United Food v. Commercial Workers, Local 503, 2014 SCC 45

SUPREME COURT OF CANADA Citation: United Food and Commercial Workers, Local 503 v. Wal-Mart Canada Corp. , 2014 SCC 45, [2014] 2 S.C.R. 323 Date: 20140627 Docket: 34920 Between: United Food and Commercial Workers, Local 503 Appellant and Wal-Mart Canada Corporation Respondent - and - Conseil du patronat du Québec inc., Alliance of Manufacturers & Exporters Canada, also known as Canadian Manufacturers & Exporters, Canadian Association of Counsel to Employers and Confédération des syndicats nationaux Interveners Official English Translation : Reasons of LeBel J.

Coram: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ. Reasons for Judgment: (paras. 1 to 98) Joint Dissenting Reasons: (paras. 99 to 142) LeBel J. (McLachlin C.J. and Abella, Cromwell and Karakatsanis JJ. concurring) Rothstein and Wagner JJ. u.f.c.w., local 503 v. wal-mart, 2014 SCC 45, [2014] 2 S.C.R. 323 United Food and Commercial Workers, Local 503 Appellant v.

Wal-Mart Canada Corp. Respondent and Conseil du patronat du Québec inc., Alliance of Manufacturers & Exporters Canada, also known as Canadian Manufacturers & Exporters, Canadian Association of Counsel to Employers and Confédération des syndicats nationaux Interveners Indexed as: United Food and Commercial Workers, Local 503 v . Wal-Mart Canada Corp. 2014 SCC 45 File No.: 34920. 2013: December 6; 2014: June 27.

Present: McLachlin C.J. and LeBel, Abella, Rothstein, Cromwell, Karakatsanis and Wagner JJ. on appeal from the court of appeal for quebec Labour relations — Certification — Maintenance of conditions of employment — Collective dismissal — Arbitration — Union certified to represent employees — Negotiations to conclude first collective agreement with employer unsuccessful — Employer announcing closure of business — Union filing grievance alleging that dismissal of employees constituted unilateral change in conditions of employment that is prohibited by s. 59 of Quebec Labour Code — Whether s. 59 can be used to challenge resiliation of contracts of employment of all employees of establishment — If so, whether arbitrator rendered unreasonable award in concluding that, in this case, resiliations constituted unlawful change in conditions of employment — Labour Code, CQLR, c.

C -27 , ss. 59, 100.12 . Wal-Mart opened its Jonquière establishment in 2001. In August 2004, the Commission des relations du travail certified United Food and Commercial Workers, Local 503 (“the Union”) as the bargaining agent for the employees working at the establishment. In the months that followed, Wal-Mart and the Union met several times to negotiate the terms of a first collective agreement. These meetings proved to be unsuccessful, and on February 2, 2005, the Union applied to the Minister of Labour to appoint an arbitrator to settle the dispute that remained between the parties.

One week later, Wal-Mart informed the Minister of Employment and Social Solidarity that it intended to resiliate the contracts of employment of all the approximately 200 employees who worked in its Jonquière establishment “for business reasons” on May 6 of that year. After breaking the news to its employees, the business actually closed its doors earlier than planned, on April 29, 2005. Believing that the decision was based on anti-union considerations, the employees and their union brought a series of proceedings against their former employer. In most of these proceedings, the result favoured Wal-Mart.

On March 23, 2005, the Union submitted the grievance at issue in this appeal. It alleged that the dismissal of the employees constituted a change in their conditions of employment that violated s. 59 of the Labour Code (“ Code ”), which provides that, from the filing of a petition for certification, an employer may not change its employees’ conditions of employment while the collective agreement is being negotiated without the written consent of the certified association.

Since Wal-Mart had not proved that its decision to dismiss was made in the ordinary course of its business , the arbitrator concluded that the resiliation of the contracts of employment of all the employees constituted a unilateral change that was prohibited by s. 59. His award was affirmed by the Superior Court, but overturned by the Court of Appeal. The judges of the Court of Appeal, although divided on how broadly s. 59 should be construed, agreed that the

section did not apply in the circumstances of the case before them. Held (Rothstein and Wagner JJ. dissenting): The appeal should be allowed and the case remanded to the arbitrator to determine the appropriate remedy in accordance with the disposition of his award. Per McLachlin C.J. and LeBel, Abella, Cromwell and Karakatsanis JJ.: The true function of s. 59 of the Code is to foster the exercise of the right of association.

Its purpose in circumscribing the employer’s powers is not merely to strike a balance or maintain the status quo during the negotiation of a collective agreement, but is more precisely to facilitate certification and ensure that the parties bargain in good faith. The “freeze” on conditions of employment codified by s. 59 limits any influence the employer might have on the association-forming process, eases the concerns of employees who actively exercise their rights, and facilitates the development of what will eventually become the labour relations framework for the business.

Since s. 59 is not directly concerned with the punishment of anti-union conduct, the prohibition for which it provides will apply regardless of whether it is proven that the employer’s decision was motivated by anti-union animus. It is the union representing the employees that must prove that a unilateral change in working conditions has been made for the purposes of s. 59.

To discharge this burden, the union must show: (1) that a condition of employment existed on the day the petition for certification was filed or a previous collective agreement expired; (2) that the condition was changed without its consent; and (3) that the change was made during the prohibition period. The “condition of employment” concept is a flexible one that encompasses anything having to do with the employment relationship on either an individual or a collective level.

The right to maintenance of the employment relationship is the basis for a condition of employment for employees, although that condition is nevertheless subject to the employer’s exercise of its management power. Unlike s. 17 of the Code , s. 59 does not create a presumption of change or automatically reverse the burden of proof. The union must adduce sufficient evidence to prove that the alleged change is inconsistent with the employer’s normal management practices. However, nothing prevents the arbitrator hearing the complaint from drawing presumptions of fact from the

whole of the evidence presented before him or her in accordance with the general rules of the law of civil evidence as normally applied. As a result, if the union submits evidence from which the arbitrator can infer that a specific change does not seem to be consistent withthe employer’s normal management practices, a failure by the employer to adduce evidence to the contrary is likely to have an adverseeffect on its case.

A change can be found to be consistent with the employer’s “normal management policy” if (1) it is consistent withthe employer’s past management practices or, failing that, (2) it is consistent with the decision that a reasonable employer would havemade in the same circumstances. The arbitrator must be satisfied that those circumstances exist and that they are genuine. In the case of a complaint under s. 59, s. 100.12 of the Code and art. 1590 of the Civil Code of Québec confer broad remedialpowers on the arbitrator.

An arbitrator can order reparation in kind, but where the circumstances do not lend themselves to such aremedy, he or she can order reparation by equivalence. The latter remedy will be appropriate where the employer goes out of businesseither in part or completely, at least insofar as it is impossible to reinstate the employees dismissed in contravention of s. 59. Unlike s. 15of the Code, s. 59 contains no word or language that would support a conclusion that its applicability depends on the existence of anactive business or, more simply, of a possibility of reinstatement. Plourde v.

Wal-Mart Canada Corp., 2009 SCC 54, [2009] 3 S.C.R.465, therefore cannot support the conclusion that the closure of a business rules out any possibility of applying s. 59 of the Code. In theinstant case, there is nothing to preclude the arbitrator from ordering an alternative remedy in the form of damages. An arbitrator, who is required by law to decide any complaint based on s. 59 of the Code, has considerable discretion indoing so that the ordinary courts must respect. Deference is in order, and judicial review will be available only if the award wasunreasonable.

