Author:
Canada | Publication | December 18, 2024
As 2024 draws to a close, it's that time of the year when we take stock of the cases that have left their mark on Quebec labour law. From unexpected twists and turns to welcome clarifications, our administrative tribunals and courts have definitely been busy! Get ready to discover some of the highlights of a year rich in case law. The countdown has begun!
After being the subject of jurisprudential controversy in 2023,1, the anti-strike breaking provisions provided in the Labour Code were in the news again this year. In February 2024, the Administrative Labour Tribunal (ALT) determined that an employer could not use technicians from other branches or an independent contractor to perform the work of on-the-road technicians on strike.2 In a context where the striking technicians generally worked outside the establishment identified in the certificate of accreditation, the ALT determined that the notion of “establishment” extended to all places where the technicians usually performed their tasks, i.e. at customers' premises, on worksites, etc.
The Superior Court overturned this decision on judicial review3 and the union appealed.4 This will therefore be a case to watch in 2025.
Meanwhile, in another case, the ALT ruled that the establishment identified in the certificate of accreditation could not be extended to worksites where striking road signallers were working.5 Therefore, the employer did not contravene the Labour Code by using replacement workers on these sites during the labour dispute.
Also in February 2024, the Court of Appeal confirmed that parental status or the fact of being a parent was not a ground of discrimination within the meaning of the Quebec Charter of Human Rights and Freedoms (Quebec Charter)6. The Court had already answered this question in the same way in 2010, but contradictory case law seemed to have developed within the Human Rights Tribunal. This new decision should put an end to this jurisprudential controversy, which does not respect the teachings of the Court of Appeal. You can read our analysis of this decision here (in French).
Unlike the Quebec Charter, the Canadian Human Rights Act, which applies to federal undertakings, expressly includes “family status” as a prohibited ground of discrimination.
On March 27, 2024, the National Assembly of Québec passed Bill 42, i.e. An Act to prevent and fight psychological harassment and sexual violence in the workplace. This Act introduced amendments to numerous labour laws, including the Act respecting industrial accidents and occupational diseases (AIAOD), the Labour Code, the Act respecting labour standards (ALS) and the Act respecting occupational health and safety (AOHS ). Among the most significant changes are new requirements for the content of psychological harassment prevention policies, a provision limiting the application of amnesty clauses in cases of violence in the workplace, and new presumptions regarding work-related accidents. Most of these provisions came into force on March 27 or September 27, 2024. For more information on this topic, consult our April, June and October 2024 publications.
In April 2024, the Supreme Court of Canada rendered a highly anticipated ruling on the right to unionize. The country's highest court has ruled that the exclusion of first-level managers from the Labour Code is constitutional, in that it does not substantially hinder their freedom of association.7 In its ruling, the Court emphasized the importance of the legislator's objective of distinguishing between salaried employees and managers in the Quebec labour relations system, regarding this as a fundamental principle to be protected. This distinction makes it possible to avoid conflicts of roles between employers and employees, particularly during collective bargaining, and ensures that managers faithfully represent the employer's interests. You can read our analysis here.
In another groundbreaking decision, the ALT ruled that a union bargaining unit could include both employees working in Quebec on an in-person basis and employees working remotely from other Canadian provinces.8 According to the tribunal, the Labour Code, Quebec law, applied to employees from other provinces, since their work was “delivered” in Quebec. You can read our analysis here (in French).
When it comes to dismissal for incompetence, the criteria are well known: (1) the employee must have been informed of the expectations placed on them; (2) the employer must have made their shortcomings known; (3) the employee must have received support in achieving their objectives; (4) the employer must have given the employee a reasonable period of time in which to improve; and (5) the employee must have been informed of the risk of dismissal. However, last October, the Court of Appeal upheld an employee's dismissal for incompetence, despite the fact that the fifth criterion had not been met, due to the particular context of this case.9 In its ruling, the Court mentions that the applicable criteria must be analyzed in a “global and contextual” manner. While it remains prudent to respect all the applicable criteria, this decision gives Quebec employers a certain amount of leeway.
The second half of 2024 was marked by labour disputes in federal undertakings. On two occasions, the federal Minister of Labour intervened by ordering the Canada Industrial Relations Board (CIRB) to impose binding final arbitration on the bargaining parties and to end work stoppages. Rather than enacting special back-to-work legislation, the Minister used the ministerial directions issued under section 107 of the Canada Labour Code to order the CIRB to “take the necessary measures” to “promote good labour relations.” These ministerial interventions were contested by the unions, but the CIRB declared itself without jurisdiction to invalidate them. Instead, it will be up to the Federal Court to rule. We discuss these ministerial interventions in our November 2024 publication.
As of January 1, 2025, amendments to the Act respecting labour standards will come into force, limiting the ability of employers under provincial jurisdiction to request a medical certificate from their employees to justify certain absences, notably absences due to illness and absences to fulfill family obligations. For more information, you can consult our publication on this topic.
Provincial undertakings should also keep an eye on the coming into force of legislative amendments introduced by the Act to modernize the occupational health and safety regime, which will add obligations for employers in terms of prevention mechanisms. As a result of these amendments, all establishments with 20 or more employees will be required to adopt a prevention program identifying, among other things, the risks associated with the workplace, and to set up a health and safety committee. Establishments with fewer than 20 employees will be required to draw up an action plan and appoint a health and safety liaison officer. These amendments will come into force on an unspecified date, but no later than October 6, 2025.
Finally, as of June 20, 2025, federally regulated workplaces will no longer be able, with certain exceptions, to use replacement workers to perform the work of employees on strike or locked out. We discussed these amendments to the Canada Labour Code in our publications of November 2023 and June 2024.
Publication
On 24 October 2024, the Court of Justice of the European Union (CJEU) confirmed that the European Commission’s (the EC) 2009 decision, which imposed a (then record) €1.06 billion fine on Intel, was flawed as far as it found that loyalty rebates granted by Intel had anti-competitive effects.
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