Supreme Court of Canada rules managers cannot unionize in Quebec

On April 19, 2024, the Supreme Court of Canada handed down the long-awaited decision on the unionization of managers. In Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec,¹ the Supreme Court ruled that excluding an association of first-level managers from the Quebec Labour Code regime was constitutional, and they therefore had no right to unionize. This is a favourable decision for employers, in that a decision to the contrary could have considerably broadened the right to unionize in this country.

Summary of the decision

According to the Supreme Court, the Association des cadres de la Société des casinos du Québec (the Association) did not demonstrate that, when applying the two-part test set out in Dunmore² , the legislative exclusion of first-level managers from the general regime of collective labour relations in Quebec violates the freedom of association guaranteed to its members by the Canadian Charter of Rights and Freedoms (Canadian Charter) and Quebec’s Charter of Human Rights and Freedoms (Quebec Charter). 

The Supreme Court thus overturned the Quebec Court of Appeal's decision that the definition of “employee” in the Labour Code is too restrictive since it excludes all levels of managers. On February 8, 2022, the Court of Appeal had reinstated the Administrative Labour Tribunal’s decision (ALT) that excluding managers from the Labour Code regime interfered with their freedom of association. At the same time, the Court of Appeal suspended, for 12 months, the ALT's declaration of inoperability concerning the legislative exclusion of managers.³

Writing for the majority of the Supreme Court, Justice Jamal held that there is only one analytical framework for assessing whether a law or government action infringes freedom of association under the Canadian Charter: the two-step framework established in Dunmore, which asks:

• whether the activities of the workers in question fall within the scope of the freedom of association guarantee;
• whether government action interferes with the protected activities in purpose or effect.

In this case, Justice Jamal answers the first part of the test in the affirmative. By an application for certification, the Association, was seeking to have its members be subject to the collective labour relations regime provided by the Labour Code concerning activities protected by freedom of association. These activities include the right to form an association that is sufficiently independent of the employer, to make collective representations to the employer, and to have those representations considered in good faith.

However, in his analysis of the second part, Justice Jamal concluded that excluding managers from the Labour Code regime did not have the purpose or effect of substantially interfering with the freedom of association of the Association's members. 

The court reiterated that the right to meaningful collective bargaining does not guarantee access to a particular model of labour relations. Rather, the freedom of association set out in the Canadian Charter guarantees a process of collective bargaining.

Justice Rowe points out that a fundamental freedom does not always oblige the state to facilitate its exercise. A positive obligation for the state to protect a freedom should only arise where the claimant would otherwise be incapable of exercising the freedom. That is why a higher burden forces the claimants to demonstrate why, in their circumstances, a posture of restraint from the state is not enough. 

The Supreme Court found that, despite this legislative exclusion, the Association’s members had managed to associate and that alternative recourses to the protections provided in the Labour Code existed, demonstrating they were not unable to exercise their freedom of association or bargain collectively with their employer. In short, this exclusion does not interfere with the associative rights of managers. On the contrary, it should be remembered that:

[...] the legislature’s purposes in excluding managers from the definition of “employee” under the Labour Code were to distinguish between management and operations in organizational hierarchies; to avoid placing managers in a situation of conflict of interest between their role as employees in collective bargaining and their role as representatives of the employer in their employment responsibilities; and to give employers confidence that managers would represent their interests, while protecting the distinctive common interests of employees [...].⁴

Takeaways

With this decision, the Supreme Court recognizes and underscores that the labour relations regime set out in the Labour Code is based on the very distinction between employees and managers, and that this is a fundamental principle to be protected. 

This ruling should be very favourably received by Quebec employers.

Ultimately, as the Supreme Court rightly points out, the legislative exclusion of managers from the labour relations regime set out in the Labour Code makes it possible to avoid role conflicts between employer and employees in the context of their professional responsibilities (for example, in the context of collective bargaining of employees' working conditions). This exclusion ensures managers adequately represent the employer's interests, and thus preserves the employer's confidence in its representatives.