Canada: The Supreme Court Of Canada Rules On Wal-Mart's Jonquière, Quebéc Store Closing

On Friday, the Supreme Court of Canada released its concurrent decisions in Plourde v. Wal-Mart Canada Corp., 2009 SCC 54 and Desbiens v. Wal-Mart Canada Corp., 2009 SCC 55.

A Wal-Mart store in Jonquière, Québec was certified by the FTQ – a Québec union. Collective bargaining was unsuccessful, and the Québec Minister of Labour appointed an arbitrator to resolve the outstanding issues so that a collective bargaining agreement could be achieved. When the arbitrator was appointed, Wal-Mart announced that it was closing the Jonquière, Quebec store. Many employees filed unfair labour practices complaints against Wal-Mart under various provisions of the Québec Labour Code. Plourde claimed that he lost his employment because the employees of the Jonquière, Québec store were certified to be represented by the FTQ, and sought an order reinstating him to his job. The Québec labour tribunal (the CRT) dismissed Plourde's complaint, and determined that Wal-Mart had discharged its onus to demonstrate that his dismissal was for good and sufficient reason. Plourde sought judicial review of the CRT decision, and the matter proceeded through the Quebec courts to the Supreme Court of Canada.

The Supreme Court of Canada upheld the longstanding doctrine that a definitive workplace closure constitutes good and sufficient reason for a dismissal. More practically, the Court determined that Plourde could not be reinstated because Wal-Mart no longer operated the Jonquière, Quebec store and therefore could not be reinstated at that location. In other words, the specific legislative remedy sought by Plourde and the employees in the Desbiens case was not available, because the Jonquière, Québec store had closed, both appeals were dismissed.

Although this can be seen as a victory for employers, it should be noted that the specific fact that the store in which the employees had worked no longer existed, coupled with the precise wording of the relevant provisions of the Québec Labour Code, make the decisions relatively limited in application. The issue of why the Jonquière, Quebec store was closed was not addressed in detail, as the Supreme Court of Canada concluded that it was not an appropriate consideration for the specific provision under which the employees complained. Indeed, the Court noted that had the employees applied under other unfair labour practice provisions of the Québec Labour Code, the relevance of possible anti-union animus would have been an issue and other remedies would have been available:

Going forward, employers need to maintain good practices that avoid creating the appearance of antiunion animus. If a union certification drive occurs, impacted employers must ensure that they proceed cautiously to avoid unnecessary unfair labour practice complaints – which can have significant results, including automatic certification in some jurisdictions.

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