Procedural history

Although the procedural history of this case is complex and winding, it suffices for our purposes to confine ourselves to the following facts. The Société des casinos du Québec inc. (the Employer) is a Crown corporation with five or more levels of management. In 2009, the Association des cadres de la Société des casinos du Québec (the Association) filed a request for certification to represent certain “first-level” executives, namely operations supervisors (SDO). The Employer opposes this request, citing in particular that executives are excluded from the concept of "employee" provided for in the Labour Code¹ (the Code) and that giving such status to these individuals would place them in a conflict of interest.

In an interlocutory decision, the Administrative Labour Tribunal (the TAT), rejecting this plea, declared constitutionally ineffective the exclusion of executives from the application of the Code, on the grounds that this exclusion infringes on their freedom of association guaranteed by paragraph 2(d) of the Canadian Charter of Rights and Freedoms (the Canadian Charter) and by section 3 of the Charter of Human Rights and Freedoms (the Québec Charter) (the Charters).

The Employer is appealing for judicial review of this decision and the Superior Court allows the appeal. It declares “applicable, valid and operative” the exclusion of executives from the concept of “employee” provided for in the Code.

In turn, the Association is appealing this last decision before the Court of Appeal.

The decision of the Court of Appeal

According to the analytical framework applicable in such matters, the Court first had to determine whether the definition of "employee" provided for in the Code, which automatically excludes any person holding a management position², violates the freedom of association guaranteed to members of the Association by the Charters. If so, the Court of Appeal then had to decide whether this infringement is justified on the basis of the test developed in the Oakes³ decision

As part of its analysis, the Court takes into account the recent case law of the Supreme Court of Canada on the scope and purpose of the freedom of association guaranteed by the Charters.
After having briefly reviewed the legislative history and the comments made during the parliamentary debates surrounding the exclusion of executives from the definition of "employee" in the labour relations system established by the Code, the Court welcomes the appeal and restores the decision of the TAT declaring inoperative, in the case of SDOs, the paragraph of the Code which excludes executives from the definition of "employee", since it considers that, in their case, this provision constitutes a substantial and unjustified hindrance to their freedom of association.

As a result of this decision, and although it is recognized by all that they are executives within the meaning of the Code, SDO members of the Association will be able to benefit from certain rights protected by freedom of association, in particular the right to collectively negotiate their working conditions, to go on strike and to have access to a tribunal specializing in labour law.

On another note, given the potential effect of its decision on the Québec labour relations regime for executives in general, the Court deemed it appropriate to suspend for a period of 12 months the inoperative nature of the exclusion of executives from the application of the Code. This period of suspension will certainly allow the legislator to assess the possible solutions, including in particular the amendment of the Code in order to specify the categories of executives excluded from the legal regime governing collective labor relations, as is already the case in several other Canadian provinces.

Finally, let us mention that the Court of Appeal followed the line of thought of several authors according to which "the two essential and distinctive categories of the time, that is 'the workers and the management; those who obey and execute, on the one hand, and those who command, at whatever level, on the other hand,' have undergone significant changes and are today more diffuse. However, the exclusion of all levels of executives from the definition of "employee" in article 1l)1° Ct maintains this traditional conception of labour relations⁴.”

It is obvious that the repercussions of this judgment are crucial and go beyond the situation of the litigants since it decides a constitutional question that has been the subject of a long-standing debate. It's safe to say that this legal saga will continue before the highest court in the country. We will monitor very closely the impact of this decision at both the legislative and jurisprudential levels in the coming months.

To read the full text of the Québec Court of Appeal's decision, visit CanLII.

¹ CQLR c C-27
² The exact language used in the Code to designate officers is “a person employed as a manager, superintendent or foreman or as a representative of the employer in relations between employers and employees.”
³ Both the Canadian Charter and the Québec Charter include a provision affirming the non-absolute nature of fundamental rights. In R. v. Oakes, the Supreme Court developed a test to determine in what circumstances an infringement of a fundamental right may be justified under these provisions. According to this test, the restriction must first be motivated by “an objective related to concerns which are pressing and substantial in a free and democratic society,” and secondly, it must be shown “that the means chosen are reasonable and demonstrably justified.”
⁴ Para 3.