Desbiens v. Wal-Mart Canada Corp.

Binnie J. — This is a companion appeal to Plourde v. Wal-Mart Canada Corp., 2009 SCC 54, [2009] 3 S.C.R. 465. The reasons in that case are released concurrently. Both cases arise out of the closing of the Wal-Mart store at Jonquière, Quebec, on April 29, 2005. The workers at this store had chosen to bargain collectively through their union, which had been certified by the Commission des relations du travail (“CRT”) on August 2, 2004. Thereafter negotiations to conclude a collective agreement were unsuccessful. On February 9, 2005, the Minister of Labour appointed an arbitrator to resolve the outstanding differences. On the same day, Wal-Mart announced closure of the store. On May 17, 2005, the appellants each filed a complaint under s. 16 of the Labour Code, R.S.Q., c. C-27, claiming [translation] “I lost my employment because of the unionization of my establishment.” The appellants sought an order under s. 15 that they be reinstated in their jobs. This could only occur if the store was ordered to be reopened. Section 15 provides that:

15. Where an employer or a person acting for an employer or an employers’ association dismisses, suspends or transfers an employee, practises discrimination or takes reprisals against him or imposes any other sanction upon him because the employee exercises a right arising from this Code, the Commission may

(a) order the employer or a person acting for an employer or an employers’ association to reinstate such employee in his employment, within eight days of the service of the decision, with all his rights and privileges, and to pay him as an indemnity the equivalent of the salary and other benefits of which he was deprived due to dismissal, suspension or transfer.

. . .

(b) order the employer or the person acting for an employer or an employers’ association to cancel the sanction or to cease practising discrimination or taking reprisals against the employee and to pay him as an indemnity the equivalent of the salary and other benefits of which he was deprived due to the sanction, discrimination or reprisals.

Each appellant pleaded the benefit of the presumption in s. 17 that

the sanction was imposed on him or the action was taken against him because he exercised [collective bargaining rights under the Code], and the burden of proof is upon the employer that he resorted to the sanction or action against the employee for good and sufficient reason.

Wal-Mart denied that the closure was a “sanction” or an “action against the employee” and argued that nothing in Quebec law obliged it to keep the Jonquière store open.

The CRT applied a long line of Quebec jurisprudence to the effect that the employer could rebut the s. 17 presumption by showing that the workplace closure was real and definitive. The closure, it held, would constitute “good and sufficient reason” for the loss of jobs, but [translation] “[a]ny indication that it is keeping a door open to resume the same business would preclude a finding of its complete and definitive discontinuance”: City Buick Pontiac (Montréal) Inc. v. Roy, [1981] T.T. 22, at p. 26 (emphasis deleted). In that case, the employer had sold the building and no longer had any interest in it, even indirectly (p. 27).

In this case, unlike Plourde, the CRT was not satisfied that Wal-Mart had definitely closed the Jonquière store: 2005 QCCRT 502, [2005] D.C.R.T.Q. no 502 (QL). There was evidence before it that Wal-Mart possessed a 20-year lease of the building with multiple options to renew, and it was not clear that Wal-Mart had divested itself of any interest in that lease.

Wal-Mart apparently having left the [translation] “door open” to a return to business, the CRT was simply not satisfied that the closure was real and definitive. Accordingly, it was held that Wal-Mart had failed to discharge its onus. The appellants were therefore entitled to benefit from the statutory presumption that Wal-Mart’s decision to dismiss the appellants and other employees was a “sanction” or “action” taken because its employees at Jonquière “exercise[d] a right arising from th[e] Code”, i.e. union-related activity. In the absence of other “good and sufficient reason” for the dismissal, the consequence of an employer’s inability to establish that a purported closure is real and definitive is that an unfair labour practice in breach of s. 15 of the Code is established: Caya v. 1641-9749 Québec Inc., D.T.E. 85T-242, SOQUIJ AZ-85147051 (Lab. Ct.); Bérubé v. Groupe Samson Inc., D.T.E. 85T-932, SOQUIJ AZ-85147126 (Lab. Ct.); Ouellette v. Restaurants Scott Québec Ltée, D.T.E. 88T-546, SOQUIJ AZ-88147062 (Lab. Ct.); Entreprises Bérou inc. v. Arsenault, [1991] T.T. 312.

