On April 19, the Supreme Court of Canada (SCC) rendered judgment in the case of Cadres des casinos du Québec. At the end of a long legal saga, which began in 2009 with the filing of a request for accreditation by the Association of Managers before the Administrative Labor Tribunal (TAT), therefore after nearly fifteen years of legal debates, the CSC finally decided to reject the appeal initiated by the executives concerned.
Remember that the question of unionization of executives has been the subject of controversy for a long time in Quebec. In fact, even if the responsibilities assumed as representatives of the employer are minimal (as is the case for first-level managers such as the table managers of the casinos at the origin of the dispute), all management personnel in Quebec is excluded from unionization as a result of article 1l) 1o of the Labor Code since 1944 (Labour Relations Act).
A denial of justice? Certainly, considering the determination of the government of Quebec and the Société des casinos to deny any access of these subordinate executives to a real collective bargaining process. Let us recall here some facts illustrating this relentlessness.
1997. Birth of the Association of Casino Managers, with a view to obtaining the right to collective bargaining with the employer, who categorically refuses to recognize this right.
September 2001. A memorandum of understanding is entered into between the Association and the Société des casinos, which however only provides for a right of consultation before any modification of working conditions. Subsequently, several changes are made by the employer on this subject, without the association being consulted or even informed in advance.
November 2004. The Freedom of Association Committee (CLS) of the International Labor Organization (ILO), receiving complaints from associations of public sector managers in Quebec, concludes that the exclusion of managers from the general regime of the Labor Code contravenes Canada’s international commitments regarding freedom of association: this recommendation remains unanswered.
November 2009. Noticing the failure of most of its efforts, the association (which had 250 members at that time) filed a request for accreditation before the TAT, raising the unconstitutional nature of the exclusion of executives from the definition of “employee” of the Labor Code.
On the legal side, the journey was checkered for casino executives. Complete victory before the TAT in 2016 (very detailed decision by judge Irène Zaïkoff), however overturned by the Superior Court, in a decision which appeared to us to be highly questionable. This was followed by a new victory for casino executives, in 2022, before the Quebec Court of Appeal. We could hope that this unanimous judgment of the Court of Appeal would definitively put an end to the dispute, and finally authorize access to collective bargaining for some 200,000 managers (approximation) of the public and private sectors in Quebec.
However, against all expectations – because the CSC rejects, without providing the slightest reason for its refusals, almost all of the appeal requests relating to fundamental freedoms of work – the Supreme Court granted permission to appeal this judgment.
The CSC’s judgment appears to us to rest, in many respects, on weak legal foundations, which we cannot discuss in detail here. Let us, however, highlight two aspects which call for firm criticism.
The exclusion of international labor law. International law is a very important source of Quebec labor law, particularly with regard to the standards developed within the framework of the ILO. It is the taking into account, in particular, of ILO Conventions No. 87 and No. 98 (ratified by Canada with the agreement of Quebec) and the interpretations of these by the CLS, which led the CSC to recognize the constitutional right to collective bargaining in 2007 and to strike in 2015.
Surprisingly, in the case of casino executives, either international standards are completely ignored (J. Jamal), or dismissed out of hand (J. Côté), with the CLS seeing itself devalued as a “political” body. and not legal. Such an exclusion from international law can only have a negative effect on the exercise of union freedoms in Quebec.
Lack of understanding of the role of the State in labor law. For all the judges of the CSC, although much energy is devoted to abstract, cryptic and formalist distinctions between “negative” and “positive” obligations of the State, it is only in “exceptional circumstances » that state intervention can be demonstrated to be necessary with regard to constitutional freedom of association. This would be the case for casino executives requesting one form or another of a state framework protecting their associative activity. Everything is not very clear here: why can executives be excluded from the common system of collective labor relations, without this constituting, in the judgment of the CSC, a “substantial obstacle” to the freedom of association, while the conclusion was the opposite in the case of agricultural workers (Dunmore decision, 1999) and RCMP officers (APMO decision, 2015)?
What is certain is that the CSC clearly misunderstands the importance of the role of the State in the regulation of collective labor relations. In particular, in most industrialized countries, it was only thanks to legislation governing collective bargaining that employees were able to compensate for the inherent weakness resulting from their legal subordination based on the individual contract of work. In North America, it was only following the adoption of Wagner Act (United States: 1935; model received throughout Canada in 1944) that employee associations could establish themselves, among others, in large companies.
For the ILO, excessive delay in the administration of justice amounts to justice denied. The case of casino executives unfortunately seems to us to illustrate such a situation. Certainly, the CSC now recognizes executives’ constitutional right to collective bargaining and the right to strike (Société des casinos du Québec judgment, 2024, para. 55), which we should be happy about: however, the employees concerned will have to borrow, in all probability, the random, and very slow, paths of recourse to the common law courts, again without real assurances as to the final result.
In fact, we may fear that the decision of the Supreme Court of Canada in Société des casinos du Québec, in a manifest detachment from the relevant social and legislative facts, sends management unionism back to an era that was believed to be definitively gone, that of individualist and liberal laissez-faire, moreover in flagrant violation of Canada’s international commitments in terms of fundamental rights at work.