Labour Law

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It’s been a tough year. A virus is killing people left and right, and Quebec is under curfew from 8 pm to 5 am every day in an attempt to curb its spread. Leaders have had to make tough choices, and that includes Côte-des-Neiges— Notre-Dame-de-Grâce borough mayor Sue Montgomery.

In addition to running the borough through the pandemic, Montgomery has been dealing with issues with Montreal Mayor Valérie Plante that culminated in Montgomery’s expulsion from Plante’s party, Projet Montréal and her victory is Superior Court against the City of Montreal in December 2020. I had an opportunity to speak to Montgomery by phone about the pandemic and her recent legal victory.

We spoke just after Quebec had announced the curfew. When asked about the new rules, Montgomery pointed out that no one has ever been through a pandemic like this before. She spoke of how adherence to the new measures speaks to a broader sense of civic responsibility among the citizens of the borough.

“I understand the frustration with people…We’re all tired, we’d like get back to work, but the bottom line is that everyone has to do their bit,” she said, repeating the public health guidelines of hand-washing, mask wearing, and social distancing. “The sooner we all start doing that, the sooner we can get back to normal.”

As to what role the borough has in the implementation of public health guidelines, Montgomery points out that the province sets the rules and municipal governments are there to play a supportive role. The borough’s activities include supporting community organizations that help the less fortunate and vulnerable, mentioning the unemployed, elderly, and disabled. She noted that since the start of the pandemic, the demand at food banks has skyrocketed.

Montgomery mentioned that the unusual circumstances created by the pandemic have brought to light certain issues, such as the need for affordable housing to combat homelessness, and places for people to be able to relieve themselves with dignity, as safety measures have made it impossible for people to avail themselves of toilets in restaurants and cafes. The latter is not only a disability issue, but also a sanitation issue.

Regarding her recent Superior Court victory, Montgomery’s feelings are mixed: she’s thrilled at her win and she’s saddened by the fact they had to go through it.

For those of you who don’t know what led to Montgomery’s expulsion from Projet Montréal, here’s a quick summary:

Sue Montgomery was elected Borough Mayor of CDN-NDG in November 2017 as a member of Valérie Plante’s Projet Montréal. When she took office, she brought with her Annalisa Harris, her chief of staff.

Harris and the Borough Director, Stephane Plante (no relation to the mayor) clashed, with the latter claiming psychological harassment by the former. The City of Montreal ordered a report that they claimed confirmed psychological harassment by Harris of the Borough Director and Mayor Plante demanded that Montgomery fire her.

Montgomery refused, requesting to see the report first. The City of Montreal refused to provide it, and Montgomery refused to fire Harris without proof of misconduct.

In response, Plante kicked Montgomery out of her party. After numerous attempts to settle the dispute amicably, it ended up in court.

The Superior Court, presided over by Judge Bernard Synnott, ruled in Montgomery’s favor, confirming the claims of psychological harassment by Harris were bogus, but also affirming elected officials’ authority over bureaucrats like the Borough Director, and allowing her access to the aforementioned report.

The City of Montreal had until January 11, 2021 to appeal the decision, but there’s no news of them filing an appeal.

Despite every road block, Montgomery is positive about all she’s been able to accomplish. As for Plante’s role in the events leading up to the legal decision, Montgomery has some choice words:

“Had Valérie Plante done her job from the get-go and read this report about so-called harassment, we wouldn’t be in this situation. Because of this court procedure, I have now been able to get the report and there is nothing in there that could even be remotely considered psychological harassment. There’s been a lot of effort, a lot of money, a lot of drafts throughout this last year because Valérie Plante didn’t do her job… Valérie should have supported me the way I supported Annalisa. She preferred to not take a stand.”

Montgomery says she stood by Annalisa Harris because it was the right thing to do, and rightfully points out that to fire her without evidence would have been illegal under Quebec labor law. She feels she handled it as best she could. Montgomery gave Annalisa Harris a choice as to whether to fight the accusations or not because the borough mayor would not fire her, speaking highly of her chief of staff’s abilities.

Montgomery knows that the issues leading up to her victory in court will still need to be addressed but she is prepared to offer an olive branch to the City of Montreal and Mayor Plante. With the municipal elections in November 2021, Montgomery confirmed that she is running again and is creating a new party, though the name of it is still in the works.

Featured Image: Sue Montgomery running for CDN-NDG Borough Mayor in 2017 (photo by Samantha Gold)

LawNews

On May 24, 2017 Quebec construction workers walked off the job after failing to sign a collective agreement with their employers. Though the provincial government threatened pass Bill 142 which would force them back to work the following Monday if they failed to do so, the Couillard government chose to table said bill and construction workers remain on strike.

