore v. Ontario (Attorney General), cited above, the Court has consistently applied a two-part “substantial interference” test for evaluating whether legislation or government action infringes s.2(d) of the Charter, regardless of whether the challenging party is addressing underinclusive legislation and seeking positive intervention from the government, or seeking protection against government interference. The two-part framework “examines first, whether activities fall within the scope of the freedom of association guarantee, and second, whether the government action interferes with the protected activities in purpose or effect.”
Distinction between positive and negative rights deemed untenable, majority opines
Rejecting any rigid distinction between “positive” and “negative” rights in determining claims under s.2(d) of the Charter, Jamal grounded his views in the evolution of the Court’s s.2(d) jurisprudence, tracing it from Dummore to Health Services Bargaining Assn. v. British Columbia, 2007 SCC 27 (CanLII), reported in Lancaster’s Human Rights in Employment, eAlert No. 90, August 16, 2007, and then to Ontario (Attorney General) v.Fraser, 2011 SCC 20 (CanLII), a case which concerned the constitutionality of the labour relations regime for agricultural workers introduced in Ontario in response to the Supreme Court’s decision in Dunmore.
Addressing the conceptual difficulties of such a distinction in the context of s.2(d) of the Charter, Jamal explained:
In Fraser…the majority reaffirmed the framework in Dunmore and Health Services. Fraser concerned the constitutionality of a separate labour relations regime in Ontario for agricultural workers introduced in response to Dunmore. The regime protected the rights of agricultural workers to associate and to make collective representations to their employer but did not include other collective bargaining rights available under the general labour relations regime.
The majority in Fraser affirmed that substantial interference can arise from legislative interference or exclusion from a legislative scheme. McLachlin C.J. and LeBel J. wrote that “[i]f it is shown that it is impossible to meaningfully exercise the right to associate due to substantial interference by a law (or absence of laws: see Dunmore) or by government action, a limit on the exercise of the s. 2(d) right is established” (para. 47). They also underscored that s. 2(d) does not guarantee access to a particular model for exercising associational freedoms (at para. 45) and that substantial interference must flow from state action rather than from the actions of private employers (para. 73).
The majority in Fraser cautioned that a “bright line between freedoms and rights seems . . . impossible to maintain” (para. 67) and highlighted that this Court “has consistently rejected a rigid distinction between ‘positive’ freedoms and ‘negative’ rights in the Charter” (para. 69). In the majority’s view, “[a] purposive protection of freedom of association may require the state to act positively to protect the ability of individuals to engage in fundamentally important collective activities” (para. 70). As an example, the majority noted that “individuals have a right against the state to a process of collective bargaining in good faith, and that this right requires the state to impose statutory obligations on employers” (para. 73, commenting on Health Services).
Three factors in Dunmore are relevant, but within framework of two-part test, majority declares
Referencing the further development of the Supreme Court of Canada’s s.2(d) jurisprudence in Mounted Police and Saskatchewan Federation of Labour, Jamal explained that, while the three factors set out in Dunmore for considering whether underinclusive legislation infringes s.2(d) continue to be relevant, these are to be considered within a two-part framework:
To sum up, this Court’s s.2(d) jurisprudence reveals that the Court has consistently applied a two-part framework that examines whether activities fall within the scope of s.2(d) and whether government action has substantially interfered with those activities, in purpose or effect. This Court has also highlighted that its s.2(d) jurisprudence since Dunmore should be viewed as a consistent body of case law.
Dunmore was not overturned by this Court’s decisions in Mounted Police or Fraser [Ontario (Attorney General) v. Fraser, 2011 SCC 20 (CanLII)]. Nor does this Court’s jurisprudence create two tests, one for claims seeking positive intervention from the state and another for claims seeking negative protection against state interference. Although the Dunmore factors have not been identified and analyzed each time the Court has been asked to determine whether legislation or government action infringed s.2(d) of the Charter, the underlying principles have been consistently reaffirmed. These principles, or Dunmore factors, circumscribe the possibility of successfully challenging underinclusive legislation, but they do not constitute a separate test. Rather, they provide guidance to ensure the analysis is focused on determining whether legislation or government action substantially interferes in purpose or effect with the claimant’s ability to engage in activities within the scope of s.2(d).