In this case, the arbitrator’s award is clearly one of the possible, acceptable outcomes which are defensible in respect ofthe facts and law. The arbitrator was right to decide that invoking the closure of the Jonquière establishment did not on its own suffice tojustify the change for the purposes of s. 59. He did not place an inappropriate burden of proof on the employer.

His statement that Wal-Mart had not shown the closure to have been made in the ordinary course of the company’s business was grounded in his view that theUnion had already presented sufficient evidence to satisfy him that the change was not consistent with the employer’s past managementpractices or with those of a reasonable employer in the same circumstances. It was in fact reasonable to find that a reasonable employerwould not close an establishment that “was performing very well” and whose “objectives were being met” to such an extent that bonuseswere being promised.

These inferences of fact, which Wal-Mart did not challenge, led the arbitrator to hold that the resiliation of thecontracts of employment and, therefore, the change in the conditions of employment of all the establishment’s employees violated s. 59. This conclusion was reasonable in light of the facts and the law. Per Rothstein and Wagner JJ. (dissenting):

Section 59 of the Code does not apply in situations involving the complete andpermanent closure of a business. As this Court stated in Plourde v. Wal-Mart Canada Corp., the recourse available in suchcircumstances lies under ss. 12 to 14 of the Code.

Section 59 cannot apply to Wal-Mart’s genuine and definitive closure of its Jonquière store because it would require Wal-Mart to justify its decision to close the store, which is inconsistent with the employer’s right, under Quebec law, to close its business forany reason. The sole requirement is that the business closure be genuine and definitive. Once an employer exercises its right to close upshop, then s. 59 of the Code cannot impose an additional ex post facto justification requirement simply because this closure gives rise toa secondary effect — the collective termination of employees.

A store closure, by definition, does not conform to previous businesspractices. If s. 59 were to apply to a situation of store closure, the result would be that businesses could never prove a store closure wasbusiness as usual. It would also mean that the employer would be prevented from exercising its right to close its business during the s.59 freeze period and yet could, immediately upon the conclusion of a collective agreement, the exercise of the right of lock out or strike,or the issuance of an arbitration award, close its business for any reason.

Legislation cannot be interpreted to give rise to such absurdresults. To apply s. 59 to business closure situations would also undermine the Code’s assignment of the burden of proof and therebydisrupt the Code’s internal coherence. Under ss. 12 to 14, the claimant must prove that anti-union animus motivated the store closure.Contrarily, under s. 59, the employer would bear the burden of justifying the store closure under the “business as usual” rule.

The text and context of s. 59 of the Code also indicate that it cannot apply to a business closure situation because itpresupposes the existence of an ongoing business.

Section 59 is designed to facilitate the conclusion of a collective agreement within anexisting employment relationship; it is not designed to maintain the employment relationship. Finally, s. 59 cannot apply in the context of a business closure as there is no appropriate remedy available to the arbitrator. Where there is a breach of s. 59, then, the arbitrator must provide a remedy that restores the status quo ante. Since employers in Quebechave the right to close their business, an arbitrator cannot order an employer to reopen a store.

While it is true that an arbitrator has thepower to award damages under s. 100.12 of the Code, such a remedy would be inconsistent with the purpose of s. 59, since it would notrestore the balance between the parties or facilitate the conclusion of a collective agreement. Arbitrators may award damages tocompensate for harm that cannot be compensated for by an award in kind. Wal-Mart has already compensated employees of theJonquière store for the loss of their jobs by paying them severance pay in an amount equal to two weeks of work per year of service.

Since s. 59 does not apply to the business closure situation, it gives rise to no additional financial consequences for Wal-Mart. Cases Cited By LeBel J. Distinguished: Plourde v. Wal-Mart Canada Corp., 2009 SCC 54, [2009] 3 S.C.R. 465; referred to: Boutin v. Wal-MartCanada inc., 2005 QCCRT 225 ; Boutin v. Wal-Mart Canada inc., 2005 QCCRT 269 , aff’d 2005 QCCRT 385, aff’d 2007 QCCS 3797 ; Pednault v. Compagnie Wal-Mart du Canada, , aff’d 2006 QCCA 666,[2006] R.J.Q. 1266; Plourde v.

Compagnie Wal-Mart du Canada, 2006 QCCRT 207 , aff’d 2007 QCCS 3165 , aff’d2007 QCCA 1210 , aff’d 2009 SCC 54, [2009] 3 S.C.R. 465; Desbiens v. Wal-Mart Canada Corp., 2009 SCC 55, [2009] 3S.C.R. 540; I.A.T.S.E., Stage Local 56 v. Société de la Place des Arts de Montréal, 2004 SCC 2, [2004] 1 S.C.R. 43; Travailleurs ettravailleuses unis de l’alimentation et du commerce,

section locale 503 v. Compagnie Wal-Mart du Canada — Établissement deJonquière, (QC SAT), [2006] R.J.D.T. 1665; Travailleurs et travailleuses unis de l’alimentation et du commerce,section locale 503 v. Ménard, 2007 QCCS 5704, [2008] R.J.D.T. 138; La Reine v. Harricana Metal Inc., [1970] T.T. 97; Club coopératifde consommation d’Amos v. Union des employés de commerce,

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APPEAL from a judgment of the Quebec Court of Appeal (Vézina, Léger and Gagnon JJ.A.), 2012 QCCA 903, [2012] R.J.Q. 978, [2012] R.J.D.T. 387, [2012] AZ-50856639, [2012] J.Q. no 4538 (QL), 2012 CarswellQue 4819, setting aside a decision of Moulin J., 2010 QCCS 4743, [2010] R.J.D.T. 1118, [2010] (QC CS), AZ-50678295, [2010] J.Q. no 10112 (QL),2010 CarswellQue 10570, dismissing an application for judicial review of an arbitral award, (QC SAT), [2009]R.J.D.T. 1439. Appeal allowed, Rothstein and Wagner JJ. dissenting. Claude Leblanc, Bernard Philion, Gilles Grenier and Stéphanie Lindsay, for the appellant.

Corrado De Stefano, Frédéric Massé, Danny Kaufer and Louis Leclerc, for the respondent. Ronald J. McRobie, Dominique Monet and Guy-François Lamy, for the intervener Conseil du patronat du Québec inc. George Avraam, Mark Mendl and Cherrine Chow, for the intervener the Alliance of Manufacturers & Exporters Canada. Stephen F. Penney and Jeffrey W. Beedell, for the intervener the Canadian Association of Counsel to Employers. Éric Lévesque, Isabelle Lanson and Karim Lebnan, for the intervener Confédération des syndicats nationaux.

English version of the judgment of McLachlin C.J. and LeBel, Abella, Cromwell and Karakatsanis JJ. delivered by LeBel J. — I. Introduction [1] On April 29, 2005, Wal-Mart Canada Corp. (“Wal-Mart”) closed its store in Jonquière in the Saguenay–Lac-Saint-Jean region. The closure, which had been announced the day an arbitrator was appointed to resolve an impasse in negotiations for a firstcollective agreement with the union certified for that establishment, led to a series of proceedings based on various sections of theLabour Code, CQLR, c. C-27 (“Code”), and the Act respecting labour standards, CQLR, c.

N-1.1 (“A.L.S.”). This appeal, the finalchapter in this long legal battle, concerns the

interpretation of the first paragraph of s. 59 of the Code, which reads as follows: From the filing of a petition for certification and until the right to lock out or to strike is exercised or an arbitration award ishanded down, no employer may change the conditions of employment of his employees without the written consent of each petitioningassociation and, where such is the case, certified association. [2] On being asked to determine whether that provision applied in the context of the closure of the Jonquièreestablishment, arbitrator Jean-Guy Ménard concluded that the resiliation of the contracts of employment of all the employees of thatestablishment constituted a prohibited unilateral change.

