2022 QCCA 180, 2022 QCCA 180

Unofficial English Translation of the Judgment of the Court Association des cadres de la société des casinos du Québec c. Société des casinos du Québec 2022 QCCA 180 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-027985-183 (500-17-097007-176) DATE: February 8, 2022 CORAM: THE HONOURABLE GUY GAGNON, J.A. MARIE-JOSÉE HOGUE, J.A. MICHEL BEAUPRÉ, J.A. ASSOCIATION DES CADRES DE LA SOCIÉTÉ DES CASINOS DU QUÉBEC APPELLANT – Impleaded Party v. SOCIÉTÉ DES CASINOS DU QUÉBEC INC.

RESPONDENT – Applicant and ADMINISTRATIVE LABOUR TRIBUNAL IMPLEADED PARTY – Defendant and ATTORNEY GENERAL OF QUEBEC IMPLEADED PARTY – Impleaded Party Table of Contents Table of Contents 2 Preliminary Comments: 4 1. Context 8 1.1. The Employer, the Association and their relationship 8 1.2. Complaint to the Committee on Freedom of Association of the International Labour Organization and outcome 11 1.3. The proceedings 15 2. The ALT Decision 17 3. The Judgment Under Appeal 22 4.

The issues in dispute 26 4.1 Did the Superior Court err in upholding the ALT’s decision that the Association’s notice to the AGQ under art. 95 of the former Code of Civil Procedure was sufficient and admissible with respect to the constitutional argument based on substantial interference with the right to strike? 26 4.2 Did the Superior Court, sitting in judicial review, correctly identify the applicable standards of review? 26 4.3 Did the Superior Court properly apply the standards of review in reversing the ALT’s constitutional analysis and the resulting conclusion that the exclusion of managerial personnel from the definition of “employee” set out in s. 1(

l) subpara.

(1) L.C. infringes the freedom of association guaranteed to the OSs? 26

4.4 If not, did the ALT commit a reviewable error in concluding that this infringement is not justified under s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter ? 26 4.5 If the infringement is not justified, did the ALT commit a reviewable error in selecting the appropriate remedy by declaring that the disputed exclusion is inoperative as regards the Association and the employees covered by the petition for certification? 26 5.

Analysis 27 5.1 Did the Superior Court err in upholding the ALT’s decision that the Association’s notice to the AGQ under art. 95 of the former Code of Civil Procedure was sufficient and admissible with respect to the constitutional argument based on substantial interference with the right to strike? 27 5.2 Did the Superior Court correctly identify the applicable standards of review? 28 5.3 Did the Superior Court properly apply the standards of review in reversing the ALT’s constitutional analysis and the resulting conclusion that the exclusion of managerial personnel from the definition of “employee” set out in s. 1 (

l) subpara.

(1) L.C. infringes the freedom of association guaranteed to the OSs? 29 5.3.1 The disputed exclusion: legislative history 30 5.3.2 International agreements and domestic constitutional and quasi-constitutional provisions 38 5.3.3 Purpose and scope of freedom of association: jurisprudential evolution 42 5.3.4 The analytical framework applicable to the case at bar: the rulings in Dunmore /Baier and MPAO 47 5.3.5 The reviewable errors the Superior Court committed in the exercise of its power of judicial review 56 5.3.6 Application to the issue at hand 63 5.4 If not, did the ALT commit a reviewable error in concluding that this infringement is not justified under s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter ? 67 5.5 If the infringement is not justified, did the ALT commit a reviewable error in selecting the appropriate remedy by declaring that the disputed exclusion is inoperative as regards the Association and the employees covered by the petition for certification? 72 JUDGMENT Preliminary Comments: [ 1 ] As author Roger Chartier summarized at the beginning of an

article published nearly 60 years ago, shortly after the Labour Code [1] came into force: [ translation ] Whatever one may think about managerial unionism, the notion, both as a concept and as a fact, should be placed within the broader context of the social, economic, political and legal reality of the very environment in which one wishes or fears its development. [2] [ 2 ] Doctrinal viewpoints on the appropriateness of excluding managerial personnel from the definition of “employee” set out in the L.C. [3] —and, consequently, from the “ordinary law” labour relations scheme [4] it established—are therefore not new.

Other observations and criticisms made over the years, which are still relevant today, are also useful for putting this issue within its proper socio-legal perspective. [ 3 ] As commentators have noted, the watertight management versus workers compartments—established by the Wagner labour relations model of the 1930s and echoed, in 1944, in our Labour Relations Act [5] and subsequently, in 1964, in the L.C. —which arose from the traditional authority and decision-making structures and the traditional relationship between “managers” and “performers”

within organizations, have burst. Consequently, the two essential and distinct categories of that time, that is, [ translation ] “labour and management—those who obey and perform, on the one hand, and those who give orders, at any level whatsoever, on the other hand” [6] —have undergone significant changes, and the lines separating them are less well defined. [7] That being said, the exclusion of all levels of managerial personnel from the definition of “employee” in s. 1 (

l) subpara.

(1) L.C. maintains this traditional notion of labour relations, which author Jean-Réal Cardin has described as follows: [ translation ] The term “managerial personnel” necessarily means “those who participate in managing”, the latter function being considered a homogeneous and indivisible whole that does not admit any differentiation in terms of status or the particular interests that may arise therefrom .

It is a monolithic block that extends from senior management to those who hold even the smallest bit of authority within the company —foremen, team leaders, etc.— and stands opposite to the other block , that of the workforce composed exclusively of those who only perform. [8] [Emphasis added] [ 4 ] Equally relevant, author Rodrigue Blouin pointed out that [ translation ] “the scheme of titles”—namely “manager, superintendent, foreman or representative of the employer in his relations with his employees”—which was initially set out in s. 1 (

m) subpara. (1) of the 1964 L.C. and is reiterated word for word in the current s. 1 (

l) subpara. (1), [ translation ] “merely reproduces the principles by which companies in the era of industrial production were organized”. [9] [ 5 ] This traditional perception and the divergent views it has generated over the years are also evident in the following excerpt from Montgomery, J.A.’s opinion in Syndicat des cadres des hôpitaux de la région de Montréal (C.S.N.) c.

Hôpital du Sacré-Cœur de Montréal , [10] an opinion rendered almost forty years ago, in the early days of the coming into force of the Canadian Charter of Rights and Freedoms [11] and of the freedom of association enshrined in its s. 2( d ) : With all respect for Judge Brière, I agree with the judge in the Superior Court that he was exceeding his jurisdiction by attempting to legislate and to set up a new category of “cadres inférieurs et subalternes”.

Such a category is not contemplated by the Labour Code ; an employee may not “hunt with the hounds and run with the hare” . [Emphasis added] [ 6 ] Lastly, more recently, Professor Fernand Morin posed the following legitimate questions: [ translation ] Thus, managerial personnel, i.e., those who oversee and who, depending on the hierarchical structure of each company, represent the employer, but to varying degrees, are excluded from the scheme.

According to the principle of unity of management, each of these members of management acts by virtue of a delegation of authority and the acts performed in this capacity are deemed to be those of the employer for the purposes of managing the company. Given this organizational logic, it was not desirable, when establishing working conditions, that said members of management, who are nevertheless legally employees according to

article 2085 C.C.Q. , be in a situation of conflict of interest between the other employees and their own principals. The intention was to keep them on the side on which they are when carrying out their managerial duties. […] The debate, however, might possibly be reopened if an association of managerial personnel were to seek certification to represent only managerial employees vis-à-vis their common employer. In such a case, we would have to address these two other questions head on : First question: Is the expression “representative of the employer in his relations with his employees” ( s. 1 ( l ). subpara.

(1) L.C. ) an absolute or relative exclusion , namely one that covers only the employees under the direction of a manager?