Rejecting the notion that Dunmore and subsequent decisions established “a higher threshold for establishing an infringement of s.2(d) in claims seeking state intervention,” Jamal reasoned that, while “it may be harder for a claimant to meet their burden of proof when challenging underinclusive legislation or when seeking state intervention… In all cases, the threshold for proving an infringement of s.2(d) is substantial interference.” He opined:
Nor does Dunmore establish a higher threshold for establishing an infringement of s. 2(d) in claims seeking state intervention. In all cases, the threshold for proving an infringement of s. 2(d) is substantial interference. This threshold was first explained in Dunmore (at para. 25) and has been consistently applied in this Court’s subsequent s. 2(d) jurisprudence (Health Services, at paras. 19 and 90; Fraser, at paras. 2 and 47; Mounted Police, at para. 72; Meredith, at paras. 4 and 24-25; Saskatchewan Federation of Labour, at paras. 2 and 25).
It may be harder for a claimant to meet their burden of proof when challenging underinclusive legislation or when seeking state intervention since, as noted above, the effects of underinclusive legislation can be hard to disentangle from other factors. As this Court noted in Dunmore, it will be in “unique contexts” that underinclusive legislation amounts to substantial interference (para. 22). In all cases, however, the threshold to establish an infringement of s. 2(d) remains substantial interference. A claimant alleging that underinclusive legislation infringes s. 2(d) need not meet an elevated threshold.
Association fails test, did not prove substantial interference, Court rules
Applying these principles to the facts before the Court, based on a standard of correctness, Jamal accepted that the Association’s claims involved activities protected under s.2(d) of the Charter, and did not seek access to a particular regime, opining that “the Association’s claim is made to allow its members to exercise their right to a meaningful collective bargaining process, which … exists independently of the Labour Code as part of the associational activities protectedunder s. 2(d).”
However, Jamal held that the Association failed at the second step of the test, determining that the legislative exclusion did not substantially interfere with the members’ s.2(d) activities in purpose or effect. In this respect, he found that the purpose of the legislative exclusion was not to interfere with managers’ associational rights, but to “avoid placing managers in a situation of conflict of interest between their role as employees in collective bargaining and their role as representatives of the employer in their employment responsibilities.” As well, he held that the Association had not demonstrated that the effect of the exclusion was to substantially interfere with its members’ rights to meaningful collective bargaining given that, under the MOU, the Association’s members were able to associate and collectively bargain with the employer outside the scope of the Code. Observing that, “[c]ontrary to the conclusions of the [Labour Tribunal] and the Court of Appeal, the voluntary nature of the Société’s recognition of the Association and the consultation framework is not in itself a substantial interference with the right to meaningful collective bargaining,” Jamal quoted the Court’s statement in the Mounted Police case that “nothing in the Charter prevents an employee association from engaging willingly with an employer in different, less adversarial and more cooperative ways.” In Jamal’s words:
The Société, as a government corporation, must respect the Canadian Charter. It must also respect the Quebec Charter. Although the record shows that the Société has neglected to properly respect the memorandum of understanding at times, the Association can seek remedies in court for any substantial interference with its members’ right to meaningful collective bargaining, including their right to strike, which is protected under s. 2(d) even without an enabling legislative framework…. [W]ithout evidence on the record that these remedies are inadequate, the Court of Appeal and the [Labour Tribunal] could not conclude that the lack of access to a specialized dispute resolution mechanism or legislative protection of the right to strike causes a substantial interference with the members’ freedom of association. The right to meaningful collective bargaining does not guarantee access to a particular model of labour relations….
Finally, Jamal also held that the Société’s failure to respect the MOU or negotiate in good faith was due to its own actions, and was not a direct result of the legislative exclusion, opining that “[u]nlike in Dunmore, there is no evidence that the legislative exclusion orchestrates, encourages, or sustains a violation of the fundamental freedoms of the Association’s members.”
