babble home
rabble.ca - news for the rest of us
today's active topics


Post New Topic  Post A Reply
FAQ | Forum Home
  next oldest topic   next newest topic
» babble   » walking the talk   » labour and consumption   » Québec Court of Appeal rules in favour of Walmart

Email this thread to someone!    
Author Topic: Québec Court of Appeal rules in favour of Walmart
unionist
rabble-rouser
Babbler # 11323

posted 13 March 2008 08:12 PM      Profile for unionist     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Quebec’s well-deserved reputation as having the most progressive labour laws on the continent has taken a hit after a recent Quebec Court of Appeal ruling determined that Wal-Mart Canada Corp. did not transgress the province’s Labour Code when it closed down a store shortly after employees became the first to earn union accreditation in North America.

In a unanimous ruling that overturned a decision by the Quebec Labour Relations Board, a provincial judicial body that oversees labour legislation, the appeal court stated that it is well established that an employer’s decision to close down its enterprise, “even if its motives behind its actions are socially debatable,” constitutes a just and sufficient cause to lay off its employees.


More...


From: Vote QS! | Registered: Dec 2005  |  IP: Logged
triciamarie
rabble-rouser
Babbler # 12970

posted 14 March 2008 01:35 AM      Profile for triciamarie     Send New Private Message      Edit/Delete Post  Reply With Quote 
I would love to see this scenario argued under the Charter.

Slim chance of that, I'm assuming.


From: gwelf | Registered: Jul 2006  |  IP: Logged
RosaL
rabble-rouser
Babbler # 13921

posted 14 March 2008 09:04 AM      Profile for RosaL     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by triciamarie:
I would love to see this scenario argued under the Charter.

Slim chance of that, I'm assuming.


The charter is not intended to undermine the workings of capitalism. Quite the reverse! So I can't see that it would do any good to argue it under the charter. (Unless the framers of the charter slipped up in some way or it is given an interpretation beyond what was intended - which, I suppose, might be possible in some circumstance.)


From: the underclass | Registered: Mar 2007  |  IP: Logged
pookie
rabble-rouser
Babbler # 11357

posted 14 March 2008 09:12 AM      Profile for pookie     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by triciamarie:
I would love to see this scenario argued under the Charter.

Slim chance of that, I'm assuming.


The Charter doesn't apply to Walmart.


From: there's no "there" there | Registered: Dec 2005  |  IP: Logged
josh
rabble-rouser
Babbler # 2938

posted 14 March 2008 09:21 AM      Profile for josh     Send New Private Message      Edit/Delete Post  Reply With Quote 
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
Proaxiom
rabble-rouser
Babbler # 6188

posted 14 March 2008 09:42 AM      Profile for Proaxiom     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by josh:
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.

By the same token, though, how is it possible to positively prove that you are not lying about something? The judgment has to have been right in that respect, though M. Philion appears to have a strong argument that the Court of Appeal erred by not sending it back to a lower court, since the Charter question has not been decided.


From: East of the Sun, West of the Moon | Registered: Jun 2004  |  IP: Logged
josh
rabble-rouser
Babbler # 2938

posted 14 March 2008 10:02 AM      Profile for josh     Send New Private Message      Edit/Delete Post  Reply With Quote 
The announcement of the closing on the heels of the certification should shift the burden to Wal-Mart.
From: the twilight zone between the U.S. and Canada | Registered: Aug 2002  |  IP: Logged
Proaxiom
rabble-rouser
Babbler # 6188

posted 14 March 2008 10:19 AM      Profile for Proaxiom     Send New Private Message      Edit/Delete Post  Reply With Quote 
The burden only shifts once convincing evidence exists toward one conclusion. In this case, the question would be whether the timing of the closing of the store is convincing evidence that Wal-Mart intended to re-open the store later. If the courts think so, then that's fine. Based on the article, though, that's not what they ruled. They ruled instead that the initial onus falls on Wal-Mart to prove that they aren't lying about their intention to keep the store closed.
From: East of the Sun, West of the Moon | Registered: Jun 2004  |  IP: Logged
josh
rabble-rouser
Babbler # 2938

posted 14 March 2008 10:22 AM      Profile for josh     Send New Private Message      Edit/Delete Post  Reply With Quote 
Yes, but my point is that they were wrong because the certification/closing timeline was sufficiently close to shift the burden. You asked what would constitute a rationale for forcing the employer to bear the burden of proof; I believe this is one instance.
From: the twilight zone between the U.S. and Canada | Registered: Aug 2002  |  IP: Logged
unionist
rabble-rouser
Babbler # 11323

posted 14 March 2008 10:39 AM      Profile for unionist     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by pookie:

The Charter doesn't apply to Walmart.