His award was affirmed by the Superior Court, but overturned by the Court ofAppeal. The judges of the Court of Appeal, although divided on how broadly s. 59 should be construed, agreed that the

section did notapply in the circumstances of the case before them. [3] In my opinion, the Court of Appeal erred in intervening as it did. Arbitrator Ménard’s analysis and the conclusionshe drew are not unreasonable. On the contrary, it seems to me that the prohibition provided for in s. 59 of the Code is indeed applicableto the facts of this case. I would accordingly allow the appeal, dismiss the application for judicial review and declare the arbitrationaward, and its disposition, to be valid. II.

Origins and History of Litigation Between Wal-Mart and the Union [4] Wal-Mart opened its Jonquière establishment in 2001. Three years later, in August 2004, the Commission desrelations du travail (“Commission”) certified United Food and Commercial Workers, Local 503 (“the Union”) as the bargaining agent forthe employees working at the establishment.

In the months that followed, Wal-Mart and the Union met approximately 10 times tonegotiate the terms of what would in normal circumstances have become the first collective agreement between the parties. [5] These meetings proved to be unsuccessful, and the Union therefore availed itself of the option of first agreementarbitration under s. 93.1 of the Code on February 2, 2005, applying to the Minister of Labour to appoint an arbitrator to “settle thedispute” that remained between the parties.

One week later, Wal-Mart informed the Minister of Employment and Social Solidarity that itintended to close its Jonquière establishment on May 6 of that year and that, on the same date, it would be resiliating the contracts ofemployment of all the employees who worked there. After breaking the news to its employees, the business actually closed its doorsearlier than planned, on April 29, 2005. Nearly 200 employees lost their jobs. [6] Believing that the decision was based on anti-union considerations, the employees and their union brought a seriesof proceedings against their former employer.

On March 23, 2005, before the establishment had even closed, the Union submitted thegrievance at issue in this appeal. The next day, the Union and several employees applied to the Commission for an interlocutory andpermanent order enjoining the company to keep its Jonquière establishment open. The following month, one of the employees, AlainPednault, applied to the Superior Court for authorization to institute a class action against his employer, arguing, inter alia, that theemployer had violated various rights protected by the Code and the Charter of human rights and freedoms, CQLR, c. C-12.

Finally, afew weeks after the establishment closed, a group of employees that included Gaétan Plourde filed a series of complaints with theCommission under ss. 15 to 19 of the Code, which prohibit dismissals and other actions taken in response to employees’ union activities. [7] In most of these proceedings, the result favoured Wal-Mart. First, the Commission dismissed the application for an

order enjoining the company to keep its Jonquière establishment open, holding that no prima facie case had been made out (Boutin v.Wal-Mart Canada inc., 2005 QCCRT 225 ; 2005 QCCRT 269 , aff’d 2005 QCCRT 385 , and 2007 QCCS3797 ). Next, the Superior Court dismissed Mr. Pednault’s application for authorization to institute a class action. It found, andthe Court of Appeal agreed, that the Commission had exclusive jurisdiction over the subject matter of the proposed action (Pednault v.Compagnie Wal-Mart du Canada, (Que. Sup. Ct.), aff’d 2006 QCCA 666, [2006] R.J.Q. 1266). [8] Finally, the complaints in which Mr.

Plourde and his coworkers alleged a violation of ss. 15 to 19 of the Code wereultimately rejected by a majority of this Court (Plourde v. Wal-Mart Canada Corp., 2006 QCCRT 207 , aff’d 2007 QCCS 3165, 2007 QCCA 1210 , and 2009 SCC 54, [2009] 3 S.C.R. 465; Desbiens v. Wal-Mart Canada Corp., 2009 SCC 55,[2009] 3 S.C.R. 540). In that first case, Mr. Plourde argued that he, together with other employees, had been dismissed for his unionactivities. Relying on ss. 15 to 19 of the Code, he sought to be reinstated in his job.

The Court’s answer, which was purely procedural(para. 4), was essentially based on the language of s. 15. [9] The majority of this Court found that the language of that

section is clear: the course open to the Commission is toorder that an unlawfully dismissed worker be reinstated “in his employment” (see paras. 35-36, 39 and 54). Given that it lacks the powerto award damages as an alternative remedy (paras. 36 and 39), the Commission, which cannot order an offending employer to keeprunning its business, simply has no way to ensure respect for the rights of dismissed employees. Even if it did have such a power,however, on the basis of I.A.T.S.E., Stage Local 56 v.

Société de la Place des Arts de Montréal, 2004 SCC 2, [2004] 1 S.C.R. 43, closurewould be a “good and sufficient reason” for dismissal within the meaning of s. 17 (paras. 41 et seq.) and, as such, would in practiceconstitute a complete answer for an employer against which a complaint has been filed under ss. 15 to 19 of the Code. [10] Having determined that the s. 15 scheme was inapplicable, the majority added that the closure of an establishmentdoes not shield an employer from all the consequences of its decision (paras. 8, 51-52 and 54).

Quite the contrary, given that there areother sections under which a claim for compensation might lie. In the case at bar, the employees are arguing that s. 59 is one suchsection. III. Procedural History of the Appeal A. Preliminary Decisions Concerning the Grievance Arbitrator’s Subject-Matter Jurisdiction [11] The grievance at issue in this appeal was initially dismissed at a preliminary stage on the basis that the arbitratorlacked jurisdiction over the subject matter (Travailleurs et travailleuses unis de l’alimentation et du commerce,

section locale 503 v.Compagnie Wal-Mart du Canada — Établissement de Jonquière, (QC SAT), [2006] R.J.D.T. 1665 (T.A.) (Jean-Guy Ménard)). After analyzing the wording of the complaint, Arbitrator Ménard found that it was [translation] “fundamentallyconcerned” with alleged violations of rights established in the Code (paras. 18-22). As a result, s. 114 of the Code left him with nochoice but to decline jurisdiction in favour of the Commission. [12] However, that decision was reviewed by the Superior Court a few months later (Travailleurs et travailleuses unis del’alimentation et du commerce,

section locale 503 v. Ménard, 2007 QCCS 5704, [2008] R.J.D.T. 138). Applying the correctnessstandard, Taschereau J. noted that the arbitrator should have determined the true subject matter of the complaint rather than relying on itswords alone (paras. 42-43). In the absence of evidence to the contrary, [translation] “one could not find on the basis of the words . . . thatthe arbitrator lacked jurisdiction” (para. 44). On the contrary, he stated, “without hiding behind strict formalism, as the respondentarbitrator did”, it seemed clear that the complaint was based on s. 59 (paras. 44-48).

It was in fact up to the arbitrator to rule on thecomplaint, although he might have to reconsider his jurisdiction in light of the evidence adduced (paras. 49-51). B. Grievance Arbitrator’s Award, (QC SAT), [2009] R.J.D.T. 1439 [13] Exercising his jurisdiction in this regard, Arbitrator Ménard upheld the Union’s complaint and reserved the right todetermine the appropriate remedy. [14] After considering all the evidence, he found first that the dispute concerned the dismissal of the employees and not,as Wal-Mart suggested, the closure of its establishment (paras. 14-17).

This meant that it had to be decided whether a dismissal canviolate s. 59 of the Code and whether the dismissal in this case was in fact such a violation. [15] Relying on the relevant case law, Arbitrator Ménard noted that the purpose of the freeze on conditions ofemployment imposed by s. 59 is to protect, for a specified period of time, the right to form a union and negotiate a collective agreement. To this end, the

section prohibits an employer from changing its employees’ conditions of employment until that period expires. Giventhat this “freeze” is relative in nature, however, it does not prevent the employer from running its business as it would normally dooutside the period specified in the Code.

