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11.28.2009

A Win for Wal-Mart, in Canada of All Places

Last week I wrote here about a landmark anti-privatization ruling by the Supreme Court of Israel. But those who thought the days of pro-business, neo-liberal jurisprudence were over, got a sobering reality check reminder last Friday, courtesy of the Supreme Court of Canada. A few years ago, the workers in a Wal-Mart store in the town of Jonquière, Quebec made headlines by voting to make it the first Wal-Mart store to be unionized in North America. The newly established union engaged in several fruitless collective bargaining sessions with Wal-Mart management, after which the Quebec Minister of Labour referred the dispute to arbitration. That very same day (what a co-incidence, one would think) Wal-Mart informed the employees of its decision to close the store. Approximately 190 employees lost their job. With millions of employees worldwide, reports the CBC, Wal-Mart has been fighting unionization in various Canadian courts and labour tribunals in recent years. Citing the cost of rising wages, Wal-Mart closed another outlet in Gatineau, Quebec last fall after workers secured their first union contract.

But apparently, the closure and dismissal of workers in Jonquière was legit, according to the Supreme Court of Canada’s ruling in two companion cases decided on Nov. 27. Store employees argued that the closure was a deliberate step taken by Wal Mart as part of a larger employer strategy of hindrance, intimidation and union busting. Employees filed complaints under the pertinent Quebec labour laws claiming to have lost their employment because of their union activities. They sought an order that they be reinstated in their jobs, an act that would require re-opening of the store. Following a series of decisions by lower courts and labour tribunals the case reached the Supreme Court.

In a 6:3 ruling, the Court held that there is no legislation in Quebec that obliges any employer to remain in business, even if it closes for “socially reprehensible” reasons. Wal Mart had shown the store’s closure to be genuine and permanent and that in itself, according to a long line of precedents, is “good and sufficient reason” within the meaning of the pertinent Quebec legislation to justify the closure and dismissal. In the absence of evidence to the contrary, there is no reason to question Wal-Mart’s position that the closure was genuine and unrelated to the precedent-setting unionization, to the collective bargaining deadlock or to the prospective arbitration. Even though freedom of association is protected by s. 2(d) of the Canadian Charter of Rights and Freedoms and a right to collective bargaining had been recognized in the jurisprudence, neither the Quebec Labour Code nor the Constitution warrants that every situation must be interpreted as reflecting animus toward workers rights. What is more, the majority held that as the store had been closed for a few years and Wal-Mart had no intention of reopening it, reinstatement of the dismissed employees is unrealistic. Thus no referral back to the arbitration board was deemed useful.

The dissenting opinion (written by the often-progressive Justice Abella) held that a dismissal in the case of the closing of a business can be scrutinized for anti union predisposition under the Quebec Labour Code; to suggest otherwise, J Abella wrote, represents a marked and arbitrary departure from the philosophical underpinnings, objectives and general scope of pertinent laws. Also of note is the dissenting vote of J Cromwell, who was appointed to the Court in 2008 by the generally pro-business Conservative Party government.

While the majority reasoning may be sound from an intra-legal standpoint, it appears quite formalistic. The specific circumstances of this case and its symbolic importance surely warranted a more substantive analysis of the power-relations context within which this dispute arose. In that respect, one wonders whether what the now largely out-of-vogue Critical Legal Studies movement had to say about anti-labour biases in constitutional rights jurisprudence has not lost its relevance after all.

RH

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