(Montreal) The Court of Appeal will consider the application of anti-scab provisions to telework.
The Court of Appeal in fact accepted the request for leave to appeal which had been presented by the Unifor union, affiliated with the FTQ. She will therefore hear the merits of the case.
The dispute concerns the definition of what the employer’s “establishment” is in a teleworking context.
In Quebec, the Labor Code prohibits the use of replacement workers “in the establishment” where the strike or lockout was declared. But how far does the “establishment” of the employer go when an employee works from home?
In November 2021, the administrative labor court ruled in favor of Unifor, ruling that the CRH Group, which operates the Joliette cement plant, where a lockout had been decreed, had contravened anti-scab provisions by using the services of ‘an employee who was teleworking.
The Court then saw teleworking as a “deployed establishment” of the employer, especially since we were then in the middle of the COVID-19 pandemic, where teleworking was widespread.
However, last April, the Superior Court overturned this decision. She ruled that the administrative labor court had exceeded the meaning of the word “establishment”.
Unifor therefore wants to appeal in turn.
Before the Court of Appeal, to obtain permission to appeal, Unifor first argued that the Superior Court had already rendered some contradictory decisions on the subject of teleworking.
Then, Unifor argued that the COVID-19 pandemic has created a new situation, that of teleworking which has become widespread.
“For permission to be granted, the applicant must demonstrate that the appeal raises a question which merits examination by the Court in particular because it is a question of principle, a new question or “a question of law which is the subject of contradictory case law,” wrote the Court of Appeal.
The Court of Appeal itself emphasizes that “authorization to appeal judgments rendered in matters of judicial review is only granted sparingly”.
Ultimately, Unifor argued that the definition of establishment raised serious questions of principle, which went beyond the right to strike.
“Without ruling on the merits of the appeal, I conclude that there is reason to grant the request for leave to appeal, to which the Employer does not object,” concluded Judge Peter Kalichman.