The employer can therefore make any changes it wishes in the management of its workforce,but only if it does so [translation] “in accordance with criteria it established for itself before the arrival of the union in its workplace”(paras. 18-20). [16] Moreover, he added, it is [translation] “now accepted by judges and authors alike that a layoff or dismissal can resultin a change in conditions of employment” (para. 22). As a result, the employer must justify its decision to dismiss “by proving that itwas made in the ordinary course of its business” (para. 24).

In the absence of some additional explanation by the employer, the fact thatthe closure of the establishment was a “business decision” within its exclusive authority does not on its own constitute such proof. Although it is always open to an employer to go out of business, the employer must nonetheless explain a decision to do so during theperiod covered by s. 59. The employer in this case did not do so (paras. 25-29). C. Superior Court, 2010 QCCS 4743, [2010] R.J.D.T. 1118 [17] On a motion for judicial review, the Superior Court upheld Arbitrator Ménard’s award.

To begin, Moulin J.reiterated that the arbitrator had jurisdiction to decide the case. In his opinion, Mr. Ménard’s decision to hear the case was not onlyreasonable, but also correct in law. In this regard, the fact that the circumstances on which the grievance was based could give rise to

various remedies did not deprive the arbitrator of his powers and jurisdiction under s. 59 of the Code (paras. 25-39). [ 18 ] Applying the reasonableness standard, Moulin J. then held that, on the merits, the arbitrator’s award had all the qualities that make a decision reasonable. First, in light of the case law of this Court and of the Court of Appeal, it was not unreasonable to conclude that the dismissal of all the employees of an establishment could constitute a change in their conditions of employment (paras. 47-50).

Second, it was just as reasonable to ask an employer challenging the merits of a complaint to show that the change was made in the ordinary course of its business. In the absence of evidence to that effect, the arbitrator was justified in holding as he did (paras. 51-57). D. Court of Appeal, 2012 QCCA 903 , [2012] R.J.Q. 978 [ 19 ] Wal-Mart appealed to the Court of Appeal, which set aside the Superior Court’s decision, granted the application for judicial review, annulled the arbitration award and rejected the Union’s complaint.

Two members of the court wrote separate reasons that led to the same result. [ 20 ] In reasons concurred in by Gagnon J.A., Vézina J.A. first stated his view that closure does not “constitute” a change in conditions of employment. Rather, it is a termination of employment, which in his opinion falls outside even an extended meaning of the concept of conditions of employment (paras. 117-19).

Relying on observations made by the majority of this Court in Plourde , he added that, to remedy an unlawful change in conditions of employment, [ translation ] “it is necessary to return to the former situation, to restore the operation of the business to how it was run before” (para. 121). However, such a “remedy is not possible . . . given that no one can be forced to continue operating a business, no matter what his or her reasons for closing it might be” (para. 122).

Before dismissing the proceeding under s. 59 , however, he pointed out that there was nothing to prevent the employees from filing a complaint alleging a violation of ss. 12 and 14 of the Code with the Commission (paras. 124-27). [ 21 ] Unlike his colleagues, Léger J.A. considered both the arbitrator’s jurisdiction and the validity of his award (para. 9). In his view, the standard that applies when a superior court reviews the exercise of an arbitrator’s power to rule on a complaint based on s. 59 of the Code is not reasonableness, but correctness (paras. 50-57).

Having said this, however, he held that the arbitrator had not erred in taking jurisdiction in this case. Nor did the fact that the employees could obtain other remedies by means of a complaint to the Commission have the effect of depriving the arbitrator of his powers and jurisdiction under ss. 59 and 100.10 of the Code (paras. 65-74). [ 22 ] On the merits, however, Léger J.A. found that the arbitrator’s reasoning [ translation ] “[was] so incoherent” that he could not find it to have the qualities that make a decision reasonable (para. 84).

First of all, it was contradictory to find that the employer had the power to close its business while at the same time accepting that the continuation of the employment relationship was a condition of employment (paras. 96-97). Moreover, by upholding the complaint, the arbitrator was adding to the employees’ conditions of employment, which was incompatible with the very concept of a statutory freeze (paras. 98-100). The arbitrator’s award was therefore unreasonable. IV. Analysis A.

Issues [ 23 ] This appeal raises a series of issues concerning the nature and scope of s. 59 of the Code , as well as its applicability where a business is closed either completely or in part. Thus, the Court must decide whether s. 59 can be used to challenge the resiliation of the contracts of employment of all the employees of an establishment. If it can be so used, the Court must also decide whether the arbitrator rendered an unreasonable award in concluding that, in this case, the resiliations constituted an unlawful change in conditions of employment. B.

Positions of the Parties and the Interveners [ 24 ] The Union agrees with Arbitrator Ménard’s award and argues that the Court of Appeal erred in law in finding that s. 59 of the Code does not apply in the context of the closure of an establishment. In essence, the Union submits, the Court of Appeal’s decision was based on a misinterpretation of the Code and a misreading of this Court’s decisions in Place des Arts and Plourde . If the Court of Appeal had adopted an

interpretation consistent with the language and the context of s. 59, then it should have concluded that the closure of the Jonquière store did not preclude the application of that provision. [ 25 ] According to the Union, not only is it well established that dismissal may constitute a change in conditions of employment, but the employer in the instant case has produced no evidence to justify that change. In the absence of evidence that would support a conclusion that the employer’s decision was made in the ordinary course of its business, the change was unlawful.

Moreover, the words of s. 59 , unlike those of s. 15 , contain no indication that the only possible remedy is to reinstate the employees affected by the unjustified change. They say nothing to prevent the arbitrator from ordering reparation by equivalence.

Finally, the Union adds, this conclusion is consistent not only with the language and context of s. 59 , but also with that section’s objectives: it precludes the employer from taking measures that might hinder the formation of a union and the negotiation of a collective agreement, while favouring the effective exercise of the right of association. [ 26 ] In response, Wal-Mart argues that the Court of Appeal’s decision is well founded in law.

The application of s. 59 presupposes the existence of an ongoing business, since, where such a business no longer exists, there is no longer an employment relationship or a condition of employment, nor is there a balance to be maintained between the parties. In every case, the arbitrator’s role is limited to restoring the situation that existed before the change. Given that the arbitrator has no power to compel a business to reopen, there is simply nothing the arbitrator can do.

In any event, Wal-Mart adds, dismissals resulting from the permanent closure of a business do not constitute a change in conditions of employment. Since an employer has the right to close its business without having to justify its action, continued employment cannot be a condition of employment. Furthermore, since the sole purpose of s. 59 is to maintain the employees’ conditions of employment, this

section does not have the effect of creating conditions that did not exist before the petition for certification was filed. Dismissal cannot therefore constitute a change in conditions of employment.

[27] Three of the four interveners, supporting Wal-Mart’s position, add that the role of s. 59 is not to regulate the closureof businesses. Instead, in Quebec, as elsewhere in Canada, it is the provisions on unfair practices that apply in cases involving closure. As a result, s. 59 is quite simply not the appropriate mechanism for remedying the consequences of the closure of an establishment. Incontrast, the fourth intervener argues that the other remedies provided for in the Code are complementary.

Section 59 and the broadremedial powers conferred on arbitrators by the Code can therefore be used by employees to obtain compensation in a case involving anunjustified closure.