Second question: If managers are employees within the meaning of the Civil Code (art. 2085 C.C.Q .) and their freedom of association in that capacity is guaranteed under the Charter , as the ruling in Health now recognizes, how can one justify such a drastic exclusion when a “relative” one could suffice ? [12] [Emphasis added] [ 7 ] This appeal provides an opportunity to give these perspectives and the questions they raise the renewed attention they deserve, particularly in light of the protection afforded to freedom of association in the quasi-constitutional [13] and constitutional [14] texts of the 1970s and 1980s and in light of the evolution of the purpose and scope of that freedom in the most recent Supreme Court jurisprudence.

As Deschamps, J., noted in her concurring reasons in Ontario (Attorney General) v.

Fraser : “Canadian labour law is not static.” [15] * * * [ 8 ] In the present matter, the appellant (the “Association”) appeals against a judgment rendered on November 5, 2018, by the Superior Court, District of Montreal (the Honourable Madam Justice Chantal Lamarche). [16] [ 9 ] That judgment granted the application for judicial review of the respondent (the “Employer”) and overturned the interlocutory decision rendered on December 7, 2016, by one of the impleaded parties, the Administrative Labour Tribunal (the “ALT”), [17] which declared that the exclusion of managerial personnel from the definition of “employee” set out in s. 1 (

l) subpara.

(1) L.C. is constitutionally inoperative as regards the Association’s members as well as for purposes of examining the petition for certification filed by the Association:

1 . In this Code, unless the context requires otherwise, the following expressions mean: […] ( l ) ”employee” : a person who works for an employer and for remuneration, but the word does not include : (1) a person who, in the opinion of the Tribunal, is employed as manager, superintendent, foreman or representative of the employer in his relations with his employees ; […] 1. Dans le présent code, à moins que le contexte ne s’y oppose, les termes suivants signifient: […]

l) «salarié»: une personne qui travaille pour un employeur moyennant rémunération, cependant ce mot ne comprend pas : 1° une personne qui, au jugement du Tribunal, est employée à

titre de gérant, surintendant, contremaître ou représentant de l’employeur dans ses relations avec ses salariés ; […] [Emphasis added] [ 10 ] The crux of the appeal consists in determining whether the judge erred in exercising her power of judicial review when she overturned the ALT’s conclusions to the effect that: (

i) the exclusion set out in s. 1(

l) subpara.

(1) L.C. infringes the freedom of association of the Association’s members as guaranteed under s. 2(

d) of the Canadian Charter of Rights and Freedoms [18] (the “ Canadian Charter ”) and s. 3 of the Charter of Human Rights and Freedoms [19] (the “ Quebec Charter ”); (ii) the Attorney General of Quebec (the “AGQ”) failed to demonstrate that this infringement is justified under s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter ; and (iii) in the circumstances, the appropriate remedy is to declare that the disputed exclusion is inoperative as regards the Association’s members for purposes of examining the petition for certification filed by the Association. [ 11 ] The Court concludes that the appeal is well founded and that the Superior Court judgment should be reversed and the ALT Decision restored.

However, the Court will suspend the declaration regarding the disputed exclusion’s inoperability for a period of 12 months so as to give the government the opportunity to take the steps it considers appropriate, should it wish to do so. [ 12 ] We begin with a review of the context, which will be helpful in understanding this conclusion and the reasons behind it. 1. Context [ 13 ] The ALT’s reasons are set out in 443 paragraphs. Nearly 300 of those paragraphs relate to the documentary and testimonial evidence, a significant portion whereof is reproduced in the appeal record.

The Judgment Under Appeal itself has 269 paragraphs, of which nearly 100 pertain to the evidence or the ALT’s assessment of that evidence. [ 14 ] On the whole, the Court is of the opinion that the following are the essential facts for purposes of adjudicating the appeal. Other, more specific, facts will be addressed later in the analysis of the issues. 1.1. The Employer, the Association and their relationship [ 15 ] The Employer , a company established in 1992, is a subsidiary of the Société des loteries du Québec (“Loto-Québec”).

It is in charge of managing four casinos, one in Montreal (the “Casino” for purposes of this judgment), one in Charlevoix, one in Lac Leamy and one in Mont Tremblant. [ 16 ] At all relevant times it was managed by a president of “operations”, to whom a director general for each casino reports.

Within their own casino, each of these directors general, in turn, is the immediate superior of a gaming director, among others. [ 17 ] The operations of each casino are divided into three gaming sectors: the gaming table sector (e.g., “roulette” tables), the slot machine sector [20] and the poker room sector. [ 18 ] The ALT’s general description of the organizational structure of the gaming sectors at the Casino is not disputed: [ translation ] [110] The organizational structure in the Casino’s gaming sector is broken down into five levels of management: the director general, the gaming director, two department heads, the operations heads, and the operations supervisors ( OSs ).

The fifth level is comprised of first-level managers, who are the subject of this petition. They supervise the croupiers, who are unionized employees.

[111] The OSs are responsible for ensuring the smooth operation of activities, including compliance with the gaming rules, and for customer service. At the time of the hearings, each OS was assigned to a team of croupiers, ranging in number from two to five. The OSs are, in a sense, the “employer’s eyes and ears on the floor”. […] [315] In the case at bar, the individuals in question are first-level managers in an organization with five or more levels of management. They often come from the very group they supervise.

While they are “the employer’s eyes and ears on the floor”, they do not have the special relationship with the company that higher-level managers may have. They do not participate in setting the company’s orientations. Nor do they play a strategic role in labour relations: they do not negotiate collective agreements; they see to their application in day-to-day activities.

In short, first-level managers are truly “between a rock and a hard place”. [Underlining added; boldface in the original] [ 19 ] The operations supervisors (“OSs”) in the gaming table sector to whom the ALT refers, who are members of the Association, are also referred to by the Association and the Employer as [ translation ] “table managers” or [ translation ] “first-level managers”, as discussed below. [ 20 ] As the parties confirmed at the hearing, it was not disputed that the OSs perform certain functions that confer the status of managerial personnel on them, which led the ALT [21] and the Superior Court [22] to recognize them as such. [23] [ 21 ] The Association was formed in 1997, under the Professional Syndicates Act , [24] in response to the Employer’s unilateral change in the work schedules of the OSs. [25] From the outset, the Association’s objective was to be recognized by the Employer so as to be able to represent the OSs and negotiate their working conditions. [ 22 ] At the time of the ALT hearing, the Association’s membership included 250—or 70%—of the OSs assigned to the Casino’s gaming table sector, thereby comprising the majority of the Casino’s OSs across all gaming sectors.

The Employer, however, considers each sector separately and therefore does not recognize the Association as being representative of the OSs for the slot machine and poker table sectors. [ 23 ] On September 19, 2001, following the Employer’s refusal to consent to a written agreement concerning, among other things, the deduction at source of the OSs’ dues upon hiring and the improvement of certain OS working conditions, [26] the Employer and the Association entered into a “Memorandum of Understanding” (the “Memorandum”) containing four sections. [27] [ 24 ]

Section 1 recognizes the Association as [ translation ] “representing the table managers” of the Casino who are members of the Association, but makes its representative character with respect to the other OSs subject to the Employer’s approval. It also provides for meetings of a [ translation ] “joint committee […] for the purpose of discussions and exchanges on the parties’ concerns […] with a view to seeking win-win solutions”, with the [ translation ] “data, studies and other relevant documents available and necessary for discussions and for an understanding of the various issues” being provided by the Employer. Finally,

section 1 states that the working conditions [ translation ] “of the table managers and first-level managers will be set out generally” in an [ translation ] Employee Handbook . [ 25 ]

Section 2 states that the Employer [ translation ] “is relying” on the [ translation ] “sense of responsibility” of the table managers, as well as on their [ translation ] “institutional loyalty and continued commitment”, and that the Association will be consulted [ translation ] “prior to the determination or modification” of their working conditions. [ 26 ]

Section 3 provides that the Employer will send the Association a list of its members on an annual basis and will deduct the dues from their pay. [ 27 ] Finally,

section 4 provides for a paid union leave for two Association representatives for the purpose of meetings with the Employer’s representatives, and for a paid union leave for three Association representatives for the purpose of the Association’s annual meetings, but adds that the Association will reimburse to the Employer, [ translation ] “upon receipt”, the invoice sent to it by the Employer for the salary and [ translation ] “all monetary contributions” paid to the [ translation ] “aforementioned representatives granted leave”. [ 28 ] The Memorandum does not provide for a dispute resolution mechanism, nor does it set out an expiry date, or an obligation for the parties to renegotiate its terms as needed or on fixed dates.

