Supreme Court upholds WalMart on narrow grounds

The Supreme Court in a much awaited ruling (Plourde v Wal-Mart Canada Corp.) upheld the closure of the Wal-Mart Jonquiere store on narrow procedural grounds. While the narrowness of the grounds will not help the workers who lost their jobs after unionizing the first Wal-Mart store in North America, the ruling does not sanction the closure of places of business in order to escape a certification.
The case turned on the narrow question of whether the reverse onus provisions of the Quebec Labour Code applied in the case of a closure of a business. The majority of the Court relied on a nearly 30-year old case from Quebec, City Buick, to hold that a permanent closure was "a good and sufficient" reason to lay off the workers and was therefore not subject to the reverse onus provisions.

Under s. 12, a union or employees may claim anti-union conduct on the part of the employer. Such a proceeding would focus directly on the reason for the closure of the store not on the reason for the dismissal of employees at a store that no longer exists. Under s. 12 the motive of Wal-Mart to close the Jonquière store would be highly relevant. If the [Labour Board] were satisfied that the closure occurred for anti-union reasons, the [Labour Board] could, if the matter were properly before it, fashion a remedy of benefit to all the former employees.

The reverse onus provisions level the evidentiary playing field by forcing the Employer to demonstrate that its decision to close the business was not tainted by anti-union animus. In this case the Employer announced the closure on the same day that the Minister of Labour appointed an arbitrator to adjudicate a first contract.

The minoity opinion, authored by former Ontario Labour Relations Board Chair Abella, took issue with the Court's upholding of the decision in City Buick:

With great respect, it is my view that the conclusion in City Buick that a dismissal resulting from a genuine closing can never be scrutinized for anti‑union motives, is a rebuke to the prior jurisprudence, to the history of the legislation, and to the purpose of the legislative scheme

The decision means that in Quebec an employer's motivation is relevant in every situation except closure of a business. Do you think this is what the legislature had in mind? Or, does Quebec need to amend its laws to eliminate this absurdity?

In effect, the Court told the Union that it pled the wrong section (there is another section of the Code which does not provide for reverse onus). It did not find that there was no animus. Had the Union pled the other section of the Code and been able to prove animus, there still could have been a remedy.

This raises another set of questions. How can the trade union "prove" animus? There are unlikely to be trade union witnesses in the board room when the key decisions are being made. Isn't that way legislators brought in reverse onus provisions in the first place?
What do you think?