Section 59, which establishes a substantive legal rule, must also be interpreted in light of the principle of fullcompensation that applies both in our domestic law and in international law. C.

Section 59: Nature and

Interpretation [28] Since the mechanism for freezing conditions of employment now codified in s. 59 of the Code was adopted, theinterpretation of that

section has been the subject of much discussion. The diversity of judicial opinions on this subject has createduncertainty in some areas that I wish to discuss in relation to this case. In this regard, I will review the section’s legislative context,objectives and role first, before discussing the conditions under which it applies. Finally, I will comment briefly on the powers availableunder the

section to an arbitrator who must determine whether it applies.

(1) Legislative Context, Objectives and Role of

Section 59 [29] The substance of what is now the first paragraph of s. 59 of the Code was originally found at the end of s. 24(1) ofthe Labour Relations Act, R.S.Q. 1941, c. 162A, in a division entitled “Forbidden Practices” (“1944 Act”). This Act was inserted into therevised statutes in 1944 by the Act to constitute a Labour Relations Board, S.Q. 1944, c. 30.

Inspired by a U.S. law generally known asthe Wagner Act (National Labor Relations Act, 49 Stat. 449 (1935)), the 1944 Act codified [translation] “a partially new conception oflabour-management relations” while at the same time introducing “profound changes” into the law then in force (M.-L. Beaulieu, LesConflits de Droit dans les Rapports Collectifs du Travail (1955), at pp. 175-79). It gave employees a right of association, established abargaining process, imposed on the parties a duty to bargain in good faith and prohibited various types of unfair practices (M. G.

Bergeron, “La procédure de négociation et le recours à la grève ou au lockout”, in Le Code du Travail du Québec (1965): le XXe congrès des relations industrielles de l’Université Laval (1965), 135, at pp. 136-39). [30] Although the 1944 Act was an important step in the development of labour relations in Quebec, it failed toadequately protect the exercise of the rights it affirmed (Bergeron, at p. 137). As a result, 20 years after it was enacted, it was replacedby the first version of the Labour Code (R.S.Q. 1964, c. 141).

The objective of that code, which was the product of a wide-rangingsynthesis, was to establish a general scheme applicable to all labour relations (R. P. Gagnon, L. LeBel and P. Verge, Droit du travail envigueur au Québec (1971), at p. 82; G. Hébert, “Trends in the New Quebec Labour Code” (1965), 20 I.R. 61, at p. 62). [31] The Code was more comprehensive than the 1944 Act, and was divided into nine chapters set out in a logical orderbased on events in which an association would be involved.

In that codification, the “Forbidden Practices” division of the 1944 Actdisappeared and its various sections were redistributed. Because of the link between s. 24(1) and the collective bargaining process, thesubstance of that provision was naturally incorporated into the

chapter entitled “Collective Agreements”. [32] In the years that followed the enactment of the Code, recognition of this link between the prohibition codified in s.59 of today’s Code and the “Collective Agreements”

chapter led some to express the opinion that the section’s purpose was to maintain acertain balance, or even the status quo, during the negotiation of a collective agreement. For example, shortly after the new Code cameinto force, Judge Melançon of the Labour Court stated that [translation] “[i]n our opinion, the purpose of this

section of the Labour Codeis to ensure that the balance that existed between the parties before the petition for certification was filed . . . is maintained . . . until oneof the parties acquires the right to strike or the right to lock out . . .”: La Reine v. Harricana Metal Inc., [1970] T.T. 97, at p. 99. [33] Adopting this logic in his reasons in the instant case, Léger J.A. wrote that [translation] “the purpose of

section 59 isto strike a balance during a clearly defined period of time, that is, throughout the bargaining process” (para. 58). With respect, I cannotagree with this conclusion. I have difficulty finding that the legislature’s objective in enacting this

section was purely procedural. Frankly, I do not see how maintaining the status quo or striking a balance can be a legislative objective in itself. Rather, the objectivelies in what might flow from the preservation of this balance. [34] In my opinion, the purpose of s. 59 in circumscribing the employer’s powers is not merely to strike a balance ormaintain the status quo, but is more precisely to facilitate certification and ensure that in negotiating the collective agreement the partiesbargain in good faith (Bergeron, at pp. 142 and 147; F.

Morin, Le Code du travail: sa nature, sa portée, ses effets (1971), at pp. 16-17;Club coopératif de consommation d’Amos v. Union des employés de commerce,

section locale 508, [1985] (QC SAT),AZ-85141201 (T.A.), at pp. 11-12; Association des juristes de l’État v. Commission des valeurs mobilières du Québec, (QC SAT), [2003] R.J.D.T. 579 (T.A.), at para. 71). [35] The “freeze” on conditions of employment codified by this statutory provision limits the use of the primary meansotherwise available to an employer to influence its employees’ choices: its power to manage during a critical period (see G. W. Adams,Canadian Labour Law (2nd ed. (loose-leaf)), vol. 2, at p. 10-80.3; B. W. Burkett et al., eds., Federal Labour Law and Practice (2013), atp. 171).

By circumscribing the employer’s unilateral decision-making power in this way, the “freeze” limits any influence the employermight have on the association-forming process, eases the concerns of employees who actively exercise their rights, and facilitates thedevelopment of what will eventually become the labour relations framework for the business. [36] In this context, it is important to recognize that the true function of s. 59 is to foster the exercise of the right ofassociation: F. Morin et al., Le droit de l’emploi au Québec (4th ed. 2010), at pp. 1122-23 (see also A. C.

Côté, “Le gel statutaire desconditions de travail” (1986), 17 R.G.D. 151, at p. 152; Coopérative étudiante Laval v. Syndicat des travailleurs(euses) de la coopérativeétudiante Laval, [1984] (QC SAT), AZ-84141225 (T.A.), at p. 22; Association du personnel administratif etprofessionnel de l’Université Laval (APAPUL) v. Syndicat des employés de l’Université Laval (SCFP),

section locale 2500, [1985] (QC SAT), AZ-85142069 (T.A.), at pp. 43-44; Plastalène Corp. v. Syndicat des salariés de Plastalène (C.S.D.), [1990] (QC SAT), AZ-90141158 (T.A.); Union des routiers, brasseries, liqueurs douces & ouvriers de diverses industries

(Teamsters, Local 1999) v. Quality Goods I.M.D. Inc., [1990] (QC SAT), AZ-90141179 (T.A.), at p. 6; Syndicat dessalarié-e-s de la Guilde des musiciens du Québec v. Guilde des musiciens du Québec, [1998] (QC SAT), AZ-98141137 (T.A.), at p. 11, aff’d (Que. C.A.); Travailleurs et travailleuses de l’alimentation et du commerce, sectionlocale 501 v. Wal-Mart Canada (St-Hyacinthe), [2010] (QC SAT), AZ-50688504 (T.A.), at para. 80). [37] By codifying a mechanism designed to facilitate the exercise of the right of association, s. 59 thus creates more thana mere procedural guarantee.

In a way, this section, by imposing a duty on the employer not to change how the business is managed atthe time the union arrives, gives employees a substantive right to the maintenance of their conditions of employment during the statutoryperiod. This being said, it is the employees, as the holders of that right, who must ensure that it is not violated.

(2) Conditions for the Application of

Section 59, Paragraph 1 [38] I wish to note first that, since s. 59 is not directly concerned with the punishment of anti-union conduct, theprohibition for which it provides will apply regardless of whether it is proven that the employer’s decision was motivated by anti-unionanimus (Union des routiers, brasseries, liqueurs douces & ouvriers de diverses industries; Syndicat des employé-es de SPC Automation(CSN) v. SPC Automation Inc., (QC SAT), [1994] T.A. 718; Société des casinos du Québec inc. v.

