The Supreme Court rules on the right of association

On April 19, 2024 the Supreme Court of Canada rendered the decision Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec, 2024 SCC 13 which deals with the freedom of association protected by section 2(d) of the Canadian Charter and section 3 of the Québec Charter. This decision identifies the legal framework applicable to any claim based on freedom of association, whether the claim at issue is a so-called positive or negative claim. In applying this framework, the Supreme Court determined in this matter that the freedom of association of the Association des cadres de la Société des casinos du Québec (the “Association”) and its members was not compromised by the employer, the Société des casinos du Québec inc. (the “Corporation”). The Court thus allowed the appeals before it.

Context

The Association was constituted in 1997 under the Professional Syndicates Act¹and represents managers of the first of five levels. The Association is recognized voluntarily by the Corporation, the parties having concluded a Memorandum of Understanding (the “MOU”) establishing a collaborative and consultative framework on the working conditions of the Association's members and related matters.

The Labour Code (the “Code”) excludes the representatives of the employer (hereinafter referred to as “managers”) from the definition of “employee”,² and thus the Association and its members do not have access to, among other things, the protections and dispute resolution mechanisms provided for by the Code.

At the origin of this case is the Association's filing, in 2009, of an application under section 25 of the Code to be accredited by the Corporation to represent the supervisors of operations of the Casino de Montréal who are responsible for supervising the croupiers and ensuring the smooth running of gaming activities and customer service. These supervisors are considered first-level managers. The Corporation contested the application, pointing out that the members of the Association are not covered by the Code.

At first instance, the Administrative Labour Tribunal (the “ALT”) concluded that the Association was claiming negative rights and that, applying the legal framework under the Mounted Police decision,³ exclusion of the managers from the definition of “employee” in the Code unjustifiably violated the Association's members' freedom of association.⁴

On judicial review, the Superior Court determined that the ALT had not adequately identified the applicable legal framework given that the Association was claiming positive rights. According to the Superior Court, the three-factor test of the Dunmore decision⁵ applied but the Court was of the view that this error was not determinative, as the ALT had nevertheless considered the three factors in assessing the evidence. In any event the Superior Court concluded that the ALT had misapplied the analytical criteria of the Dunmore case to the facts of the file. In its view, the ALT could not conclude that there had been an infringement of freedom of association and it therefore quashed the ALT’s decision.⁶

On appeal from the Superior Court’s decision, the Court of Appeal reinstated the TAT's decision. The Court of Appeal was of the view that, since the Toronto (City) decision⁷, it is uncertain whether the distinction between claiming positive rights and claiming negative rights has an impact on the analytical framework to use for determining whether or not there was a violation of section 2(d) of the Canadian Charter. In any event, whether or not there should be a distinction between these types of claims, the Court of Appeal determined that the two-part test in Mounted Police⁸ should apply in this instance, and its analysis convinced it that in this case there was a violation of the freedom of association of the members of the Association.

The Supreme Court’s decision

The legal framework applicable to any claim under s. 2(d) of the Canadian Charter

The majority of the Supreme Court held that the legal framework applicable to an alleged violation of section 2(d) of the Canadian Charter, regardless of the nature of the rights claimed, is the following two-part test originally derived from Dunmore and subsequently refined:⁹

• Do the activities in question fall within the scope of the guarantee of freedom of association?
• Does the purpose or effect of the government action or inaction in question substantially interfere with protected activities?

It should be noted that justices Wagner, Côté and Rowe, in concurring reasons, are rather of the view that the legal framework applicable to the analysis of an alleged violation of section 2(d) of the Canadian Charter varies according to the type of right claimed, i.e., whether it is positive or negative.

The legislative exclusion of managers from the Labour Code does not substantially interfere with the activities of the Association's members protected by section 2(d) of the Canadian Charter

The Supreme Court concluded that the exclusion of managers from the definition of “employee” in the Code does not in itself violate section 2(d) of the Canadian Charter. This exclusion has the valid and reasonable objectives of distinguishing 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 their distinctive common interests which are distinct from those of employees.

With respect to the particular case of the Association and its members, the Court held that they had not demonstrated a violation of section 2(d) of the Canadian Charter. In this regard, the Supreme Court considered the following factors:

• The Corporation voluntarily recognizes the Association as the representative of operations supervisors;
• The Corporation and the Association have entered into an MOU, the terms of which demonstrate that the members of the Association are able to associate and bargain collectively with their employer;
• As a Crown corporation, the Corporation is bound by the Canadian Charter and the Québec Charter;
• The right to meaningful collective bargaining does not guarantee access to a particular model of labour relations;
• The Association can seek remedies in court for any substantial interference with its members’ right to meaningful collective bargaining, including their right to strike, even without an enabling legislative framework. In this regard, the Association has not demonstrated how these options are inadequate;
• The Association did not show that the Corporation’s failure to respect the MOU or negotiate in good faith with the Association flows from the legislative exclusion.

On these grounds, among others, the Supreme Court allowed the appeals, set aside the judgment of the Court of Appeal, quashed the decision of the TAT, and declared that section 1(l)1 of the Code applied to the Association's application for certification. Thus, managers who are members of the Association cannot claim the right to be certified under the Québec Labour Code.

Conclusion

This judgment puts an end to the questions surrounding the legal framework to be applied to a claim based on section 2(d) of the Canadian Charter. Moreover, it is clear from the Supreme Court's conclusions that this legal framework must also apply to any claim made under section 3 of the Québec Charter.

The Court reaffirms the balance established by the Labour Code regarding the importance and role of managers in a work organization and is in itself reassuring for employers. The Honourable Justice Côté reminds us that the exclusion of the representatives of the employer from the Labour Code was intended in particular to allow employers to have confidence in their representatives and to avoid conflicts of interest and role. Moreover, the judgment confirms that the legislative exclusion of managers in the Code is not, in itself, a violation of the constitutional freedom of association. However, this judgment does not, in our view, rule out the possibility for an association of managers to demonstrate that, in the particular circumstances of its day-to-day reality, this legislative exclusion actually infringes the freedom of association of its members, or that a special bargaining regime, established outside the framework of the Labour Code, must be put in place to ensure compliance with the rights of its members.

The authors are grateful to law student Nathan Richard for his invaluable contribution to this article.

¹ CQLR, c. s -40
² Para. 1(l)(1)
³ Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1
⁴ Association des cadres de la Société des casinos du Québec et Société des casinos du Québec inc., 2016 QCTAT 6870
⁵ Dunmore v. Ontario (Attorney General), 2001 SCC 94
⁶ Société des casinos du Québec inc. c. Tribunal administratif du travail, 2018 QCCS 4781
⁷ Toronto (City) v. Ontario (Attorney General), 2021 SCC 34
⁸ Supra, note 3
⁹ See the decisions Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, and Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3.