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Divided Supreme Court clears Wal-Mart in union-busting accusations

November 28, 2009

After organizing the first Wal-Mart store in North America, the United Food and Commercial Workers Union, Local 503 was unable to reach a collective agreement with the employer. Quebec’s Minister of Labour referred the matter to arbitration. That same day, Wal-Mart announced that it would close the store, located in Jonquiere, Quebec.

On of the allegations was that Wal-Mart closed the store because employees had exercised their right to organize under the Quebec Labour Code. The employees relied on sections 15 to 17 of the Code, which contain a reverse onus provision that requires an employer to prove that it did not impose sanctions on an employee because the employee exercised rights under the Code. Wal-Mart claimed that it closed the store for business reasons, and not because employees joined a union.

On November 27, 2009, a majority of the Supreme Court of Canada held that the employees had relied on the wrong sections of the Code. Sections 15 to 17 cannot be used by employees to claim a remedy against an employer who closes a business for anti-union reasons, the Court said, since those sections are not meant to be used in cases where a workplace no longer exists. Rather, the claim ought to have been made under the unfair labour practice provisions in sections 12 to 14 of the Code.

Three judges dissented from the decision. They held that the majority’s decision was overly technical, was a marked and arbitrary departure from the philosophical underpinnings, objectives and general scope of the Code, and allowed Wal-Mart to avoid scrutiny for its actions.

In its report on the case, the Globe and Mail quoted Steven Barrett, who represented the intervener Canadian Labour Congress in the appeal:

…[T]he ruling [is] “a short-term, narrow, technical victory for Wal-Mart, and a disappointing result for the Quebec workers… The union just proceeded under the wrong provision of the code.” Mr. Barrett said the irritation of the minority judges was understandable. “They viewed it as a very technical interpretation by the majority that was out of step not only with law in the rest of the country, but with the language and purpose of Quebec’s labour code.”



Steven Barrett

Practice Areas

Labour Law