In the result, finding that “[a]pplying the two-part substantial interference test that applies to all s.2(d) claims, … the Association has not shown that the legislative exclusion of first-level managers from Quebec’s general collective labour relations regime infringes its members’ freedom of association under s.2(d) of the Canadian Charter or s.3 of the Quebec Charter,” the Supreme Court granted the appeal, set aside the Court of Appeal’s judgment, quashed the Labour Tribunal’s decision, and declared that the managerial exclusion in s.1(l)(1) of the Quebec LabourCode applied to the Association in its application for collective bargaining rights.
Minority judges agree, but impose more demanding test for substantial interference:
While the remaining justices (Côté, Wagner, Rowe) agreed with the majority in the result, two separate opinions were written, one by Justice Suzanne Côté (with Chief Justice Richard Wagner concurring) and the other by Justice Malcolm Rowe. All three minority judges were of the view, however, that there is a meaningful distinction to be drawn between “positive” and “negative” rights, and that a three-part test was applicable.
Justice Côté agreed that the Dunmore framework remains applicable to s.2(d) Charter challenges and that in each case “substantial interference” is the applicable standard for finding an infringement. However, unlike the majority, Côté held that the framework for analyzing freedom of association varies depending on whether the party is asking the government to refrain from interfering with a protected activity or is instead seeking government action to remedy its inability to engage in that activity without support or enablement, with a three-part Dunmore framework applying in the latter situation. She observed that “[i]n such a case, the Association will have to show not only that its claim is not grounded in access to a particular regime and that there has been substantial interference with its members’ freedom of association, but also that the state, in its capacity as lawmaker, is responsible for the interference,” characterizing this last step as “an additional burden of proof to be met in order to establish an infringement of freedom of association,” in order to ensure that “courts do not unduly interfere with the exercise of legislative power and the development of public policy” as “[o]nly in exceptional circumstances can the courts require the state to legislate….”
Characterizing the Association’s claim in the instant case as a “positive rights” claim, since “[a]ny claim that seeks to eliminate the exclusion of a class of workers from the application of a general collective relations regime is essentially a claim for inclusion in a particular regime,” [emphasis in original], Côté held that the Association failed at the first stage of the three-step Dunmore framework, determining that it was seeking access to the particular labour relations regime in the Code, as evidenced by the fact that it had proceeded by way of a petition for certification under the Code rather than by challenging the exclusion before a superior court. However, Côté went on to hold that, even if this step of the Dunmore framework were satisfied, the Association’s claim would also fail at the second and third steps. With respect to the second step, she agreed with the majority’s view that the exclusion did not have the purpose or effect of substantially interfering with the freedom of association of the Association’s members. At the third step, she determined that there was “no link between the legislative exclusion being challenged and the Société’s impugned conduct, which is due to its alleged failure to comply with its contractual undertakings and which, it cannot be overemphasized, can be sanctioned by the ordinary courts.”
Justice Rowe, while agreeing with the reasons of Justice Côté, further emphasized the “fundamentally different” nature of negative and positive s.2(d) claims and the justification for an elevated burden of proof for claims seeking positive action from the government. Opining that the “three step framework in Dunmore was designed in order to identify those exceptional circumstances where legislative intervention is required despite the absence of direct state action,” he, like Côté, highlighted the extra burden imposed at the third step, noting that “[e]ven where a claimant can establish that their freedom to organize has been substantially impeded, it is still incumbent on them to link this impediment to the state, not just to private action….” Rowe further held that the elevated evidentiary threshold in the Dunmore framework ensures that the adjudication of positive claims respects the separation of powers, opining that “[i]t is not the proper role of the Court to confer constitutional status on a particular statutory regime. Labour relations regimes are a policy choice, designed to promote labour peace and bring certainty to the employment relationship, but they are not a constitutional imperative.” [emphasis in original].
Comment:
[Editors’ Note: See below for expert commentary on this case, with discussion by Lancaster House editorial staff.]