Syndicat des employé(e)s de la Société des casinos du Québec, [1996] (QC SAT), AZ-96142008 (T.A.); Sobey’s inc. (No 650) v.Syndicat des travailleurs et travailleuses de Sobey’s de Baie-Comeau (CSN), [1996] (QC SAT), AZ-96141261(T.A.); Association des juristes de l’État v. Conseil du Trésor, (T.A.); Centre de la petite enfance Casse-Noisette inc.v. Syndicat des travailleuses(eurs) en garderie de Montréal — CSN, (QC SAT), [2000] R.J.D.T. 1859 (T.A.);Association des juristes de l’État v. Commission des valeurs mobilières du Québec; Côté, at p. 156).

The essential question in applying s.59 is whether the employer unilaterally changed its employees’ conditions of employment during the period of the prohibition. [39] As a result, s. 59 requires that the union representing the employees prove that a unilateral change has been made.

To discharge this burden, the union must show: (1) that a condition of employment existed on the day the petition for certification wasfiled or a previous collective agreement expired; (2) that the condition was changed without its consent; and (3) that the change wasmade between the start of the prohibition period and either the first day the right to strike or to lock out was exercised or the day anarbitration award was handed down, as the case may be. In the instant case, the first two of these facts are disputed by the employer. (

a) Continuation of the Employment Relationship as a Condition of Employment [40] The “condition of employment” concept has been given a large and liberal

interpretation since this Court’s decisionin Syndicat catholique des employés de magasins de Québec Inc. v. Compagnie Paquet Ltée., (SCC), [1959] S.C.R. 206,at pp. 211-12; see also Société des casinos du Québec inc., at pp. 14-15; Syndicat des travailleurs et des travailleuses des épiciers unisMétro-Richelieu (C.S.N.) v. Lefebvre, (Que. C.A.), at p. 19; Automobiles Canbec inc. v. Hamelin, (Que. C.A.); Séminaire de la Très Sainte-Trinité v. Tremblay, (QC CS), [1991] R.J.Q. 428 (Sup. Ct.), at pp. 433-34; Sobey’s inc. (No 650), at p. 11; Association des juristes de l’État v.

Conseil du Trésor, at p. 15; Centre de la petite enfance Casse-Noisette inc.; Association des juristes de l’État v. Commission des valeurs mobilières du Québec, at pp. 598-99; Gagnon, LeBel andVerge, at pp. 236-39; F. Morin and R. Blouin, with J.-Y. Brière and J.-P. Villaggi, Droit de l’arbitrage de grief (6th ed. 2012), at p. 202. [41] Thus, the “condition of employment” concept is a flexible one that encompasses [translation] “anything having to dowith the employment relationship on either an individual or a collective level” (Morin et al., at p. 1161; Pakenham v.

Union des vendeursd’automobiles et employés auxiliaires,

section locale 1974, UFCW, (QC TT), [1983] T.T. 189, at pp. 193-94; Centrede la petite enfance Casse-Noisette inc.). This flexibility led the Quebec courts to hold long ago that, in the context of a contract ofemployment for an indeterminate term, continuation of the employment relationship constitutes a condition of employment (Morin andBlouin, at p. 202; Pakenham, at pp. 202-4; Union des employés de commerce, local 500 v. Provost inc., [1981] S.A.G. 732; ScierieBéarn v.

Syndicat des employés(es) de bureau Scierie Béarn, [1988] (QC SAT), AZ-88141194 (T.A.); Séminaire de laTrès Sainte-Trinité; Syndicat des employés de la Commission scolaire du Haut St-Maurice v. Rondeau, (QC CA),[1993] R.J.Q. 65 (C.A.), at p. 68 a contrario; Union des employé-e-s de service, local 800 v. 2162-5199 Québec Inc., (QC SAT), [1994] T.A. 16). [42] The condition of continued employment is implicitly incorporated into the contract of employment and need not beexpressly stipulated.

The essence of every contract is that it requires each party to perform its obligations as long as the other party doesso and no other recognized cause of extinction of obligations occurs (art. 1458, para. 1 and art. 1590, para. 1 of the Civil Code of Québec(“C.C.Q.”), see D. Lluelles and B. Moore, Droit des obligations (2nd ed. 2012), at para. 1969).

The law applicable to contracts ofemployment does not stray from this principle in providing that where a contract is resiliated, a “serious reason” (art. 2094 C.C.Q.) or“good and sufficient cause” (s. 124 A.L.S.) must be shown, or reasonable notice must be given (art. 2091 C.C.Q. and s. 82 A.L.S.). Absent one of these justifications, the employer is bound by an obligation to continue employing the employee.

This principle is all themore fundamental in our modern society, because the systemic importance of work means that the vast majority of employees arecompletely dependent on their jobs (in this regard, see Reference re Public Service Employee Relations Act (Alta.), (SCC), [1987] 1 S.C.R. 313, at p. 368; Delisle v. Canada (Deputy Attorney General), (SCC), [1999] 2 S.C.R. 989, atpara. 66; U.F.C.W., Local 1518 v. KMart Canada Ltd., (SCC), [1999] 2 S.C.R. 1083, at para. 25; Isidore Garon ltée v.Tremblay, 2006 SCC 2, [2006] 1 S.C.R. 27, at para. 35).

In this context, it can be said that such employees have a reasonable expectationthat their employer will not terminate their employment except to the extent and in the circumstances provided for by law. [43] Whether it is based on the Civil Code, on labour legislation or on the implicit content of a contract of employment,this right to continued employment is therefore always the basis for a condition of employment for employees (art. 1434 C.C.Q.). However, this condition is not absolute.

The employer retains at all times the power to manage its business, and this includes the powerto resiliate the contract of employment of one or more of its employees for “legitimate reasons” (economic, disciplinary, etc.) or upon“sufficient” notice of termination. [44]

Section 59 does not change this factual and legal situation. Like any other condition of employment, maintenance ofthe employment relationship remains a condition but is nevertheless subject to the employer’s exercise of its management power.

Therefore, in the words of Deschamps J.A., as she then was, [translation] “although dismissal is not, strictly speaking, a condition ofemployment, the condition of continued employment, and thus the protection against dismissal without a good and sufficient reason, canbe included in the conditions of employment covered by

section 59 L.C.”: Automobiles Canbec inc., at p. 13. [45] In extending the conditions and powers that exist at the time the petition for certification is filed, s. 59 does not makethem different in degree. Although continuation of the employment relationship remains a condition of employment, that relationshipdoes not become any more or less “certain” than before (Coopérative étudiante Laval, at pp. 32-33; Union des employé-e-s de service,local 800, at pp. 22-31; Syndicat des salariés des Industries Leclerc (CSD) v.

Industries Leclerc inc., (QC SAT),[1996] T.A. 554; Syndicat des salarié-e-s de la Guilde des musiciens du Québec, at p. 12; Fraternité des policiers et policières deCarignan v. Ville de Carignan, [2000] (QC SAT), AZ-00142040 (T.A.), at p. 56; Association des juristes de l’État v.Commission des valeurs mobilières du Québec, at para. 76). The employer can therefore resiliate a contract if it does so for legitimatereasons within the meaning of the law.

In such a case, however, for the resiliation not to be considered a change in conditions ofemployment within the meaning of s. 59, it must be consistent with the employer’s normal management practices in this regard. (

b) Changes in Conditions of Employment and the “Business as Usual” Rule [46] To prove that the change made by the employer is a “change in conditions of employment” within the meaning of s.59, the union cannot simply show that the employer has modified how it runs its business. It must also establish that this modification isinconsistent with the employer’s “normal management practices”: M.

