Supreme Court of Canada **SUPREME COURT OF CANADA** Appeals Heard: April 20, 2023

Judgment Rendered: April 19, 2024 Docket: 40123 --- ## Parties Between: Société des casinos du Québec inc. Appellant v. Association des cadres de la Société des casinos du Québec Respondent — and — Attorney General of Canada, Attorney General of Ontario, Attorney General of Quebec, Attorney General of Alberta, Administrative Labour Tribunal, Canadian Association of Counsel to Employers, National Police Commissioned Officers Professional Association, Canadian Labour Congress, Ontario Principals' Council, Catholic Principals' Council of Ontario, Association des directions et des directions adjointes des écoles franco-ontariennes, Directors Guild of Canada – Ontario, Canadian Lawyers for International Human Rights, Public Service Alliance of Canada, Canadian Civil Liberties Association, Syndicat professionnel des ingénieurs d'Hydro-Québec inc., Association des cadres des collèges du Québec, Association des cadres municipaux de Montréal, Association des conseillers en gestion des ressources humaines du gouvernement du Québec, Association des cadres scolaires du Grand Montréal, Association des cadres supérieurs de la santé et des services sociaux, Association des directeurs et directrices de succursale de la Société des alcools du Québec, Association professionnelle des cadres de premier niveau d'Hydro-Québec, Association québécoise des cadres scolaires, Association québécoise du personnel de direction des écoles and Fédération québécoise des directions d'établissement d'enseignement Interveners ‑ and ‑ Attorney General of Quebec Appellant v. Association des cadres de la Société des casinos du Québec Respondent — and — Attorney General of Canada, Attorney General of Ontario, Attorney General of Alberta, Administrative Labour Tribunal, Société des casinos du Québec inc., Canadian Association of Counsel to Employers, National Police Commissioned Officers Professional Association, Canadian Labour Congress, Ontario Principals' Council, Catholic Principals' Council of Ontario, Association des directions et des directions adjointes des écoles franco-ontariennes, Directors Guild of Canada – Ontario, Canadian Lawyers for International Human Rights, Public Service Alliance of Canada, Canadian Civil Liberties Association, Syndicat professionnel des ingénieurs d'Hydro-Québec inc., Association des cadres des collèges du Québec, Association des cadres municipaux de Montréal, Association des conseillers en gestion des ressources humaines du gouvernement du Québec, Association des cadres scolaires du Grand Montréal, Association des cadres supérieurs de la santé et des services sociaux, Association des directeurs et directrices de succursale de la Société des alcools du Québec, Association professionnelle des cadres de premier niveau d'Hydro-Québec, Association québécoise des cadres scolaires, Association québécoise du personnel de direction des écoles and Fédération québécoise des directions d'établissement d'enseignement

Interveners --- Indexed as: Société des casinos du Québec inc. v. Association des cadres de la Société des casinos du Québec 2024 SCC 13 File No.: 40123. 2023: April 20; 2024: April 19. Present: Wagner C.J. and Karakatsanis, Côté, Rowe, Kasirer, Jamal and O'Bonsawin JJ. on appeal from the court of appeal for quebec --- ## Headnote Constitutional law — Charter of Rights — Freedom of association — Statutory exclusion — Casino managers excluded from provincial statutory labour relations regime — Whether exclusion infringes managers' guarantee of freedom of association — Canadian Charter of Rights and Freedoms, s. 2(d) — Charter of human rights and freedoms, CQLR, c. C‑12, s. 3 — Labour Code, CQLR, c. C‑27, s. 1(l)(1). Administrative law — Judicial review — Standard of review — Standard of review applicable to findings of fact and findings of mixed fact and law made by administrative decision maker in connection with constitutional question. The Association des cadres de la Société des casinos du Québec ("Association") represents certain first‑level managers working at four casinos run by the Société des casinos du Québec inc. ("Société"). The Association applied to the Commission des relations du travail (now the Administrative Labour Tribunal ("ALT")) to be recognized as a certified association representing first‑level managers in the gaming sector at the Casino de Montréal in order to benefit from the protections of the Quebec Labour Code. Because s. 1(l)(1) of the Labour Code excludes managers from its statutory labour relations regime, including from the ability to obtain association certification, the Association sought a ruling that this statutory exclusion unjustifiably infringed its members' freedom of association under s. 2(d) of the Charter and s. 3 of the Quebec Charter. The Association succeeded at first instance before the ALT. The ALT characterized the Association's claim as a negative rights claim and applied the two‑part substantial interference test for analyzing an alleged infringement of freedom of association articulated in Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3. It concluded that the