Eric Tucker is an emeritus professor at Osgoode Hall Law School, York University, where he specializes in labour and employment law. He has written extensively on its history and a wide range of contemporary issues including constitutional labour rights, occupational health and safety regulation, and employment standards. Read Professor Eric Tucker’s article here. [Note: By clicking this link, the article will be downloaded to your computer. After reading the article, return to this page to read the Discussion.] |
Brian Langille is Professor of Law at the University of Toronto. His teaching, research, and writing concentrate on labour law, labour law theory, international labour law, and constitutional labour law. He has lectured, and been a Visiting Professor, at many places in the world and his most recent major publication is The Oxford Handbook of the Law of Work (Oxford University Press, 2024 — co-edited with Davidov and Lester). Read Professor Brian Langille’s article here. [Note: By clicking this link, the article will be downloaded to your computer. After reading the article, return to this page to read the Discussion.] |
Discussion
Lancaster Editorial Staff
In the two decades that followed adoption of the Charter of Rights in 1982, the Supreme Court interpreted freedom of association in a highly restrictive manner. In what is now known as the “1987 trilogy” of cases, the Court held that freedom of association protected the right to organize a union but did not include the right to bargain collectively or the right to strike. However, in 2001, the Court’s decision in Dunmore marked a turning point in the interpretation of s.2(d). That case concerned the constitutionality of the exclusion of agricultural workers from the collective bargaining regime created by the Ontario Labour Relations Act. Writing for the majority, Justice Michel Bastarache determined that the state may be obliged in certain circumstances, as where workers are particularly vulnerable, not only to protect workers against negative legislative incursions on Charter rights, but to take positive action to safeguard the exercise of freedom of association. In particular, Bastarache held that the general framework for evaluating s.2(d) claims requires an examination of whether the purpose or effect of government action “substantially interferes” with associational activity.
Six years later, in the B.C. Health Services case, decided in 2007, the Court built on Dunmore and confirmed that s.2(d) protects “the right of employees to associate for the purpose of advancing workplace goals through a process of collective bargaining.” However, the Court stressed that s.2(d) does not protect “all aspects of the associational activity of collective bargaining”; it protects only against “substantial interference” with this activity.
In Fraser, decided in 2011, the Court was called upon to determine the constitutionality of a labour relations regime adopted by the Ontario government to meet the Supreme Court’s concerns about the legislation which had been deemed unconstitutional in Dunmore because it denied meaningful collective bargaining rights to Ontario’s agricultural workers. The majority of the Court affirmed that substantial interference can arise from legislative interference or exclusion from a legislative scheme. The majority stated that “[i]f it is shown that it is impossible to meaningfully exercise the right to associate due to substantial interference by a law (or absence of laws: see Dunmore) or by government action, a limit on the exercise of the s.2(d) right is established.” On the other hand, as noted in the instant case, the majority in Fraser cautioned that the Charter of Rights does not constitutionalize a particular labour relations regime, such as the U.S. WagnerAct (on which Canadian labour relations legislation is modelled), and concluded that Ontario’s labour legislation setting up an alternative scheme for agricultural workers, which lacked many of the protections in the Labour Relations Act, did not substantially interfere with agricultural employees’ s.2(d) associational rights, since they had the right to make representations to their employers.
In 2015, the Court decided another trilogy of labour cases, which included Saskatchewan Federation of Labour. This decision endorsed the view that freedom of association guarantees the right to participate in a meaningful process of collective bargaining and declared that freedom of association protects the right to strike. Moreover, as in the Mounted PoliceAssociation case, delivered at the same time, the Court made it clear that a violation of the Charter would occur if there was a “substantial interference” with section 2(d), even if it did not make it “effectively impossible” to exercise the freedom.
In the Quebec Casinos case, which reached the Supreme Court in 2024, the issue was whether the exclusion of managerial employees from collective bargaining rights under Quebec’s Labour Code operated as a substantial interference with collective bargaining rights protected by the guarantee of freedom of association in s.2(d) of the CanadianCharter of Rights and Freedoms. In this regard, while there appears to be a 4–3 division of opinion among the judges on the Supreme Court regarding all the components of the “substantial interference” test, there was unanimous concurrence in the result. In the Court’s view, the exclusion of managerial employees from collective bargaining rights was not designed to interfere with managers’ associational rights, but rather, to avoid placing managers in a conflict of interest between their role as employees in collective bargaining and their role as representatives of the employer in their employment responsibilities. In the majority’s view, moreover, the exclusion of frontline managers from generally applicable labour relations legislation did not prevent their association from presenting their views to the employer. Finally, the majority also held that the employer’s failure to respect its understandings with the employee association or to negotiate in good faith was due to its own actions, and was not a direct result of the legislative exclusion of management from collective bargaining since “there is no evidence that the legislative exclusion orchestrates, encourages or sustains a violation of the fundamental freedoms of the Association’s members.”