Coutu et al., Droit des rapports collectifs du travail au Québec(2nd ed. 2013), vol. 1, Le régime général, at pp. 577-79. [47] Although s. 59 of the Code might seem, if interpreted literally and in isolation, to have the effect of completely“fixing” or “freezing” the employer’s business environment, the opposite is in fact true: to avoid paralyzing the business, the sectionleaves the employer with its general management power, which survives the union’s arrival on the scene but is then circumscribed by thelaw.

This power must be exercised [translation] “in a manner consistent with the rules that applied previously and with the employer’susual business practices from before the freeze”: P. Verge, G. Trudeau and G. Vallée, Le droit du travail par ses sources (2006), at p.139; R. P. Gagnon et al., Le droit du travail du Québec (7th ed. 2013), at pp. 597-98. [48] In this context, the employer cannot simply argue that its decision is consistent with the powers conferred on it in theindividual contract of employment and by the general law before the petition for certification was filed.

It must continue acting the wayit acted, or would have acted, before that date (Syndicat des employés de la Commission scolaire du Haut St-Maurice; Gravel & Fils Inc.v. Syndicat d’entreprises funéraires, (QC SAT), [1984] T.A. 87, at pp. 90-91; Pakenham; Woolco (No. 6291) v.Syndicat national des employés de magasins de Chicoutimi (CSN), [1983] AZ-83141325 (T.A.), at pp. 7-8; Association du personneladministratif et professionnel de l’Université Laval (APAPUL); Plastalène Corp.; Syndicat des salariés des Industries Leclerc (CSD);Syndicat des employés de Télémarketing Unimédia (CSN) v.

UniMarketing inc., (QC SAT), [1997] T.A. 549;Association des juristes de l’État v. Commission des valeurs mobilières du Québec, at para. 84; Travailleurs et travailleuses del’alimentation et du commerce,

section locale 501, at para. 80). [49] On this point, I wish to stress that to accept the opposite argument — that the employer can change its managementpractices in all circumstances because it had the power to do so before the union’s arrival — would be to deprive s. 59 of any effect. Thus, s. 59 was enacted for the specific purpose of preventing the employer from [translation] “exercising its great freedom of action atthe last minute by being particularly generous or adopting any other pressure tactic” (Morin et al., at p. 1122).

To permit the employer tokeep using its managerial powers as if nothing had changed would, when all is said and done, be to allow the employer to do that whichthe law is actually meant to prohibit. [50] Professor Côté comments as follows in this regard: [translation] [S]uch an approach, which would ultimately involve maintaining, without qualification, the employer’spower and prerogative to unilaterally dictate or change conditions of employment, in law or in fact, could quickly become paradoxical.

What would be the rationale for this rule if it were to be interpreted as affirming, under the guise of a prohibition againstchanging conditions of employment, a nearly absolute power to change such conditions by sophistically equating that power with acondition of employment? [p. 161] [51] An

interpretation that would leave the employer with all the freedom it had before the petition for certification wasfiled would be contrary to s. 41 of the

Interpretation Act, CQLR, c. I-16, which favours a broad and purposive

interpretation of theprovision. It seems to me that such an

interpretation would also overlook the fact that the employer ceases to have sole control overlabour relations in its business after the union arrives on the scene. Once the petition for certification is filed, the employer is dealingwith [translation] “the possible implementation of a new scheme of labour relations in the business, a system that is nowinstitutionalized”, and it must take this new system into account in exercising its management power: R.

Blouin, “La conventioncollective de travail en tant qu’instrument juridique non contractuel et monopolisateur des conditions de travail, d’où la problématiqueparticulière qui en découle dans le secteur de l’éducation”, in Barreau du Québec, vol. 235, Développements récents en droit du travaildans le secteur de l’éducation (2005), 51, at p. 68. [52] In this context, to find that there has been no unlawful change in conditions of employment within the meaning of s.59 of the Code, an arbitrator must do more than simply determine that the employer had the power to act the way it did before theunion’s arrival.

He or she must also be satisfied that the employer’s decision was consistent with its normal management practices or, inother words, that it would have done the same thing had there been no petition for certification. [53] There will often be an inevitable overlap between proving the employer’s power and proving that the power wasexercised in accordance with past management practices.

An arbitrator hearing a complaint concerning the resiliation of the contract ofemployment of an employee who had, without justification, no longer been performing his or her work for weeks can thus readilyconclude that the decision was based on a power that the employer would have exercised even if the petition for certification had notbeen filed. However, many situations arise in which proof of the existence of a power will not automatically support a conclusion that it

has been exercised in a particular way. For example, the fact that an employer can unilaterally increase its employees’ wages withoutnotice does not necessarily prove that it would have done so had a union not come on the scene. [54] Unlike s. 17 of the Code, s. 59 does not create a presumption “of change” or automatically reverse the burden ofproof, which continues to rest with the employees and the union. The latter must therefore adduce sufficient evidence to prove that thealleged change is inconsistent with the employer’s “normal management practices”.

However, nothing prevents the arbitrator hearingthe complaint from drawing presumptions of fact from the whole of the evidence presented before him or her in accordance with thegeneral rules of the law of civil evidence (arts. 2846 and 2849 C.C.Q.) as normally applied. As a result, if the union submits evidencefrom which the arbitrator can infer that a specific change does not seem to be consistent with the employer’s normal managementpractices, a failure by the employer to adduce evidence to the contrary is likely to have an adverse effect on its case (J.-C.

Royer and S.Lavallée, La preuve civile (4th ed. 2008), at p. 748). [55] Regardless of who adduced the evidence to be considered by the arbitrator, there are two ways for the arbitrator todetermine whether a specific change is consistent with the employer’s normal management practices. First, for the employer’s decisionnot to be considered a change in conditions of employment within the meaning of s. 59 of the Code, the arbitrator must be satisfied that itwas made in accordance with the employer’s past management practices.

In the words of Judge Auclair, the arbitrator must be able toconclude that the employer’s decision was made [translation] “in accordance with criteria it established for itself before the arrival of theunion in its workplace”: Pakenham, at p. 202. (See also Woolco (No. 6291), at pp. 7-8; Gravel & Fils Inc., at p. 90; Plastalène Corp.;Union des routiers, brasseries, liqueurs douces & ouvriers de diverses industries, at pp. 6-7; Société des casinos du Québec inc., at pp.16-19; Association des juristes de l’État v.

Commission des valeurs mobilières du Québec, at para. 75.) [56] Second, the courts have held that the employer must continue to be able to adapt to the changing nature of thebusiness environment in which it operates.

For example, in some situations in which it is difficult or impossible to determine whether aparticular management practice existed before the petition for certification was filed, the courts accept that a decision that is [translation]“reasonable”, based on “sound management” and consistent with what a “reasonable employer in the same position” would have donecan be seen as falling within the employer’s normal management practices (Gagnon et al., at p. 600; Burkett et al., at p. 171; PlastalèneCorp.; Syndicat des employés de Télémarketing Unimédia (CSN); Association des juristes de l’État v.

