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Can Courts Force Businesses to Stay Open?

The Supreme Court of Canada (”SCC”) recently weighed in on an interesting point of law: to what extent can the courts force a business to stay open?

The business in this case was the famous Wal-Mart store located in Jonquiere, Quebec that was the first Wal-Mart to unionize in North America.  Five months after certification, the company decided to shut down its store and terminate the employment of 190 workers on the same day the parties’ first collective agreement dispute was referred to arbitration by Quebec’s labour minister.

The workers complained that the company’s decision amounted to union busting and sought reinstatement under provisions of the Quebec Labour Code (the “Code”).

In two concurrent judgments (Plourde v. Wal-Mart Canada Corp., [2009] S.C.J. No. 54 and Desbiens v. Wal-Mart Canada Corp., [2009] S.C.J. 55), the SCC found in the company’s favour, mainly on a technicality.

The dismissed employees argued that their right to freedom of association in the Charter of Rights and Freedoms (”Charter”) was violated when Wal-Mart decided to close the store.  Under the Code, as with other provincial labour statutes, employers have the onus of proving that their actions were not motivated by anti-union animus (i.e. reverse onus).  In this case, however, since the store no longer existed, the SCC determined that the reverse onus provision of the Code did not apply and consequently, there was no possibility of reinstatement. The workers had other remedies, including financial, if they could prove that the company had engaged in unfair labour practices.

While this case raised several interesting issues relating to the Code and labour relations in Quebec, it did not consider whether Wal-Mart’s decision to close its doors was tainted in any way. Therefore, it will have little impact in the rest of Canada.

Landon Young: [email protected]

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