Based on the evidence, the ALT determined, as an incidental finding, that despite numerous requests by the Association, the Employer and Loto-Québec have consistently refused to update or amend the Memorandum. This finding is supported by the evidence, and the judge did not question it. [28] 1.2.

Complaint to the International Labour Organization’s Committee on Freedom of Association and outcome [ 29 ] In light of the Association’s failed attempts in approaching the Employer for purposes of the concerted implementation of certain principles set out in the Memorandum, on March 18, 2003, the Association joined other management associations [29] to file a complaint with the Committee on Freedom of Association (the “Committee”) of the International Labour Organization (“ILO”). [30] In the complaint they alleged: […] that their right of association is not adequately protected against employer interference, that they cannot conduct collective bargaining concerning the working conditions of managerial staff in Quebec, that, in the absence of the right to strike, they do not possess a mechanism for settling labour disputes, and that the exclusion of managerial staff from the general provisions of collective

labour law in Quebec is fundamentally discriminatory. [31] [ 30 ] On April 23, 2004, the Government of Quebec submitted its comments to the ILO. [ 31 ] On November 25, 2004, the Committee concluded the following regarding, in particular, the situation of the OSs, and it then presented its recommendations to the Governing Body of the International Labour Office: […] 463.

In view of all of the above, the Committee requests the Government to amend the relevant sections in the Labour Code of Quebec so that managerial personnel enjoy the right to benefit from the general provisions of collective labour law and form associations that enjoy the same rights, prerogatives and means of redress as other workers’ associations. 464. The Committee’s conclusions on the other aspects of the complaint follow, with appropriate adaptations, from the conclusion above. 465.

As regards the recognition of the associations and of their right to bargain collectively , the Committee notes that, under the current system, the complainant associations do enjoy a real form of recognition by their respective employers and participate in the elaboration of their members’ employment conditions. These contractual arrangements, therefore, constitute an embryonic form of legal recognition, but one which is not enshrined in a legislative text.

The examples given by the complainant associations demonstrate that this recognition is precarious, that it varies among different employers and workplaces, and that working conditions are not codified in real collective agreements accompanied by the relevant rights and guarantees . The precariousness of this situation and the uncertainty which it creates in labour relations result from the absence of real legal recognition, within the meaning of the Labour Code , of managerial personnel as “employees” and of their associations with all the rights that would accompany such recognition . 466.

As regards the issue of the settlement of collective disputes , the exclusion of managerial personnel from the Labour Code means that they do not have access to the usual mechanisms and forms of redress laid down in the Code (conciliation, arbitration, strike).

In this regard, the Committee recalls that the right to strike is one of the essential means through which workers and their organizations may promote and defend their economic and social interests […] This right may be restricted or prohibited: (1) in the public service only for public servants exercising authority in the name of the State; or (2) in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population). […] The evidence adduced shows that the members of the complainant associations are not public servants, and that the duties of the members of at least two of the complainant associations cannot be included in a strict definition of essential services: namely, the inspectors in casinos, who are members of the ACSCQ ; and SAQ branch managers, who are members of the ADDS/SAQ. […] As a result, the Committee requests the Government to take the desired steps to ensure that the managerial personnel concerned have the same access to mechanisms for collective bargaining and dispute settlement as other workers, in accordance with the principles of freedom of association . 467.

With regard to measures of protection against acts of employer interference and domination , the allegations show that this protection leaves much to be desired.

Attempts have been made to reduce the amount of leave granted to attend to association activities; requests for such leave have been refused; employers have directly consulted managerial staff, bypassing their associations ; local employers have discouraged management from belonging to these associations; employers have refused to deduct membership fees; there has been discriminatory treatment in the choice of associations allowed to participate jointly in the administration of insured pension plans.

In the final analysis, it is the opinion of the Committee that all of these actions cannot but have the effect of leading current and potential members of the associations to wonder why they should belong to them, since collective bargaining and related rights are not covered by the Code, and since there is no real legal protection against acts which would be punishable by the Code if perpetrated against employees who are covered by the general collective system of labour relations .

The provisions of the Criminal Code mentioned by the Government in this respect are not applied by a specialized jurisdiction (such as a labour commission or a labour court) and, in addition do not offer the same level of protection given the necessary onus and degree of proof.

The Committee therefore requests the Government to amend the legislation and take the required measures to ensure that the managerial personnel concerned have the same access to means of redress and mechanisms of protection as other workers covered by the Labour Code against acts of employer interference and domination, in accordance with the principles of freedom of association . […] 470. In light of its foregoing conclusions , the Committee invites the Governing Body to approve the following recommendations: (

a) The Committee requests the Government to amend the Labour Code of Quebec in order that managerial personnel enjoy the rights flowing from the general provisions of collective labour law and may establish associations that enjoy the same rights, prerogatives and means of redress as other workers’ organizations, with particular regard to mechanisms for collective bargaining and dispute settlement and protection against acts of employer domination or interference, all in accordance with the principles of freedom of association. (

b) The Committee requests the Government to keep it informed of the development of all aspects of the situation mentioned above and, in particular, of the measures taken to ensure that legislation is brought into line with the principles of freedom of association. (

c) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case. [32] [Emphasis added] [ 32 ] After the filing of the complaint and following the Committee’s recommendations, there were various communications between the Committee, the International Labour Office, the Government of Quebec, certain provincial political bodies and the complainant associations, with a view to advancing the latter’s demands.

[ 33 ] In March 2005, the Government set up an interdepartmental committee to study the Committee’s recommendations, which led to the adoption, on September 5, 2007, of a draft Guide on Good Governance [33] concerning the situation of managerial personnel in the public and parapublic sectors, which Guide, however, was not imposed on Crown corporations or their subsidiaries, given their acknowledged degree of autonomy.

Thus, in a letter dated December 12, 2007, of which a certified copy was sent to the Association, among others, the Associate Secretary of the Sous-secrétariat aux ressources humaines et aux relations de travail of the Conseil du trésor wrote: [ translation ] […] the Government of Quebec does not intend to impose on external employers in the public and parapublic sectors […] any form of recognition of an association of managerial personnel for labour relations purposes.

As you are no doubt aware, the Government of Quebec recently clarified the governance aspects of Crown corporations with respect to the powers of their boards of directors over human resources management (Act respecting governance, 2006, c. 59 ). That being said, it would contravene this decision if it were to interfere with the human resources management of these organizations by requiring them to recognize associations of managerial personnel.

