Editor’s Note: This post was written as a preview of an upcoming Supreme Court of Canada decision for the Fantasy Courts website and newsletter.

Hi, here’s what you need to know about the Supreme Court of Canada this week in 5 minutes.

Latest News

  1. 🎲 The SCC will release its judgment in Société des casinos du Québec inc., et al. v. Association des cadres de la Société des casinos du Québec, et al. on Friday, April 19, 2024. At issue is the constitutionality of legislation that prohibits managerial employees from unionizing.
  2. 🗺️ On April 12, 2024, the SCC released its decision in Shot Both Sides v. Canada, 2024 SCC 12. The Court unanimously allowed the appeal in part and issued a declaration that Canada, having provided the Blood Tribe with a smaller reserve than promised, dishonourably breached Treaty No. 7.
  3. 🔮 92% of players correctly predicted the outcome.

Head over to Fantasy Courts to lock in your predictions for this week’s decision, or read more about the cases below.

Case to Predict: Preventing Managerial Employees from Unionizing

Appeal by leave from Association des cadres de la Société des casinos du Québec c. Société des casinos du Québec, 2022 QCCA 180

SCC factums and webcast

What Happened?

Background: Seventy percent of the operations supervisors assigned to the gaming tables at Casino de Montréal are members of the respondent, the Association des cadres de la Société des casinos du Québec (Association). The supervisors are the fifth level of management and are front-line managers at the appellant employer, Société des casinos du Québec inc. (Société). Since its creation, the Association’s goal has been to secure recognition from the employer so that it can represent the supervisors and negotiate their conditions of employment.

The Association filed a petition for certification with the Administrative Labour Tribunal (ALT). In the petition, the Association asked that the exclusion of managers from the definition of “employee” in s. 1(l)(1) of the Labour Code be declared constitutionally inoperable against the Association and its members on the ground that the provision infringed the freedom of association guaranteed in s. 2(d) of the Canadian Charter and s. 3 of the Quebec Charter. The ALT declared that s. 1(l)(1) infringed the freedom of association guaranteed by the two charters to the persons covered by the Association’s petition for certification and that the section was of no force or effect in the context of the petition.

Lower courts: The Superior Court allowed the application for judicial review filed by the Société. It concluded that the exclusion ensures managerial employees do not find themselves in a conflict of interest, as employers must be able to rely on the undivided loyalty of their managers at all times. The Court of Appeal allowed the Association’s appeal, noting the deference that should be shown to the ALT.

What Was Argued at the SCC?

Appellants: The labour regime in Canada seeks to balance relations between two groups with distinct and sometimes conflicting interests: the employer and its representatives, on the one hand, and the employees, on the other. The Act excludes from its scope personnel who are associated with management, including executives, since they are representatives of the employer. Although the Act restricts accreditation for the excluded groups, it does not prevent those employees from exercising their freedom to associate in other manners. There is a high bar for what constitutes infringing freedom of association, and it’s not met here. Also, the standard of review should be correctness, given it is a constitutional issue being decided.

Respondent: Canadian labour law is not immutable. It has evolved significantly since the 1970s and 80s. There was significant evidence before the ALT of a continued pattern of obstruction of freedom of association, including unilateral modification of working conditions. The Court of Appeal was correct in deferring to the ALT and upholding its decision.

What Else Should You Know Before Making a Prediction?

I’m leaning towards appeal allowed. These decisions have been getting a lot of attention in the labour law world and it seems that many expected that the Superior Court decision would be appealed. It looks like the Court of Appeal righted the ship and I don’t expect the SCC to go against both the ALT and QCCA.

Previous Prediction: Limitation Periods for Breach of Treaty

On April 12, 2024, the SCC released its decision in Shot Both Sides v. Canada, 2024 SCC 12.

Held (7:0): Appeal allowed in part and declaration issued stating that Canada dishonourably breached Treaty No. 7 by providing the Blood Tribe with a smaller reserve than promised,

Key Points:

  • Section 35(1) of the Constitution Act, 1982 did not create a cause of action for breach of treaty rights.
  • Rules on limitation periods apply to Aboriginal right and treaty claims. Treaty claims were enforceable at common law and actionable prior to the coming into force of s. 35(1). The Blood Tribes claim is therefore statute‑barred by operation of the applicable six‑year provincial limitation period.
  • Declaratory relief is available and warranted given the longevity and magnitude of the Crown’s dishonourable conduct towards the Blood Tribe.
  • The constitutional applicability or operability of limitations legislation as it relates to breach of treaty claims was not at issue in this appeal and therefore is left for another day.

Predictions: 92% of players correctly predicted that the appeal would be allowed.

-Tom Slade

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