On April 19, 2024, the Supreme Court of Canada rendered a highly anticipated decision in which it concluded that the fact that the Labour Code¹ (the Code) denies a first-level managers association the right to obtain a union certification is not unconstitutional². To fully appreciate the significance of this decision, it is important to understand the procedural history of this case and its broader context.

In 2009, the Association des cadres de la Société des casinos du Québec (the Association) sought certification to represent certain first-level managers at Société des casinos du Québec inc. (the Company). The Company opposed the request, contending that these managers did not fall within the definition of "employee" as outlined in the Code and that giving them the right to obtain union certification would put managers at risk of having potential conflicts of interest. In an interlocutory decision, the Tribunal administratif du travail (the TAT) ruled that excluding managers from the purview of the Code was unconstitutional, asserting that such exclusion infringed their freedom of association, as guaranteed by section 2(d) of the Canadian Charter of Rights and Freedoms³ (the Canadian Charter) and by section 3 of the Québec Charter of Human Rights and Freedoms⁴ (the Québec Charter). Subsequently, the Company sought a judicial review of this decision, and the Superior Court granted the application, affirming the validity of the exclusion of managers from the Code’s definition of "employee." In response, the Association appealed this decision to the Court of Appeal, which overturned the Superior Court's ruling and reinstated the original decision of the ALT.

The Supreme Court of Canada’s decision

The crux of the Supreme Court’s decision hinged on the constitutionality of section 1(l)1 of the Code, which broadly defines "employee" as "a person who works for an employer and for remuneration," but explicitly excluding a person who is employed "as manager, superintendent, foreman or representative of the employer in his relations with his employees." Only an association of "employees" is eligible for certification and labour standards protections, including the right to engage in collective bargaining. This includes the right for an association to make collective representations to the employer that the latter must take into consideration in good faith, freedom of choice in selecting representation and the right to strike.

Justice Jamal, supported by Justices Karakatsanis, Kasirer and O'Bonsawin, established that any court that has to determine whether a law or government action violates section 2(d) of the Canadian Charter⁵ must first determine if the activities fell within the scope of the freedom of expression guarantees and secondly, if government actions substantially impeded (by its purpose or effect) said activities.

Applying this framework, the majority⁶ found the Association's claim involved activities that were guaranteed by section 2(d) of the Canadian Charter. These include the right to form an association with sufficient independence from the employer, presenting demands collectively to the employer and ensuring these demands are considered in good faith.

Secondly, the majority concluded that the legislative exclusion did not substantially  interfere with the associative rights of the managers. In this case, the managers had successfully formed an association recognized by the Company. The Company also agreed to consult the Association before setting or modifying working conditions of these managers. For the majority, these elements demonstrate that the legislative exclusion provided for in section 1(l)1 of the Code does not substantially hinder the right of management employees to engage in collective bargaining and that they remain able to associate and bargain collectively with their employer. In the end, all Supreme Court judges (both majority and minority) concurred in allowing the appeal and overturning the decision of the ALT.  

Furthermore, it is worth noting that the majority judges reiterated that the legislator's intent behind the exclusion of managers from the definition of “employee” was to preserve their loyalty, prevent conflicts of interest and all interference and ensure that employers can be confident that managers truly represent their interests.

The decision is not only important because of the conclusions of the judgment or the reasons given by the majority. On the contrary, the concurring reasons of Justice Côté, supported by Chief Justice Wagner and Justice Rowe’s additional reasons, addressed administrative and constitutional law matters.

Justice Côté clarified the standard of review applicable in such situations, which all judges (both majority and minority) agree with. She is of the opinion that the standard of correctness should apply to findings of law, given that they are part of an analysis of a constitutional issue. As for findings of mixed fact and law, Justice Côté is of the opinion that the standard of correctness must also apply. Indeed, she highlighted that there is no reason that the ALT findings would be owed deference, since the constitutional questions that the ALT had to answer are too important. Showing a high level of deference could have the impact of undermining judicial efficiency and public confidence in the judicial system.

For Justice Côté, it is important to define the nature of the Association's claims, as she considers that its positive or negative nature can influence the applicable analytical framework. As a reminder, positive claims require the government to act in certain ways, while negative claims require the government to refrain from acting in certain ways. In this case, Justice Côté concluded that this was a positive claim that the government agrees to include managers in the Code's particular statutory regime.

On this point however, Justice Côté (and with her Chief Justice Wagner; Justice Rowe concurred, but in his own reasons) is in the minority, since the majority of the four judges did not accept the idea that it would be appropriate to systematically distinguish between claims of a positive or negative nature when analyzing freedom of association. In this respect, the majority is aware that the situation will be different under section 2(d) of the Canadian Charter and under section 2(b) in relation to freedom of expression, the latter cases drawing a clear distinction between positive and negative rights to freedom of expression. Ultimately, the takeaway is that the Charter rejects a rigid application of the dichotomy between positive and negative rights, a lesson by the Supreme Court that has a good chance of setting a precedent in the country (even if it only comes from a majority of four judges for the time being).

Returning to Justice Côté's concurring opinion, she presents an interesting analysis of the jurisdictional dimension of the case namely: the remedial power of the ALT to hear the Association's contestation and the impact of bringing the action before the ALT rather than the Superior Court when applying the analytical framework. In this case, the Association's choice to proceed by way of a motion for accreditation shows that its objective is for its members to be subject to the Code's collective labour relations regime. This choice implies that the Association's objective was not to obtain a formal declaration of unconstitutionality from the Superior Court. Justice Côté reminded us that the appropriate remedy for a positive claim is a suspension of a declaration of unconstitutionality. However, the ALT does not have the power to issue such a declaration. This shows that the Association and its members are claiming access to a particular statutory regime, specifically the one provided by the Code. Consequently, Justice Côté considers that the first analytical criterion is not met, since the Association's claim is not based on freedom of association, but rather on access to a particular labour relations statutory regime, namely the Code. This aspect of the decision shows that the procedural vehicle used by a party to obtain a declaration of unconstitutionality is important and that it is a lesson that will certainly also set a precedent regarding the general rights and freedoms guaranteed by the Charter.

1. RLRQ c C-27↩
2. Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13. ↩
3. Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.↩
4. RLRQ c C-12.↩
5. And by implication, art. 3 of the Québec Charter. ↩
6. In addition to the majority opinion of the four judges, the reasons include two concurring opinions: from Chief Justice Wagner and Justice Côté, on the one hand, and from Justice Rowe, on the other.↩