As for the other employers in Quebec (municipalities, subsidiaries of Crown corporations), their independence in matters of human resources management makes it difficult for the government to take coercive measures forcing them to recognize such associations of managerial personnel . […] [Emphasis added] [ 34 ] On May 2, 2008, at a meeting between the Association’s representatives and the Casino’s director general, the latter informed the Association’s representatives that the Employer did not see the need or interest in allowing other first-level managers to join the Association and, by analogy with the then existing situation involving the unionized croupiers, that the Association would still be denied the opportunity to [ translation ] “present a united front” for negotiations. [34] [ 35 ] The following November, after what appeared to be promising discussions, the director of human resources confirmed to the Association the Employer’s refusal to allow OSs other than those assigned to the gaming tables to join the Association, and he added that he had no mandate to renegotiate the Memorandum and that, if he did, it would be to [ translation ] “take things away rather than give things away”. [35] [ 36 ] The Association subsequently noted that its situation had not progressed despite discussions with representatives of the Employer, Loto-Québec and the government, who sometimes passed the buck to one another, in addition to being frequently replaced. [36] 1.3.

The proceedings [ 37 ] On November 10, 2009, the Association filed a petition for certification with the Commission des relations du travail [37] (“CRT”) pursuant to ss. 25 et seq. of the L.C. Among other things, it asked that the exclusion of managerial personnel from the definition of “employee” set out in s. 1(

l) subpara.

(1) L.C. be declared “constitutionally inoperative” against it and its members because it infringes the freedom of association guaranteed by the Charters .

The group of employees covered by the petition for certification is described as follows: [ translation ] First-level managers (Classes 4 and 4a) in the gaming sector, namely, games offered at gaming tables, at slot/Keno machines, in poker rooms and in any other lottery system of a similar nature, for the purpose of operating a state-run casino at the Employer’s establishment located at 1 Casino Avenue, Montreal, Quebec. [ 38 ] On November 24, 2009, the Employer filed a motion to dismiss the petition for certification.

It argued that the CRT did not have jurisdiction to rule on the certification of non-employees and, consequently, on the constitutional issue raised. [ 39 ] On November 26, 2009, the Association sent an initial notice to the AGQ under art. 95 of the former Code of Civil Procedure . [ 40 ] On April 14, 2010, the CRT dismissed the Employer’s motion to dismiss. [38] [ 41 ] In a judgment dated January 23, 2012, the Superior Court granted the Employer’s application for judicial review of that decision, [39] which judgment was reversed by this Court’s ruling confirming the CRT’s jurisdiction. [40] [ 42 ] On April 23, 2012, the Association asked the Minister to refer to arbitration, under s. 59 L.C. , a disagreement over changes in work schedules and a significant reduction in the hours of work of its members.

The Employer challenged the arbitrator’s jurisdiction by way of a new motion to dismiss, which the arbitrator dismissed; the arbitrator’s decision was upheld by the Superior Court this time [41] as well as by this Court. [42] [ 43 ] In its second follow-up report of October 2013, the ILO Committee took note of the information received to date, indicated that it “deeply regret[ted]” that, according to the Association, no progress had been made “even though more than nine years [had] passed” since its recommendations, and it “[requested] the Government to keep it informed of developments in the legal proceedings relating to the ACSCQ’s certification process and to the contesting of the constitutionality” of the exclusion of managerial personnel from the definition of employee in the Labour Code . [43] [ 44 ] In August 2014, the Association filed a new complaint under s. 59 L.C .

It alleged that the Employer had unilaterally abolished a

work

schedule recognized until then for the Association’s members, and it requested the reinstatement of that schedule. [ 45 ] On October 16, 2014, the Association notified an amended notice to the AGQ announcing its intention to have the exclusion set out in s. 1(

l) subpara.

(1) L.C. declared constitutionally inoperative against the managerial personnel covered by its petition for certification, on the ground that this provision prevents them from having the Association recognized as their [ translation ] “exclusive bargaining agent” and therefore deprives them of their right to collectively bargain over their working conditions. [ 46 ] The parties agreed to proceed preliminarily on the constitutional issue.

Indeed, the need to address the merits of the Association’s petition for certification will depend on the final outcome of the constitutional issue. [ 47 ] On October 19, 2015, the Association filed another complaint under s. 59 L.C. , this time alleging that the Employer had unilaterally changed the parking facilities available until then to its members near the Casino. [ 48 ] On December 7, 2016, the ALT rendered the decision at issue. It concluded that the exclusion of managerial personnel from the definition of “employee” set out in s. 1(

l) subpara.

(1) L.C. infringes the freedom of association guaranteed to the OSs by the Charters and declared that the exclusion is inoperative with respect to them and for purposes of considering the Association’s petition for certification. [ 49 ] On January 6, 2017, the Employer filed an application for judicial review of that decision in the Superior Court. [ 50 ] The Judgment Under Appeal, which set aside the ALT Decision and declared the disputed exclusion [ translation ] “constitutionally applicable, valid and operative”, was rendered on November 5, 2018. [ 51 ] As the Association’s application for leave to appeal was not contested by the Employer or the AGQ, it was granted on January 23, 2019. [44] 2.

The ALT Decision [ 52 ] The ALT Decision reflects a careful analysis of the applicable principles and the evidence. [ 53 ] The ALT also carried out a detailed review of the socio-legal status of managerial associations, first at the international level, [45] then elsewhere in Canada [46] and, finally, in Quebec. [47] In this regard, after considering the parties’ arguments as to the probative value of Michel Coutu’s expert report on the unionization of managerial personnel in Quebec, the ALT concluded that the report was useful and probative as a whole. [48] [ 54 ] The ALT then described the organizational structure of the Employer [49] and the Association, [50] and went on to recount the history of their interactions at various stages— namely their interactions relating to the signing of the Memorandum; [51] to the attempts to apply it in a concerted fashion; [52] to the various steps taken by the Association vis-à-vis the Employer, and at times vis-à-vis Loto- Québec, with a view to resolving disagreements related to (

i) the denial of its representative character, (ii) the Employer’s refusal to set out the understandings between the parties in an enforceable agreement, and (iii) certain working conditions, [53] including unilateral decisions on or changes to certain working conditions; [54] as well as their interactions related to the disputes that arose between the parties after the petition for certification was filed. [55] [ 55 ] Based on the evidence, the ALT found that: - despite requests from the Association, the Employer and Loto-Québec have always refused to modify or complete any of the provisions of the Memorandum, which has therefore remained unchanged since it was signed in 2001; [56] - despite repeated requests from the Association, based in particular on the overall majority membership of the OSs, the Association’s representative character and the determination of the group for which it can, or cannot, be recognized are at the discretion of the Employer; [57] - the Employer established a work

schedule committee; it decided the committee’s composition and invited OSs assigned to the gaming table sector who are not members of the Association to sit on the committee, thus confirming its refusal to consider the Association as the spokesperson for all gaming table OSs, despite the fact that 70% of those OSs are members of the Association; [58] - the Employer has refused to make deductions at source for the dues of OSs who are members in good standing of the Association but are assigned to the slot machine or poker room sectors rather than the gaming table sector; - while some of the Association’s demands were met after meetings with the Employer’s representatives, others were refused, since the Employer has the final say and the upper hand during discussions, given the absence of [ translation ] “any mechanism in the event of a dispute”; [59] - the Employer [ translation ] “carefully” refuses to characterize exchanges between it and the Association regarding the working conditions of the OSs who are members of the Association as [ translation ] “negotiations”, [60] or to set out the resulting understandings in a formal agreement or other type of joint and enforceable written document; - instead, these working conditions are included in documents prepared by the Employer, such as the 2004 [ translation ] Guide to Working Conditions for managerial staff, which was distributed without prior consultation with the Association; [61] - the Association is not invited by the Employer to negotiate the salary ranges set out annually in the [ translation ] Employee Handbook, nor the salary increases and bonuses, whose rules were determined unilaterally in 2010;

- in 2008, the Association was not invited to participate in a meeting of the managerial personnel pension plan committee, unlike representatives of other employee groups, and the 2009 change from a defined contribution plan to a defined benefit plan was not preceded by discussions with the Association; [62] - the group insurance plan was also modified at that time, without prior consultation; [63] - in 2012, an advisory committee on the 2013-2014 work schedules was established and the Employer accepted its proposal, but this process was not repeated in subsequent years and, in addition, the schedules put into place in 2013-2014 were withdrawn for subsequent years without prior consultation; - contrary to the terms of the [ translation ] Employee Handbook , in 2015 the Employer unilaterally relocated the free parking spaces provided to the OSs, which until then had been located near the Casino, moving them several kilometres away; - the existing labour relations scheme provides no protection against interference or obstruction by the Employer regarding the Association’s representative character; [64] and - the Association is unable to collectively negotiate the working conditions of its members due to the imbalance of power between the parties. [65] [ 56 ] The ALT then summarized the parties’ claims [66] and set out the applicable law on freedom of association, as derived in particular from the Supreme Court rulings in MPAO , [67] Meredith v.