The Québec Charter applies - La Charte des droits et libertés de la personne - but it doesn't help the argument before the court.


From: Vote QS! | Registered: Dec 2005  |  IP: Logged
Proaxiom
rabble-rouser
Babbler # 6188

posted 14 March 2008 10:54 AM      Profile for Proaxiom     Send New Private Message      Edit/Delete Post  Reply With Quote 
I thought that was just a cynical remark. How could the Charter not apply to Wal-Mart?
From: East of the Sun, West of the Moon | Registered: Jun 2004  |  IP: Logged
unionist
rabble-rouser
Babbler # 11323

posted 14 March 2008 11:03 AM      Profile for unionist     Send New Private Message      Edit/Delete Post  Reply With Quote 
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
Proaxiom
rabble-rouser
Babbler # 6188

posted 14 March 2008 11:20 AM      Profile for Proaxiom     Send New Private Message      Edit/Delete Post  Reply With Quote 
Okay, I see. That's reasonable because supposedly we have laws to restrict certain acts by private citizens, and a Constitution to restrict certain acts by government.

My first reaction when I looked at their argument was along those lines, but I also considered that the Charter guarantees freedom from discrimination, which seems to proscribe certain behaviours by private entities such as racist hiring practices.

Or so I thought, but maybe I'm wrong about that.


From: East of the Sun, West of the Moon | Registered: Jun 2004  |  IP: Logged
unionist
rabble-rouser
Babbler # 11323

posted 14 March 2008 11:30 AM      Profile for unionist     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by Proaxiom:
I also considered that the Charter guarantees freedom from discrimination, which seems to proscribe certain behaviours by private entities such as racist hiring practices.

No. Those behaviours by non-governmental employers are proscribed by the Canadian Human Rights Act and its parallel human rights codes in the provinces and territories, depending on what jurisdiction an employer falls under.


From: Vote QS! | Registered: Dec 2005  |  IP: Logged
Proaxiom
rabble-rouser
Babbler # 6188

posted 14 March 2008 11:40 AM      Profile for Proaxiom     Send New Private Message      Edit/Delete Post  Reply With Quote 
Thanks, Unionist.
From: East of the Sun, West of the Moon | Registered: Jun 2004  |  IP: Logged
triciamarie
rabble-rouser
Babbler # 12970

posted 14 March 2008 11:43 AM      Profile for triciamarie     Send New Private Message      Edit/Delete Post  Reply With Quote 
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
unionist
rabble-rouser
Babbler # 11323

posted 14 March 2008 11:43 AM      Profile for unionist     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by Proaxiom:
Thanks, Unionist.

Bienvenue, de nada, bitte sehr, be'vakashah, think nothing of it.


From: Vote QS! | Registered: Dec 2005  |  IP: Logged
unionist
rabble-rouser
Babbler # 11323

posted 14 March 2008 11:45 AM      Profile for unionist     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by triciamarie:
Of course the other fun part about the Charter is the s.33 notwithstanding clause, where a province or Parliament can declare a law exempt. To my knowledge Quebec has applied this for every statute since 1982 as well as all those that came before.

You must be thinking of what they did back then. It expired in 1987 and they let it lapse.

[ 14 March 2008: Message edited by: unionist ]


From: Vote QS! | Registered: Dec 2005  |  IP: Logged
triciamarie
rabble-rouser
Babbler # 12970

posted 14 March 2008 03:14 PM      Profile for triciamarie     Send New Private Message      Edit/Delete Post  Reply With Quote 
Sorry. Nonsense removed.

I'm really bummed out about this decision.


From: gwelf | Registered: Jul 2006  |  IP: Logged
pookie
rabble-rouser
Babbler # 11357

posted 14 March 2008 05:58 PM      Profile for pookie     Send New Private Message      Edit/Delete Post  Reply With Quote 
quote:
Originally posted by unionist:

The Québec Charter applies - La Charte des droits et libertés de la personne - but it doesn't help the argument before the court.



Yeah, I know that, unionist.


From: there's no "there" there | Registered: Dec 2005  |  IP: Logged

All times are Pacific Time  

Post New Topic  Post A Reply Close Topic    Move Topic    Delete Topic next oldest topic   next newest topic
Hop To:

Contact Us | rabble.ca | Policy Statement

Copyright 2001-2008 rabble.ca