Author
|
Topic: Québec Court of Appeal rules in favour of Walmart
|
|
|
|
|
josh
rabble-rouser
Babbler # 2938
|
posted 14 March 2008 09:21 AM
quote: Philion is currently examining the possibility of requesting leave to the Supreme Court of Canada. He argues that the case also deals with an issue that the Court of Appeal did not examine, namely the right to freedom of association – an argument he plead before the board. “The board, given that it came to the conclusion that the company did not prove that the closing of its store was definitive, felt it did not have to render judgment over the Charter of Rights argument,” said Philion. “It was therefore something that was not debated before Quebec Superior Court. It is our contention that since the Court of Appeal granted the motion for judicial review, the case should have been sent back to the board so that it can rule over the Charter of Rights argument.”
Apparently, from the article, the case turned on the question of who had the burden of proof to show subterfuge, not that Wal-Mart's action was not subterfuge. Given the likely difficulty of coming up with a "smoking gun" on that question, the distinction may be one without a difference.
From: the twilight zone between the U.S. and Canada | Registered: Aug 2002
| IP: Logged
|
|
|
|
|
|
|
|
unionist
rabble-rouser
Babbler # 11323
|
posted 14 March 2008 11:03 AM
quote: Originally posted by Proaxiom: I thought that was just a cynical remark. How could the Charter not apply to Wal-Mart?
Because the Charter (not the Québec one) only applies to government or quasi-governmental institutions - not to employers in general. It's about constitutional freedoms and equality before the law. For example, you can't invoke "freedom of speech" when you get fired for telling your boss, in front of the whole staff, that you hate her guts. The courts can't punish you for that (that's your Charter protection), but that's as far as that particular freedom goes. The Québec Charte, which is not a constitutional document but rather a statute of the National Assembly, has more general application. [ 14 March 2008: Message edited by: unionist ]
From: Vote QS! | Registered: Dec 2005
| IP: Logged
|
|
|
|
|
triciamarie
rabble-rouser
Babbler # 12970
|
posted 14 March 2008 11:43 AM
OK, so as I understand, the lower court didn't even look at the Charter argument because they said it was moot once they allowed the case on the merits (a favourite tactic for avoiding dealing with Charter issues I have noticed). So when the court of appeal overturned the decision on the merits, Philion is saying that the Charter issue was no longer moot, so the case should have been sent back to be heard.The fun part about the Charter -- the one in the 1982 Canadian constitution -- is the Oakes test. Was a Charter right infringed, and if so, is the infringement justifiable in a free and democratic society? Is the countervailing concern real, is it urgent? Is the means of achieving the objective fair and rational? If not -- down goes the statute. This does screw with the onus of proof because at a certain point the burden is on showing that the infringement is justifiable. Secondly, the whole arena of discussion changes to rights and society (more rights than society, but that's another problem). Not sure about le charte ou comment ca s'peut appliquer. [ 14 March 2008: Message edited by: triciamarie ]
From: gwelf | Registered: Jul 2006
| IP: Logged
|
|
|
|
|
|