Canada (Attorney General) (“ Meredith” ) [68] and Saskatchewan Federation of Labour v. Saskatchewan (“ Saskatchewan ”), [69] all rendered in 2015. [70] [ 57 ] Its factual findings regarding the status of the OSs contemplated in the Association’s petition for certification are summarized as follows: [ translation ] [315] In the case at bar, the individuals in question are first-level managers in an organization with five or more levels of management. They often come from the very group they supervise.

While they are “the employer’s eyes and ears on the floor”, they do not have the special relationship with the company that higher-level managers may have. They do not participate in setting the company’s orientations. Nor do they play a strategic role in labour relations: they do not negotiate collective agreements; they see to their application in day-to-day activities.

In short, first-level managers are truly “between a rock and a hard place”. [ 58 ] Against this backdrop, the ALT formulated the central issue before it as follows: [ translation ] [295] Does the exclusion of the status of managerial personnel from the definition of “ employee ” in the Code infringe the freedom of association guaranteed under s. 2(

d) of the Canadian Charter and s. 3 of the Quebec Charter of the persons contemplated in the petition for certification? [ 59 ] The ALT then applied [ translation ] “the analysis method established by the Supreme Court in Big M Drug Mart and followed in MPAO ”, [71] and essentially concluded: (

a) that the purpose of excluding managerial personnel from the definition of “employee” set out in the L.C. is to prevent them from bargaining collectively; [72] (

b) that, nonetheless, since [ translation ] “the matter at hand does not involve a complete denial of freedom of association”, it is necessary to assess the effects of the infringement in order to determine [ translation ] “whether they constitute substantial interference”; [73] and (

c) that the effects of the disputed exclusion on the representativeness and independence of the Association and on its ability and that of its members to collectively bargain working conditions, including the possibility of resorting to strike action, substantially impede the establishment of a true collective bargaining process. [74] [ 60 ] The ALT further noted that it would also have found that the freedom of association guaranteed to the OSs was being infringed had it instead applied the analytical framework in the 2007 Supreme Court ruling in Baier v.

Alberta , [75] because, considering the legislative exclusion at issue, the state is responsible for substantially interfering with the right of the OSs and the Association to a meaningful collective bargaining process [ translation ] “in light of the international agreements applicable in Canada”, given its refusal to honour its commitments and to follow up on the recommendations of the ILO’s Committee on Freedom of Association. [76] [ 61 ] Having found that the disputed exclusion infringes the freedom of association guaranteed to the Association’s members by the Charters , the ALT then concluded that the AGQ had not shown that this infringement is justified under s. 1 of the Canadian Charter and the test set out in Oakes , [77] which is also applicable to the justification under s. 9.1 of the Quebec Charter . [78] [ 62 ] Finally, as regards the appropriate remedy, the ALT noted that it was not ruling on the petition for certification, but only on the incidental constitutional issue. [79] It concluded from the principles laid down by the Supreme Court [80] that it could not issue a general declaration of unconstitutionality and suspend the provision’s effects, but could only declare the inoperability of the disputed exclusion for the specific purposes of examining the petition for certification before it. [81] [ 63 ] The ALT further rejected the AGQ’s request to suspend the effects of its decision, citing the following reasons: [ translation ]

[437] In 2004, the petitioning associations [82] obtained a decision from the Committee on Freedom of Association recommending to the government that it amend the Code to remove the exclusion targeting the notion of managerial personnel. Despite repeated calls from international bodies and managerial associations, the government has failed to act. For a number of years, the Supreme Court’s decisions on freedom of association in labour relations have underscored the role of international law and the persuasive force of the Committee’s decisions.

It does not therefore appear appropriate to deprive the petitioning associations instead of their fundamental right to freedom of association. [438] Moreover, if the petitions for certification are granted, the petitioning associations will be able to take advantage of the scheme set out in the Code. As explained above, in so doing, the Tribunal is not granting them access to a particular scheme. Indeed, it is by suspending the effects of its decision that it would be presuming that the petitioning associations are entitled to such a particular scheme.

It is not up to the Tribunal to decide whether other measures could have been chosen for managerial personnel or to assume that the legislature will do so, especially since it did not follow that path after the decision of the Committee on Freedom of Association. [Reference added] 3.

The Judgment Under Appeal [ 64 ] The Superior Court judgment is also very detailed. [ 65 ] The judge, who did not have the benefit of the guidance in Vavilov , [83] concluded, in light of the ruling in Dunsmuir [84] and the jurisprudence of this Court, [85] that the correctness standard of review applies to the constitutional issue decided by the ALT.

She specified, however, that she was required to give deference to the factual findings underlying the ALT’s analysis. [86] [ 66 ] The judge then noted that the analytical framework applicable to the dispute depends on whether one considers the Association’s application as seeking a declaration that the state’s interference is unconstitutional, in which case [ translation ] “only the issue of substantial interference must be decided”, [87] or as an application requiring positive state action, [88] in which case the Baier analytical framework applies. [89] [ 67 ] Rejecting the Association’s arguments to the contrary, the judge held that the Association was seeking positive state action—that is, that the Association and its members be made subject to the Labour Code through the legislative elimination of the exclusion of managerial personnel from the definition of employee in s. 1 (

l) subpara. (1). [90] Consequently, in her opinion the applicable analytical framework must be the one developed by the Supreme Court [91] in Dunmore [92] / Baier . [93] [ 68 ] The judge therefore concluded that the ALT had erred in law by instead choosing the MPAO [94] analytical framework , which, in her view, applies when a party is asserting a negative right. However, she considered that this error was not decisive, because the ALT had also subsidiarily examined the facts according to the criteria set out in Dunmore / Baier . [95] [ 69 ] Applying that analytical framework, she concluded: (

a) that the ALT’s decision was correct in concluding that the appellant was seeking the exercise of its members’ right to a meaningful collective bargaining process—which is an essential component of freedom of association, a freedom that exists independently of the Labour Code [96] — and not [ translation ] “access to a specific legal scheme”; [97] (

b) that the ALT erred, however , in concluding that the purpose of excluding managerial personnel from the definition of “employee” set out in s. 1 (

l) subpara.