The Supreme Court’s decision in the Quebec Casinos case has come under severe criticism from leading labour law academics. Professor Eric Tucker and Professor Brian Langille, both cited by the Court in the Quebec Casinos case as authorities on labour law, are scathing in their comments, while evaluating the decision from different perspectives. Thus, Professor Eric Tucker regards the decision as moving labour law “backward” to an era when workers had freedom, but no rights. And Professor Brian Langille describes the decision as a “legal fiasco.”
In Professor Tucker’s view, the Court showed its true colours when, notwithstanding the explicit embrace of an international labour law consensus in earlier decisions, it disregarded the views of the ILO’s Committee on Freedom of Association, which in this very case had criticized Quebec for its violation of ILO Conventions 87 and 98, and when it ignored the fact that legislation enacted by the federal government and a number of provinces (including Manitoba and Ontario) allow supervisors to unionize under the general statutory regime.
Professor Tucker notes the Court’s declaration that, even if workers cannot gain access to labour boards under prevailing labour legislation, their fundamental rights can be protected by invoking the Charter of Rights directly in the courts, but he questions whether the Supreme Court will take any steps to vindicate those rights when, as Quebec Casinos demonstrates, it defines them so narrowly — giving unions only the right to be consulted by the employer, but without requiring a robust process of negotiation. In particular, if employees are free to strike, Professor Tucker asks, will the Court protect that freedom by imposing a duty on employers not to take adverse action, such as dismissal, if they do strike?
In this regard, the Court’s ruling in Quebec Casinos may be contrasted with its previous decision in 2016 upholding, without reasons, the dissenting judgment of Justice Ian Donald of the B.C. Court of Appeal who held that it was open to the courts to impose a higher standard of good faith bargaining than was required by a statute based on the Wagner Act model: see British Columbia Teachers’ Federation v. British Columbia, 2016 SCC 49 (CanLII).
For his part, while Professor Langille in his published articles does not view freedom of association as a valid basis for the enforcement of worker rights, he strongly opposes the determination of the Court to undertake the role of adjudicating labour rights under the Charter. In his view, the Court has created a “parallel universe” to that already charted by labour boards, which could lead to a “faded, partial, weak, mealy-mouth[ed] version of … the statute” or a “cut-and-paste, in a weaker form, [of] the Wagner Act Model.” In Langille’s assessment of the Court’s likely trajectory, doubtless based in part on the Court’s treatment of the casino employees, “there will not be a real duty to bargain.”
Professor Langille sees a “way out” of what he describes as a “constitutional mess” resulting from the Court’s decision in Quebec Casinos — and that is by applying the equality rights guarantee in s.15 of the Charter. However, the jurisprudential reality is that the Supreme Court has consistently shut the door to the application of equality rights to protect workers in the absence of a violation of a specifically enumerated or analogous (i.e. historically disadvantaged) ground, such as race, gender, or disability. Unless the Court radically revises its approach, as Professor Langille urges, to pursue such a course may result in workers forfeiting the protection of s.2(d), limited as it is, in the illusory hope of a judicial remedy under s.15.
Whether Professor Tucker or Professor Langille is correct, both are agreed that the decision of the Court in the Quebec Casinos case represents a dramatic change in the Court’s direction in dealing with fundamental labour law issues — in Professor Tucker’s view, driving the law “backward” or, in Professor Langille’s view, “overboard.”
Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec
Quebec
Supreme Court of Canada
Justices Mahmud Jamal, Andromache Karakatsanis, Nicholas Kasirer, and Michelle O’Bonsawin; Chief Justice Richard Wagner, Justice Suzanne Côté and Justice Malcome Rowe concurring in the result
April 19, 2024
2024 SCC 13 (CanLII)
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