The finding that Wal-Mart had failed to rebut the s. 17 presumption was a determination well within the range of reasonable outcomes open to the CRT on the evidence: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 54, Canadian Broadcasting Corp. v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157, at para. 42, and Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369, at paras. 33-35. Accordingly, in my view, the Quebec Court of Appeal erred in its reasons for quashing the CRT decision: 2008 QCCA 236, [2008] J.Q. no 673 (QL).

The difficulty we confront, however, is that by reason of this appeal being heard with Plourde we are aware, and nobody now disputes it, that the Jonquière store is in fact permanently closed. In Plourde the CRT heard additional evidence that William Allbright, Director of real estate for Wal-Mart Canada, went to Jonquière shortly before the store closing to evaluate the real estate market and to find suitable alternate tenants for the building. He visited the store, drove around the region to identify potential subtenants, made calls to agents and other contacts in the field, and spoke to different merchants. After concluding that there were no suitable potential subtenants, Wal-Mart terminated the lease. In Plourde the CRT therefore held that Wal-Mart had successfully rebutted the s. 17 presumption by proof of a real and definitive closure.

Faced with different evidentiary records in Desbiens and Plourde it was open to the CRT to come to different factual conclusions. Indeed, not being satisfied of the full and final closure of the Jonquière store, the CRT in this case was right to conclude that the s. 17 presumption operated in favour of the appellant employees against the employer.

However, our Court is confronted at this stage with inconsistent CRT decisions in relation to the same alleged date of closure of the same store on the critical factual issue of whether or not Wal-Mart left the door open to resuming its business in Jonquière. The inconsistent factual findings cannot stand together. None of the parties in this appeal now contends that Wal-Mart retains its option to reopen the store. The basis of a successful s. 15 claim has therefore disappeared.

As a practical matter it would be a waste of the parties’ time and money to remit the Desbiens matter to the CRT to be dealt with on the basis of our decision today in Plourde. The outcome would not be in doubt. The Jonquière store is closed. There is no possibility of reinstatement of the appellants. The substratum of the appellants’ s. 15 claim no longer exists. I would dismiss the appeal but in the circumstances without costs.

The reasons of LeBel, Abella and Cromwell JJ. were delivered by

Abella J. (dissenting) — On May 17, 2005, complaints were filed by employees for remedies under s. 15 of the Labour Code, R.S.Q., c. C-27, alleging that the employer, Wal‑Mart, had dismissed them as a result of their union activity. As in Plourde v. Wal-Mart Canada Corp., 2009 SCC 54, [2009] 3 S.C.R. 465, released concurrently, none of the complaints sought to annul the closing of the store.

In assessing their claim, the Commission des relations du travail found that Wal‑Mart had failed to present evidence proving that the store closing was definitive. Applying City Buick Pontiac (Montréal) Inc. v. Roy, [1981] T.T. 22, the Commission concluded that Wal‑Mart had thus failed to discharge its burden under s. 17 of showing that the dismissals had been for a “good and sufficient reason”. The Commission reserved its determination on the appropriate remedies.

This success is moot, given the determination in the subsequent proceedings in Plourde that the closing did in fact turn out to be definitive. Pursuant to the views I expressed in Plourde that the motives for a dismissal ought to be scrutinized in the case of a closing, whether or not it is genuine, I think the dismissals ought to be re-evaluated to determine whether they were motivated by anti-union animus.

I would therefore allow the appeal with costs throughout and, as in Plourde, refer the complaints to the Commission to be heard on the merits.