(1) L.C. was to deprive them of their right to meaningful collective bargaining of their working conditions, [98] because they can bargain collectively outside the parameters of the L.C. ; (

c) that the ALT also erred in concluding that the disputed exclusion has the effect of preventing the Association’s members from benefitting from the Association’s genuine recognition, [99] because its recognition by the Employer on a voluntary basis does not result in substantial interference with freedom of association; [100] (

d) that the ALT also erred in concluding that the lack of access to a specialized labour relations tribunal in the event of a disagreement over the Memorandum, or for purposes of punishing bad faith bargaining or Employer interference, constitutes substantial interference with freedom of association giving rise to remedies before the ordinary courts of law, including in order to obtain redress under ss. 3 and 49 of the Quebec Charter ; [101] (

e) that the ALT further erred in concluding that the Association’s members do not have the right to strike, since their exclusion from the scheme set out in the L.C. does not prevent them from engaging in a concerted work stoppage in the context of negotiating their working conditions: [ translation ] “There is no law that forbids them from striking”; [102] (

f) that the ALT also erred , or ruled prematurely, in concluding, first, that the Association’s members do not have access to an effective dispute resolution mechanism, given that they have never instituted proceedings before the ordinary courts of law under the Charters to complain about bad faith bargaining or interference by the Employer and, second, that the members have no protection mechanism in the event of a strike, given that they have never exercised that right; [103] (

g) that, nonetheless, the ALT did not err in concluding, based on the history of the parties’ relationship, that certain actions of the Employer [ translation ] “are inconsistent with the notion of meaningful good faith collective bargaining, which is an essential component of freedom of association”, [104] that the changes made to certain material working conditions unilaterally and without prior consultation [ translation ] “undermine the process of meaningful bargaining”, [105] and that these actions constitute [ translation ] “substantial interference with the freedom of association of the OSs”; [106]

(

h) that the ALT, however, erred in asking itself [ translation ] “whether the state is responsible for the refusal to amend the Labour Code , as recommended by the Committee on Freedom of Association,” rather than asking itself whether the state [ translation ] “is responsible for the fact that the OSs cannot […] exercise their freedom of association”; [107] (

i) that, as a result, the ALT erred subsequently in its analysis of the last Baier factor by concluding that the state is [ translation ] “responsible for the violation of the OSs’ freedom of association”, [108] when this violation instead results exclusively from the private actions of the Employer. [109] [ 70 ] Since the judge concluded that the substantial interference with the freedom of association of the Association’s members did not result from the state’s exclusion of [ translation ] “managerial personnel from the application of the Labour Code ”, [110] but solely from what the Employer [ translation ] “does not provide to its OSs”, [111] she refrained from applying the justification test under s. 1 of the Canadian Charter and Oakes , [112] and she granted the Employer’s application for judicial review, set aside the ALT Decision and, at the AGQ’s request, declared that [ translation ] “the exclusion set out in s. 1 (

l) subpara. (1) of the Labour Code is constitutionally applicable, valid, and operative”. [113] 4. The issues in dispute [ 71 ] The Association and the Employer differ on the issues raised by the appeal, submitting three and six issues, respectively, two of which are subsidiary in the Employer’s case. As for the AGQ, he essentially identifies two issues.

Moreover, these issues, or the parties’ arguments about them, overlap. [ 72 ] In the Court’s view, the disposition of the appeal depends essentially on the answers to the following questions: 4.1 Did the Superior Court err in upholding the ALT’s decision that the Association’s notice to the AGQ under art. 95 of the former Code of Civil Procedure [114] was sufficient and admissible with respect to the constitutional argument based on substantial interference with the right to strike? 4.2 Did the Superior Court, sitting in judicial review, correctly identify the applicable standards of review? 4.3 Did the Superior Court properly apply the standards of review in reversing the ALT’s constitutional analysis and the resulting conclusion that the exclusion of managerial personnel from the definition of “employee” set out in s. 1(

l) subpara.

(1) L.C. infringes the freedom of association guaranteed to the OSs? 4.4 If not, did the ALT commit a reviewable error in concluding that this infringement is not justified under s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter ? 4.5 If the infringement is not justified, did the ALT commit a reviewable error in selecting the appropriate remedy by declaring that the disputed exclusion is inoperative as regards the Association and the employees covered by the petition for certification? 5.

Analysis 5.1 Did the Superior Court err in upholding the ALT’s decision that the Association’s notice to the AGQ under art. 95 of the former Code of Civil Procedure was sufficient and admissible with respect to the constitutional argument based on substantial interference with the right to strike? [ 73 ] The Superior Court concluded as follows in paragraphs 46 and 56 to 59 of the Judgment Under Appeal: [ translation ] [46] The AGQ raises the insufficiency of the notice sent by the ACSCQ under art. 76 C.C.P. , just as she raised this argument before the ALT. […] [56] The AGQ argues that the absence of a specific reference to the right to strike prevents her from adducing the necessary evidence before the ALT.

The burden of proving substantial interference with freedom of association, including the right to strike, rests on the ACSCQ, and in her argument the AGQ submits that the ACSCQ did not adduce evidence of substantial interference with the right of the

OSs to strike. The AGQ even points out that the evidence shows that managerial personnel are not seeking the right to strike. [57] The Court therefore finds that the AGQ was not prevented from making her submissions in this regard and notes that she did not ask the ALT for permission to present evidence when this new argument was raised during oral argument.

The AGQ preferred to rely on a procedural argument. [58] The Court is of the view that, in light of these particular facts, accepting the AGQ’s argument would be too strict an approach. [59] Regardless of the applicable standard of review, the Court finds that the ALT did not err in finding that the notice to the AGQ complied with art. 77 C.C.P . [References omitted] [ 74 ] Without raising it as an issue in his brief, the AGQ mentions in paragraph 79 of his submissions that he still maintains that this argument is inadmissible because it was raised too late in the oral argument before the ALT and, therefore, did not meet the requirements of [ translation ] “arts. 76 and 77” of the Code of Civil Procedure.

At the hearing, he did not revisit this ground, with good reason. [ 75 ] Indeed, in view of his interventions before them, and based on the Court’s jurisprudence, [115] the ALT [116] and the Superior Court were justified in rejecting this ground, and there is no need to say more here. 5.2 Did the Superior Court correctly identify the applicable standards of review? [ 76 ] Since Agraira , [117] the role of the Court on an appeal from a judicial review judgment is well known.

Vavilov [118] did not change anything. [ 77 ] The Court must consider whether the reviewing judge chose the correct standard of review and, if so, whether it was applied properly. [119] To this end, “in ‘step[ping] into the shoes’ of the lower court”, the Court’s focus is on the administrative decision, [120] which in the present matter is the ALT Decision. [ 78 ] That said, the judge did not err in concluding that the correctness standard applies to the ALT’s constitutional analysis. [121] Nor did she err in noting that she was nevertheless required to give deference to the factual findings underlying that analysis. [122] Indeed, reviewing courts must refrain from “reweighing and reassessing the evidence considered by the decision maker”, and a non-deferential approach in this regard is possible only in “exceptional circumstances”, [123] such as where the decision maker fundamentally misapprehended or failed to account for the evidence before it. [124] These principles are all the more important because in constitutional matters the findings of fact of the administrative decision maker can be determinative at the appeal stage. [125] [ 79 ] This restraint regarding the factual findings underlying the administrative decision maker’s analysis is of heightened importance in the present case since, as McLachlin, C.J. and LeBel, J. noted for the majority in MPAO , [126] “[a]s with all s. 2 (

d) inquiries, the required analysis is contextual ”. [127] [ 80 ] Having set out these standards and principles, we now turn to the central issue in the appeal. 5.3 Did the Superior Court properly apply the standards of review in reversing the ALT’s constitutional analysis and the resulting conclusion that the exclusion of managerial personnel from the definition of “employee” set out in s. 1(

l) subpara.

