Association des cadres de la Société des casinos du Québec – Supreme Court of Canada decision

The Association des cadres de la Société des casinos du Québec (the “Association”) represents first-level managers working at the Société des casinos du Québec inc. (the “Société”). The Association applied to the Commission des relations du travail (now the Administrative Labour Tribunal (“ALT”)) for certification to represent the first line managers in their employment. As part of their application, the Association sought a ruling that the statutory exclusion of managers in the Quebec Labour Code unjustifiably infringed its members’ freedom of association under s. 2(d) of the Charter and s. 3 of the Quebec Charter.

The prior lower court and tribunal decisions upheld the statutory exclusion of managers. The Association’s appeal to the Supreme Court of Canada (SCC) was heard by seven SCC Justices. Justice Jamal drafted the reasons for the four-justice majority decision. Justice Côté provided concurring reasons for herself and Chief Justice Wagner. Justice Rowe provided separate concurring reasons. All of the Justices agreed that the exclusion did not violate the Charter. The Justices disagreed on the proper analytical framework used in section 2(d) challenges.

Proper Legal Framework for Section 2(d) Challenges

According to the majority, for all cases alleging legislation or government action infringes s. 2(d) of the Charter, there is a two-part test:

  1. Such activities must fall within the range of activities protected by s 2(d) of the Charter;
  2. The impugned legislation or government action must, either in purpose or effect, substantially interfere with these activities.

Part 1: The Association’s Claim Involved Activities Protected Under section 2(d)

The SCC held that the Association’s claim involved activities protected under section 2(d). Specifically, the Association’s claim implicated the right to form an association with sufficient independence from the employer, to make collective representations to the employer, and to have those representations considered in good faith.

Part 2: The Managerial Exclusion Did Not Substantially Interfere With Protected Activities

The SCC concluded that the managerial exclusion did not substantially interfere with the members of the Association’s section 2(d) activities, in purpose or effect.

The purpose of the exclusion did not interfere with the managers’ associational rights. Instead, the purpose of the exclusion is to avoid placing mangers in a conflict of interest and to give employers confidence that managers will represent their interests.

The Association also failed to show that the exclusion had the effect of substantially interfering with its members’ rights to meaningful collective bargaining. The Court emphasized the different ways in which members of the Association, despite the managerial exclusion, were able to exercise their freedom of association. Specifically, the Montreal Division of the Association was voluntarily recognized by the Société. The Société and the Montreal division of the Association concluded a memorandum of understanding which provided for a framework of collaboration and consultation on working conditions and related issues. The Société also agreed to collect union dues on behalf of the Association.

While the Société had neglected to properly respect the memorandum of understanding at times, the SCC emphasized that the Association could seek remedies in court for any substantial interference with its members’ right to meaningful collective bargaining, including their right to strike. In this case, there was no evidence on the record that these remedies were inadequate. Therefore, the SCC could not conclude that a lack of access to specialized dispute resolution mechanisms or legislative protection of the right to strike caused a substantial interference with the members’ freedom of association.

Potential Impact on IATSE

The IATSE’s film and live performance bargaining units often include many first level managers. Despite this fact, the prospects of the SCC’s decision having any significant impact on IATSE outside of Quebec is low.

The SCC’s decision affirms that the managerial exclusion of first level managers contemplated in the Quebec Code is constitutionally permissible. By extension, it could be said that the SCC’s decision arguably lends some support for the managerial exclusions contemplated in provincial labour legislation outside of Quebec as well. However, the SCC’s decision did not conclude that all first level managers across Canada should be excluded from the protections that may be set out in provincial labour legislation in other provinces. In the circumstances, the SCC’s decision does not alter the status quo across Canada that managers are generally excluded from the protections contemplated in provincial labour relations statutes or the tests provincial labour boards have in place to determine who is and who is not a manager for labour relations purposes. Those determinations will still be fact driven like they always have. To date, no provincial government has suggested it will be undertaking a review of the managerial exclusion language in its labour relations legislation nor has any provincial labour board issued any decisions revisiting the longstanding tests used to determine who is and who is not a manager.

To read the full decision, please click here.

English (Canada)