Wal-Mart Victory At The Supreme Court

The long-anticipated judgment of the Supreme Court of Canada in the Québec Wal-Mart case (Plourde v. Wal-Mart Canada Corp., 2009 SCC 54, along with its sister case, Desbiens v. Wal-Mart Canada Corp., 2009 SCC 55) was released on Friday, November 27, 2009. As expected, the judgment sheds significant light on a Québec employer's rights and obligations with respect to the closure of a business in a unionized context. On the positive side, the Supreme Court confirmed that a Québec employer cannot be forced to continue to operate its business — or to reopen its business — as a result of allegations of unfair labour practices, and held that particular recourses under the Québec Labour Code are unavailable to employees in a workplace closure situation. However, the Court made it clear that employers who close to avoid a union are not off the hook. It recognized that unfair labour practices can arise in the context of a business closure, and the closure itself can be found to be an unfair labour practice. Employees in these situations are not without recourse and, in fact, the general recourses available under the Labour Code to sanction unfair labour practices could potentially give rise to a range of penalties against an employer and a variety of remedies for affected employees.

Factual Context

In August 2004, a union was certified to represent the employees of a Wal-Mart store in Jonquière Québec. The Jonquière store was the first Wal-Mart store in North America to be unionized. In April of 2005, after collective agreement negotiations broke down, the Minister of Labour appointed an arbitrator to settle the first collective agreement. On the same day, Wal-Mart announced that it was closing its Jonquière store, leading to the termination of all store employees.

A number of proceedings arose out of the closure of the Jonquière store, mostly alleging that the store closure was a measure undertaken by Wal-Mart as a part of a broader union avoidance and union-busting strategy. Gaétan Plourde was one of several employees to file a complaint under ss. 15 to 17 of the Québec Labour Code, claiming to have lost his job because of his union activities and seeking an order to be reinstated in his position.

Sections 15 to 17 of the Labour Code provide a specific complaint mechanism for employees who consider that they have been dismissed, suspended, transferred or discriminated against, or that they have been the victim of reprisals or any other sanction...