(1) L.C. infringes the freedom of association guaranteed to the OSs? [ 81 ] Before answering this question (

part 5.3.6 below), the Court finds it useful to begin with an overview of the legislative history and of some of the comments made during the parliamentary proceedings surrounding the exclusion of managerial personnel from the notion of employee in the L.C. ’s labour relations scheme (

part 5.3.1 ). The purpose of the review is not to interpret the legislative exclusion itself, but to try to better understand [ translation ] “where the story begins”. [128] The text of certain provisions of international agreements of interest will then be considered, followed by the relevant domestic constitutional and quasi-constitutional provisions (

part 5.3.2 ). The Court will continue with an overview of developments in the Supreme Court’s jurisprudence on freedom of association (

part 5.3.3 ), and then move on to consider the correctness of the judge’s conclusions regarding the analytical framework applicable to the case at bar (part 5.3.4 ). The Court will conclude its analysis by identifying certain reviewable errors the judge committed in the exercise of her power of judicial review (

part 5.3.5 ). 5.3.1 The disputed exclusion: legislative history [ 82 ] Paragraphs ( a ), (

b) and ( d ), and subparagraph ( l ) (1) of current s. 1 of the L.C. read as follows:

1 .

In this Code, unless the context requires otherwise, the following expressions mean: (a ) ”association of employees ” : a group of employees constituted as a professional syndicate, union, brotherhood or otherwise, having as its objects the study, safeguarding and development of the economic, social and educational interests of its members and particularly the negotiation and application of collective agreements ; (b ) ” certified association” : the association recognized by decision of the Tribunal as the representative of all or some of the employees of an employer; […] (d ) ” collective agreement ” : an agreement in writing respecting conditions of employment made between one or more certified associations and one or more employers or employers’ associations; […] (l ) ”employee” : a person who works for an employer and for remuneration, but the word does not include : (1) a person who, in the opinion of the Tribunal, is employed as manager, superintendent, foreman or representative of the employer in his relations with his employees ; 1.

Dans le présent code, à moins que le contexte ne s’y oppose, les termes suivants signifient:

a) «association de salariés » : un groupement de salariés constitué en syndicat professionnel, union, fraternité ou autrement et ayant pour buts l’étude, la sauvegarde et le développement des intérêts économiques, sociaux et éducatifs de ses membres et particulièrement la négociation et l’application de conventions collectives ;

b) «association accréditée » : l’association reconnue par décision du Tribunal comme représentant de l’ensemble ou d’un groupe des salariés d’un employeur; […]

d) « convention collective » : une entente écrite relative aux conditions de travail conclue entre une ou plusieurs associations accréditées et un ou plusieurs employeurs ou associations d’employeurs; […]

l) «salarié» : une personne qui travaille pour un employeur moyennant rémunération, cependant ce mot ne comprend pas : 1° une personne qui, au jugement du Tribunal, est employée à

titre de gérant, surintendant, contremaître ou représentant de l’employeur dans ses relations avec ses salariés ; [Emphasis added] [ 83 ] As author Rodrigue Blouin explains, the exclusion of management employees from the notion of “employee” was not introduced in Quebec by the Labour Code that came into force in the mid-1960s, [129] but rather dates back to the Labour Relations Act [130] of the 1940s: [ translation ] From the outset, in order to understand the Labour Code , one must remember that, in essence, it is not the historical context prevailing at the time the Code was adopted that provides a clear picture of the legislature’s intent regarding the organization of collective labour relations, but rather the context prevailing when the Labour Relations Act was adopted .

Indeed, the Code is but a synthesis of the latter Act and the other laws enacted at the same time. It was dominated by the Labour Relations Act as regards the scheme and philosophy underlying the legal structure for collective labour relations . Until the Labour Relations Act was adopted, labour relations had remained most often on a strictly individual level.

The fundamental transposition of these relationships to the collective level originated in the Act and was then taken up by the Code, within and for a liberal economy and based, in particular, on one major, crucial concern: to repress the abuses resulting from the system of individual labour relations, by redressing the unequal balance of bargaining power between the parties, but by moulding that balance according to the administrative reality of companies at that time . [131] [Underlining added; italics in the original; references omitted] [ 84 ] In the Labour Relations Act of 1944, the exclusion of managerial personnel from the notion of employee resulted from s. 2(

a) subpara. (1): 2. In this act and in its application, unless the context requires otherwise, the following words and expressions have the meaning hereinafter given to them: a. “ employee ” means any apprentice, unskilled labourer or workman, skilled workman or journeyman, artisan, clerk or employee, working individually or in a crew or in partnership; but it does not include : 1. persons employed as manager, superintendent, foreman, or representative of an employer in his relations with his employees; […] 2.

Dans la présente loi et son application, à moins que le contexte ne s’y oppose, les termes suivants ont le sens qui leur est donné ci-après : a) “ salarié ” signifie : tout apprenti, manœuvre ou ouvrier non spécialisé, ouvrier qualifié ou compagnon, artisan, commis ou employé qui travaille individuellement, en équipe ou en société; cependant, ce mot ne comprend pas : 1° les personnes employées à

titre de gérant, surintendant, contremaître ou représentant de l’employeur dans ses relations avec ses salariés; […] [Emphasis added] [ 85 ] The Legislative Assembly’s debates during the consideration and adoption of this

section are brief and reveal little, except to confirm that the statute imported the underlying principles of what is known as the 1935 U.S. Wagner Act , [132] named after the senator who introduced it: [ translation ] Mr. Duplessis (Trois-Rivières): Is the current law modelled after the Wagner Act in the United States? The Honourable Mr. Perrier (Terrebonne): Yes , I admit that, for certain portions, the government drew on the U.S. Wagner Act when drafting this law. [133] [Emphasis added] [ 86 ] Indeed, the Wagner Act contains the following

definitions: Sec. 2. When used in this Act — (1) […]

(2) The term “employer” includes any person acting as an agent of an employer, directly or indirectly , but shall not include the United States, or any State or political subdivision thereof, or any person subject to the Railway Labor Act, as amended from time to time, or any labor organization (other than when acting as an employer), or anyone acting in the capacity of officer or agent of such labor organization.

(3) The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse. […] RIGHTS OF EMPLOYEES Sec. 7.

Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. [134] [Emphasis added] [ 87 ] The Wagner Act was amended in 1947 to add the term “supervisor” to paragraph 3 of the

definitions set out in

section 2 and to add paragraph (11): Sec. 2. When used in this Act — […]

(3) The term “employee” shall include any employee, and shall not be limited to the employees of a particular employer, unless the Act explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment, but shall not include any individual employed as an agricultural laborer, or in the domestic service of any family or person at his home, or any individual employed by his parent or spouse, or any individual employed as supervisor , or any individual employed by an employer subject to the Railway Labor Act, as amended from time to time, or any other person who is not an employer as herein defined. […]

(11) The term “supervisor” means any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them, or to adjust their grievances, or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment . […] [135] [Emphasis added] [ 88 ] In the Quebec Labour Code adopted in 1964, the exclusion, whose wording is identical to the one at issue here, is set out in s. 1(

m) subpara. (1): 1. In this code, unless the context requires otherwise, the following expressions mean: […] ( m ) “ employee ” – a person who works for an employer and for remuneration, but the word does not include : (1) a person who, in the opinion of the Board, is employed as a manager, superintendent, foreman or representative of the employer in his relations with his employees ; […] 1. Dans le présent code, à moins que le contexte ne s’y oppose, les termes suivants signifient : […]

m) « salarié » – une personne qui travaille pour un employeur moyennant rémunération, cependant ce mot ne comprend pas : 1° une personne qui, au jugement de la Commission, est employée à

titre de gérant, surintendant, contremaître ou représentant de l’employeur dans ses relations avec ses salariés ; […] [Emphasis added] [ 89 ] The ALT noted the following with respect to subsequent amendments to the Labour Code : [ translation ] [35] In 1969, the Code was amended, and voluntary recognition of associations was abolished. To counter the effect of this abolition on associations already recognized by the City of Montreal and Hydro-Québec, the government adopted an amendment to the Code in

Section 20, as it then existed, maintained certifications for associations that had been voluntarily recognized by their employers. The SPIVM and the SPHIQ, as well as the Association des contremaitres employés par la Ville de Montréal, the latter having only included management employees, were considered certified. [36] During the parliamentary debates surrounding this amendment, the unionization of managerial personnel was addressed more broadly.