Labour disputes are as Québecois as poutine and tire sur glace. No matter the time of year, some group from public prosecutors to hotel workers to teachers to nurses is always on strike because in Quebec we have an expression:

“Au Québec, on syndique!”

In Quebec, we unionize.

Though for many people labour disputes are nothing more than a public nuisance characterised by service delays and screaming picketers, unions play a vital role in protecting thirty to forty percent of workers in Quebec.

Historically, it was the unions that fought for living wages, reasonable working hours, and safer working conditions. Unions were at the forefront of Quebec’s Quiet Revolution that fought government corruption and the oppressive hold of the Catholic Church on the province.

Today unions and the laws that protect them keep big business from trampling all over their employees and no case says that better than the Supreme Court of Canada’s decision in 2014 in United Food and Commercial Workers, Local 503 v. Wal Mart Canada Corp..

We’ve all heard stories like this before.

Wal-Mart opens a store, treats its workers like garbage, and when they exercise their legal right to form an association to protect themselves the company fires the lot of them by closing the store. Wal-Mart always claims that it’s because the store in question wasn’t profitable and had nothing to do with the unionization of its employees. Normally companies like Wal-Mart get away with this sort of thing, but not in Quebec.

In Quebec we have the Labour Code, which establishes strict rules of what employers and employees can and cannot do when it comes to unions and collective bargaining. Though the Code provides rules on unions of employees and associations of employers, this article will focus on the unions.

The Labour Code defines a union or association of employees as a:

“a group of employees constituted as a professional syndicate, union, brotherhood or otherwise, having as its objects the study, safeguarding and development of the economic, social and educational interests of its members and particularly the negotiation and application of collective agreements”

Associations of employees can engage in bargaining with their employer(s) to establish a collective agreement, which is a written contract between them establishing the conditions of employment. These agreements are generally drafted, negotiated and signed when the union is formed, and when they’re up for renewal. That said, the Code has a series of obligations and rights for employers and employees.

Employees in Quebec have the right to belong to an association of their choice and can participate in said association’s formation, activities, and management. Employers and their representatives are not allowed to threaten or intimidate someone with the intent to scare them out of joining or participating in such an association. At the same time, associations of employees are not allowed to use those tactics to get a worker to join them.

Unions are not allowed to solicit membership during working hours, and they’re not allowed to hold meetings at the place of work unless they are certified by the Labour Tribunal and have their employer’s consent.

Employers are not allowed to “dominate, hinder or finance the formation or the activities” of the unions, a provision undoubtedly put in place due to Quebec’s long tradition of corruption. They are not allowed to refuse to hire someone for exercising their rights as per the Labour Code, and they’re not allowed to engage in threats, intimidation, discrimination, reprisals or dismissals for exercising those rights.

If an employer engages in these illegal behaviors, employees can file a complaint with Quebec’s Administrative Labour Tribunal within thirty days of the sanction or action. If the Administrative Labour Tribunal agrees that an employee tried to exercise their right under the Labour Code, any action taken against said employee by their employer is presumed to have been the result of attempting to exercise said right.

It’s then up to the employer to prove those actions were for a “good and sufficient” reason. If the Tribunal doesn’t buy the employer’s explanation, it can in turn order the reinstatement of the employee within eight days of the tribunal’s decision, and even order that the employer pay the employee an indemnity equivalent to the salary and benefits lost due to reprisals against them.

The Code establishes rules of how unions can decide to go on strike, voting procedures within the union, and the certification process in which the union applies for recognition by the Administrative Labour Tribunal to act as representative for the workers of a given employer. It describes who counts as a union member and procedures for negotiating a collective agreement.

What Wal-Mart was caught for is a violation of article 59 of the Labour Code that bars employers from changing the conditions of employment during the unionization process. The union successfully argued before the Supreme Court that closing the store was a prohibited change in employment conditions. The Court ordered Wal-Mart to compensate its former employees.

If all negotiations for a collective agreement fail, either the union or the employer or both can apply to government to force arbitration. Arbitration is somewhere on the legal spectrum between mediation and a trial. Like in mediation, both parties submit their dispute to a third with the goal of finding a decent solution for both parties, but like a trial the decision is binding. This typically happens in cases of serious impasse.

Though strikes in Quebec can be a public nuisance, labour laws and unions not only protect Quebec workers but also allowed us to spank Wal-Mart.

* Featured image: lifeinquebec.com