Commission des valeurs mobilièresdu Québec; Société du centre Pierre-Péladeau v. Alliance internationale des employés de scène et de théâtre, du cinéma, métiersconnexes et des artistes des États-Unis et du Canada (I.A.T.S.E.),

section locale 56, (T.A.); Travailleurs ettravailleuses de l’alimentation et du commerce,

section locale 501). [57] Thus, a change can be found to be consistent with the employer’s “normal management policy” if (1) it is consistentwith the employer’s past management practices or, failing that, (2) it is consistent with the decision that a reasonable employer wouldhave made in the same circumstances. In other words, a change [translation] “that would have been handled the same way had therebeen no attempt to form a union or process to renew a collective agreement should not be considered a change in conditions ofemployment to which

section 59 of the Labour Code applies”: Club coopératif de consommation d’Amos, at p. 12. [58] In either case, whatever the nature of the circumstances relied on by the employer in making the change, thearbitrator dealing with the complaint must first be satisfied that those circumstances exist and that they are genuine (see Gravel & FilsInc., at p. 91; Mont-Laurier (Ville de) v.

Syndicat des professionnels et professionnelles de la Ville de Mont-Laurier (CSN), (T.A.), at pp. 33-37; Syndicat des employés de Télémarketing Unimédia (CSN), at pp. 559-60; Syndicat des salarié-e-s de la Guildedes musiciens du Québec, at pp. 12-13; Syndicat des travailleuses et travailleurs du Centre d’approbation de Nordia — CSN v.

NordiaInc., (T.A.), at paras. 429-44). [59] When all is said and done, although the arbitrator has the power to assess the nature of the change contested by theunion and the context in which it was made, the Code, far from prohibiting all changes in conditions of employment, prohibits those thatare not consistent with the management policy the employer adopted or would have adopted before the union’s arrival. This analyticalapproach leaves the employer with the freedom of action it needs to continue operating its business as it did before that time.

Theapproach is thus perfectly consistent with the objectives of the statutory “freeze”, since it protects the employees’ rights withoutdepriving the employer of all of its management power. [60] The mechanism codified in s. 59 is by no means specific to Quebec, as it exists in all provinces of Canada and at thefederal level (Adams, at pp. 10-80.3 to 10-96; Burkett et al., at p. 171).

In all the general labour relations schemes in Canada, therefore,although the employer does not lose its right to manage its business simply because of the arrival of a union, it must, from that point on,exercise that right as it did or would have done before then (see Spar Aerospace Products Ltd. v. Spar Professional and Allied TechnicalEmployees Association, [1979] 1 C.L.R.B.R. 61; Metropol-Basefort Security Group Ltd. (1990), 79 di 139 (C.L.R.B.); Bizeau v.Aéroport de Québec Inc., 2004 CIRB 261 ; Public Service Alliance of Canada v. Hamlet of Kugaaruk, 2010 CIRB 554; D. J.

Corry, Collective Bargaining and Agreement (loose-leaf), vol. 1, at ¶9:1200). If the employer does not exercise itsprerogatives consistently, it is liable to whatever penalty the arbitrator considers appropriate in the circumstances.

(3) Arbitrator’s Powers [61] As in cases concerning the

interpretation or the application of a collective agreement, grievance arbitrators areempowered to rule on alleged violations of the right provided for in s. 59 (s. 100.10 of the Code; Syndicat des employés de laCommission scolaire du Haut St-Maurice; Syndicat canadien de la Fonction publique,

section locale 1450 v. Journal de Québec, division de Groupe Québécor inc., [1996] R.J.Q. 299 (Sup. Ct.); Syndicat des salariés des Industries Leclerc (CSD); Sobey’s inc., No 650v. Syndicat des travailleurs et travailleuses de Sobey’s de Baie-Comeau, (QC SAT), [1996] T.A. 721; UniversitéMcGill v. Munaca, [2003] (QC SAT), AZ-50193382 (T.A.), at para. 44, aff’d [2004] (QC CS),AZ-50264810 (Sup. Ct.)). [62] Where an arbitrator upholds a complaint, s. 100.12 of the Code and art. 1590 C.C.Q. confer broad powers on him orher to compel the employer to remedy any harm it may have caused.

The arbitrator has a [translation] “power of correction andreparation that is sufficiently effective for him or her to really decide the grievance and ensure that all concerned can fully enjoy their

rights” (Morin and Blouin, at p. 547; see D. Veilleux, “La portée du pouvoir remédiateur de l’arbitre. . . Contestée!” (1995), 55 R. du B.429; Alberta Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28, [2004] 1 S.C.R. 727, at para. 40; HôpitalSt-Charles de Joliette v. Syndicat des employés d’hôpitaux de Joliette inc., [1973] R.D.T. 129 (C.A.), at p. 134; Association des pompiersde Montréal inc. (APM) v.

Montréal (Ville de), 2011 QCCA 631 ; see also Verge, Trudeau and Vallée, at pp. 212 et seq.). [63] In the case of a complaint under s. 59, the legislative origin of the employer’s duty does not limit the scope of thearbitrator’s remedial power. In 1977, the Quebec legislature decided that complaints of unlawful changes to conditions of employmentshould be dealt with as if they were grievances (An Act to amend the Labour Code and the Labour and Manpower Department Act, S.Q.1977, c. 41, s. 48).

Since that time, arbitrators ruling on alleged violations of s. 59 have had exactly the same remedial powers as if theywere deciding a grievance filed under a collective agreement (Automobiles Canbec inc. (per Otis J.A.); Travelways Ltd. v. Legendre,[1987] (QC CS), AZ-87149123 (Sup. Ct.); Morin and Blouin, at pp. 203-4). In appropriate circumstances, therefore,an arbitrator can order reparation in kind, such as the reinstatement of a condition of employment. Where the circumstances do not lendthemselves to such a remedy, however, the arbitrator can order reparation by equivalence.

The latter remedy will be appropriate wherethe employer goes out of business either in part or completely, at least insofar as it is impossible to reinstate the employees dismissed incontravention of s. 59. D. Closure of a Business and Application of

Section 59 [64] Wal-Mart argues that the closure of its Jonquière establishment bars its employees from invoking s. 59. In thealternative, it submits that in any event, the closure constitutes a full defence that justifies the change in the employees’ conditions ofemployment. Neither of these arguments is valid. In my opinion, the employer is (1) neither shielded by the closure of its establishment(2) nor, otherwise, relieved of the burden of proving that its decision was consistent with its normal management practices.

(1) Applicability of

Section 59 in the Context of the Closure of a Business [65] On appeal, Vézina J.A. relied essentially on Plourde to hold that the closure of a business rules out any possibility ofapplying s. 59 of the Code. More specifically, he reproduced para. 35 of that judgment, in which the majority of this Court had stressedthat “[t]he reference in s. 15 to an order to ‘reinstate such employee in his employment’ signals quite unambiguously the legislativecontemplation of an ongoing place of employment as the foundation of a successful s. 15 application” (emphasis in original).

Basing hisanalysis on this passage, Vézina J.A. stated: [translation] To remedy an unlawful change in a condition of employment, it is necessary to return to the former situation,to restore the operation of the business to how it was run before. By way of analogy, to remedy an allegedly unlawful closure, it wouldbe necessary to reopen the business, to begin operating again.

This remedy is not possible, however, given that no one can be forced to continue operating a business no matter what hisor her reasons for closing it might be. [paras. 121-22] [66] With respect, the passage from Plourde quoted by Vézina J.A. does not support a conclusion that “[t]o remedy anunlawful change in a condition of employment, it is necessary to return to the former situation, to restore the operation of the business tohow it was run before.” Rather, the passage in question leads to the conclusion that Plourde was based essentially on the words of s. 15(see also in Plourde, paras. 36, 39 and 54).

According to the majority of this Court, those words, in placing limits on the powers of theCommission des relations du travail, only authorize it to order that the dismissed employee be reinstated. Such a result necessarilypresupposes the existence

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