The Minister of Labour at the time, Pierre Laporte, stated that he was open to looking into the matter. [References omitted] [ 90 ] The excerpts from the parliamentary debates referred to by the ALT reveal the following: [ translation ] Mr. LAPORTE: [...] The labour code was amended, in 1969, to eliminate all boutique associations .

We used a legal process to say that recognized associations that could theoretically bargain with the employer, but without the employer being required to bargain with them, were eliminated, such that the recognized associations would be those certified by the body designated to do so. When we amended it, we forgot that there were two associations, which were not boutique associations, that had a major presence, namely those of Hydro-Quebec and the City of Montreal, the engineers.

These two associations were eliminated because you have to be an employee within the meaning of the labour code in order to be recognized. Managerial personnel are not employees as defined in the labour code .

So, in 1969, two associations that had already negotiated and obtained collective agreements with the City of Montreal and Hydro were involuntarily eliminated. What we want, this year, is simply to say that the associations of employees of the City of Montreal and Hydro are recognized within the meaning of the labour code, those associations that, in 1968, negotiated collective agreements, so that we don’t send these two groups of employees back to the law of the jungle, which is what prevailed beforehand and which might perhaps suit some people . […] Mr.

BURNS: […] […] I would ask the Minister of Labour to be as bold as his predecessor and, in the very near future, to think of labour legislation for managerial unionism, the relatively new unionism for professionals, those in management . […] I think we will have to rethink this as soon as possible, as of the next session, that is my wish, to widen the definition of employee or to finally give us legislation for managerial unionism . Under the circumstances, Mr.

President, these are the few comments I had, and we will agree with the principle of this bill. […] Our concern in reading this text is that, since there are currently no legislative provisions regarding managerial unionism, and since the certification this House is about to give to these two groups would only be valid until January 1, 1972, one wonders what will happen to these two unions if a law on managerial unionism tailored to the issues of these two engineering unions is not enacted by the date mentioned, that is, January 1, 1972 . […] [ …] Mr.

LAPORTE: […], we currently have, under consideration, certain projects concerning managerial unionism . The member for Maisonneuve, who is both knowledgeable on these matters and reasonable, admits that this is not easy. Mr. BURNS: Are you trying to sell me an idea here? Mr. LAPORTE: I’m not prepping you, not conditioning you. […] Will we have succeeded, within two years, in reaching an agreement, the Council of Ministers, the trade unionists, the employers, on legislation, on managerial unionism? I hope so .

I’m not certain of it because there are considerable pitfalls that go beyond the province of Quebec and may involve Canadian issues and, whether we like it or not, North American issues.

If we have succeeded, by 1972, and this is a challenge I have set myself in the bill, to arrive at a legislative text that can provide order for managerial unionism, no problem, everyone at that time will be covered . […] If, by 1972, we have not succeeded, if I’m alive, God willing, and if the Premier keeps me in the position I now hold, perhaps I will still be Minister of Labour, at that time, let’s say that I personally undertake to ask for the extension of this law which is limited to 1972.

I think the City of Montreal and Hydro-Québec have better things to do than to return to the law of the jungle with their unions that include some managerial civil servants . […] [136] [Emphasis added] [ 91 ] In 1971, the then Minister of Labour followed up on the above-mentioned commitments made by his predecessor: [ translation ] Mr. COURNOYER: […] This bill, which is very short, does not set out anything new. It only gives or maintains a de facto permission recognized at law in a special manner last year.

It maintains it, indefinitely this time, until such time as other general legislation is applicable to managerial personnel or professionals employed not only by Hydro and the City of Montreal, but by other companies or other governmental or para- governmental bodies . I can’t say when this bill will come to be . I have only one bill here, which is the one that extends a de facto recognition already granted by the two entities in question to engineering unions that might include managerial personnel . If you remember, we talked about it at length.

It was an accident, it seems, caused by the new draft of the labour code, which had abolished all recognized unions and ordered a new certification by the investigation commissioner for all unions, including the City of Montreal’s engineering unions and those of Hydro-Québec.

The effect of this bill is therefore, at least for the time being, to allow the negotiations that had previously taken place between the engineers’ union and Hydro-Québec or the engineers’ union and the City of Montreal to be conducted on the same basis as they were before the Labour Code , by striking out certain provisions, destroyed the de facto recognition granted by the two entities in question.

It is simply an extension of last year’s bill, which was adopted by my predecessor precisely for the purpose of allowing the same negotiation of a collective agreement for engineers employed by Hydro and those employed by the City of Montreal. […] THE PRESIDENT: The Honourable Member for Sainte-Marie. Mr. TREMBLAY (Sainte-Marie): […]

This law is being extended, but this does not solve the case of Quebec City’s engineers, for example; this simply settles the case of the engineers of the City of Montreal and of Hydro-Québec. We will of course vote for this bill, but with the hope that the Minister will introduce, in the not too distant future, legislation that would amend the Labour Code to allow all managerial personnel of all associations in the province of Quebec to unionize and negotiate collective agreements . We will therefore vote in favour of this bill.

Thank you. [137] [Emphasis added] [ 92 ] Although the Quebec legislature did not subsequently enact legislation so that all managerial associations would, in the words of Minister Laporte, be [ translation ] “covered” by the L.C. ’s labour relations scheme, as the ALT noted at paragraphs 51 and 52 of its decision, the associations, or unions, of foremen of the City of Montreal and of management engineers in the Syndicat professionnel des ingénieurs d’Hydro-Québec, which had been voluntarily recognized by their respective employers prior to 1969, were recognized by statute.

Other managerial associations have been recognized by order in council. [138] [ 93 ] That said, the Court will return in more detail to the principles laid down by the Supreme Court regarding the scope and purpose of freedom of association.

Suffice it to note that in Saskatchewan , a decision which, as Morissette, J.A. recently pointed out, represented an [ translation ] “express break with prior jurisprudence”, [139] Abella, J. summarized the essential attributes of this freedom as follows: [24] […] Along with their right to associate, speak through a bargaining representative of their choice, and bargain collectively with their employer through that representative, the right of employees to strike is vital to protecting the meaningful process of collective bargaining within s. 2 ( d ) . […] [140] [Emphasis added] 5.3.2 International agreements and domestic constitutional and quasi-constitutional provisions [ 94 ] At the outset, it is relevant to point out t hat Canada is a member of the ILO.

The

preamble to the Constitution of the International Labour Organization [141] states that “recognition of the principle of freedom of association” is among the means for improving labour conditions and establishing peace. [ 95 ] The Freedom of Association and Protection of the Right to Organize Convention, 1948 (No. 87) [142] was ratified by Canada in 1972. Its articles 1, 2 and 11 read as follows: 1. Each Member of the International Labour Organisation for which this Convention is in force undertakes to give effect to the following provisions. 2.

Workers and employers, without distinction whatsoever, shall have the right to establish and, subject only to the rules of the organisation concerned, to join organisations of their own choosing without previous authorisation. […] 11.

Each Member of the International Labour Organisation for which this Convention is in force undertakes to take all necessary and appropriate measures to ensure that workers and employers may exercise freely the right to organise . [Emphasis added] [ 96 ] The Right to Organise and Collective Bargaining Convention, 1949 (No. 98) , [143] which was ratified by Canada in 2017, provides as follows:

Article 2 1. Workers’ and employers’ organisations shall enjoy adequate protection against any acts of interference by each other or each other’s agents or members in their establishment, functioning or administration. 2. In particular, acts which are designed to promote the establishme

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