The Die Is Cast Regarding The Freedom Of Association Of Management Personnel Of The Société Des Casinos Du Québec

On November 5, 2018 the Quebec Superior Court decided that the exclusion of management personnel from the Labour Code (the "Code") pursuant to section 1(l)1o thereof does not unduly infringe the freedom of association guaranteed by the Canadian Charter of Rights and Freedoms (the "Canadian Charter") and the Charter of Human Rights and Freedoms (the "Quebec Charter"), and is thus constitutionally valid, applicable and operative.

The Superior Court's decision overturned the interlocutory decision rendered on December 7, 2016 by the Administrative Labour Tribunal (the "ALT") wherein the ALT declared section 1(l)1o of the Code inoperative for infringing the right to freedom of association. The ALT's decision was pursuant to an application for accreditation submitted by the Association des cadres de la Société des casinos du Québec (the "Association") in order to represent certain first-level management personnel employees of the Société des casinos du Québec (the "Corporation"), specifically operations supervisors (the "Supervisors").

In its decision the ALT concluded that because the Supervisors are excluded from the application of the Code, they are not entitled to certain rights protected by constitutionally guaranteed freedom of association, particularly the right to bargain collectively, the right to negotiate material conditions of employment, and the right to have access to a specialized labour law tribunal1.

The ALT was also of the view that even though the Supervisors were members of the Association and could participate in its activities, in particular by choosing its representatives and controlling its financial administration, this was not sufficient to give them full freedom of association, as they could not form an independent association since recognition of the Association was at the discretion of the employer2. The Corporation accordingly applied for judicial review of the ALT's decision3.

Decision of the Superior Court on judicial review

The Superior Court overturned the ALT's interlocutory decision. The Court recognized that while there had been infringement of some aspects of the Supervisors' freedom of association, the infringement was due to actions of a private nature on the part of the Corporation, and not due to the State's responsibility4, which would have had to be proven in order to conclude that section 1(l)1o of the Code was unconstitutional. The substantial infringement of the Supervisors' freedom of association...