Supreme Court rules Quebec casino managers can’t certify as a union

Given the opportunity to revisit the separation between employees and managers that has been the bedrock of North American labour law since the American Wagner Act of 1935, the Supreme Court of Canada did not leave an opening for first-level casino managers to unionize under Quebec’s Labour Code, but did provide clarity as to the how to apply the standard of correctness in administrative law decisions.

In a unanimous decision last week, the Supreme Court ruled that front-line managers in four Quebec casinos, who organized as the Association des cadres de la Société des Casinos du Québec, are not able to certify as a union, but that their Charter rights to associate are not otherwise impacted. How the two-part Dunmore test applies is where the court differed. The majority wrote that the framework established in its 2001 Dunmore decision applies in all cases, where both positive and negative rights are engaged, while two separate concurring decisions wrote that it should only apply in the case of positive rights.

The case involved a legal clash between the Association des cadres de la Société des Casinos du Québec and the Société des Casinos du Québec. At issue generally was whether first-level casino managers can unionize — specifically, whether the section of Quebec’s Labour Code that excludes all management personnel from the legal definition of “employee” should be considered null and void with respect to first-level casino managers.

Quebec’s Administrative Labour Tribunal had initially ruled that the Labour Code unconstitutionally infringed on the association’s freedom of association. This was overturned by the Superior Court, which said the tribunal had not established an infringement. The Quebec Court of Appeal restored the tribunal’s decision, disagreeing with the test the Superior Court applied. The Supreme Court granted the appeal and overturned the Court of Appeal decision, restoring the Superior Court’s ruling.

“In my view, the purpose of the legislative exclusion is not to interfere with managers’ associational rights,” Justice Mahmud Jamal wrote for the majority. He drew upon Justice Suzanne Côté’s language in her concurring decision about the Quebec Labour Code distinguishing between managers 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.”

Justice Jamal also noted that the lack of certification didn’t prevent the association from organizing or coming up with a memorandum of understanding around bargaining with the employer. Nor did the inability to access the specialized dispute resolution mechanism or legislative protection of the right to strike cause any substantial harm to members’ freedom to associate.

“The right to meaningful collective bargaining does not guarantee access to a particular model of labour relations,” he wrote.

Christopher Deehy, a partner at Lapointe Rosenstein Marchand Melançon LLP in Montreal, says the court didn’t explore how the lower courts got the test wrong in this decision.

“Here they’re trying to attack the exclusion of managers, and the casino didn’t really live up to its undertakings,” Deehy says. “That’s why they sought to be certified. They concluded that they had no alternative, and what the Court has said here is that it’s not the result of the exclusion from the Labour Code, it’s because of the behaviour of the casino, so the test is not met.”

Paul Daly, a law professor at the University of Ottawa, says there was also a question of how much deference an expert decision-maker gets when they are applying the context-sensitive provisions of the Charter to particular fact situations.

“The question, when there is a limitation of freedom of association, is whether there is a significant interference with the associational rights of a particular group of individuals,” Daly says. “You would think that the expert tribunal is in a good position to evaluate whether the interference is significant on the facts of a particular case.”

He notes that the Court of Appeal accepted the argument that even though excluding these casino managers from the collective bargaining process was a Charter question about the application of freedom of association, there was a case for applying a deferential standard of review.

For its part, the Supreme Court hasn’t said clearly whether there was any role for deference when considering factual findings that are relevant to answering a question of compliance with the Charter. But in this case, the court did ask the question and found that any application of constitutional principles to facts, this is the correctness standard, Daly says.

“The decision-maker has to get it right, so on their so-called pure findings of fact, which I take to mean the findings about what happened to who, when, and how, they are entitled to deference, so a court has to accept those facts as given unless there is some egregious error on the decision-makers part,” he says.

“But after that, taking those facts as a given, determining if there is a breach of the constitution, is a matter to be determined correctly by the courts. The courts will give a final and definitive answer. That has been implicit in some of the Supreme Court’s recent cases.”

Daly also notes that the decision does turn on whether someone seeking Charter protections does so as a positive right or a negative right, which was a point of divergence between the majority and the concurring decisions. The majority felt that the test applies whether one is seeking either a positive or negative right, whereas the concurring decisions felt this only applies in a positive right scenario.

“I’m not sure how much distance there really was between the majority and the concurrence, but they seemed to feel there was a difference,” Daly says.

“Certainly, the majority was not in favour of a general distinction between positive rights and negative rights, said quite clearly that in freedom of association cases, there’s a particular test for that, and in freedom of expression tests, there is a specific test for that, and there is no general positive versus negative framework that you apply.”

To that end, the majority is saying that each right in the Charter is distinct and has its own distinct tests and standards, and there is no general framework that should influence how courts decide cases.

Deehy says that the question of why first-level managers can’t unionize when they have very limited power is a fascinating question that has been around for years, and notes that there have been a few exceptions made under Quebec’s Labour Code for a few to exist.

“I thought there was some interesting stuff in the [Court of Appeal] judgment which went back to the Wagner Act and said that the exclusion of managers isn’t as air-tight as everyone thinks it is, but that didn’t get explored,” Deehy says.

“The issue is still an open one.”