exclusion of managers unjustifiably infringed their freedom of association. On judicial review, the Superior Court quashed the ALT's decision. In the Superior Court's view, the Association sought to impose a positive obligation on the state, which must be analyzed under the framework in Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016. The court ruled that the Association did not establish an infringement of its members' freedom of association. On further appeal by the Association, the Court of Appeal followed Mounted Police and applied the two‑part substantial interference test as the proper framework under s. 2(d), and restored the ALT's decision. Held: The appeals should be allowed. Per Karakatsanis, Kasirer, Jamal and O'Bonsawin JJ.: Section 1(l)(1) of the Labour Code applies to the Association in its application for accreditation. The Association has not shown that, when the two‑part substantial interference test, established in Dunmore and refined in Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, and Mounted Police, is applied, the legislative exclusion of first‑level managers from Quebec's general collective labour relations regime infringes its members' freedom of association under s. 2(d) of the Charter or s. 3 of the Quebec Charter. There is only one framework for determining whether legislation or government action infringes s. 2(d) of the Charter. That two‑step framework was established by the Court in Dunmore and examines, first, whether activities fall within the scope of the freedom of association guarantee, and second, whether the government action interferes with the protected activities in purpose or effect. Three factors circumscribing the possibility of successfully challenging underinclusive legislation under s. 2(d) of the Charter were also set out in Dunmore. They relate to whether the claim of underinclusion is grounded in a fundamental Charter freedom, rather than access to a particular statutory regime; the evidentiary threshold for showing an interference with such a fundamental freedom; and whether the state can be held accountable for the claimant's inability to exercise the fundamental freedom. These three factors are relevant considerations when evaluating s. 2(d) claims, but they do not constitute a separate test or a distinct framework for evaluating constitutional challenges to underinclusive legislation under s. 2(d). There is also only one threshold for evaluating all s. 2(d) claims — the threshold of substantial interference. A claimant alleging that underinclusive legislation infringes s. 2(d) need not meet an elevated threshold. In Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, a s. 2(b) freedom of expression case, a majority of the Court refrained from deciding whether Dunmore continues to apply to s. 2(d) claims after the Court's decisions in Mounted Police and Fraser. The Court's s. 2(d) jurisprudence reveals that the Court has consistently applied a two‑part framework that examines whether activities fall within the scope of s. 2(d) and whether government action has substantially interfered with those activities, in purpose or effect. The Court has also highlighted that its s. 2(d) jurisprudence since Dunmore should be viewed as a consistent body of case law. Dunmore was not overturned by the Court's decisions in Mounted Police or Fraser. Nor does the Court's jurisprudence create two tests, one for claims seeking positive intervention from the state and another for claims seeking negative protection against state interference. Although the Dunmore factors have not been identified and analyzed each time the Court has been asked to determine whether legislation or government action infringed s. 2(d) of the Charter, the underlying principles have been consistently reaffirmed. It is not always necessary to consider each Dunmore factor expressly. Sometimes, the state's responsibility in causing the substantial interference is self‑evident. The frameworks under ss. 2(b) and 2(d) of the Charter have evolved differently in the Court's jurisprudence. In the context of claims under s. 2(b) of the Charter, the threshold for proving positive freedom claims is substantial interference with freedom of expression. However, the threshold for negative rights claims involving freedom of expression is whether the purpose or effect of the government action merely restricts freedom of expression. In the freedom of association context, by contrast, the elevated threshold of substantial interference in the second Dunmore factor already applies to all claims involving both positive and negative duties. This helps explain why the distinction between positive freedoms and negative rights is not relevant in determining the applicable framework for s. 2(d) claims, even though it has been affirmed in the s. 2(b) context. In applying the two-part substantial interference test to the Association's claim, the standard of correctness applies to the questions of law and mixed fact and law at issue. At the first step of the s. 2(d) framework, the Court must determine whether the activities that the members of the Association seek to engage in fall within the scope of s. 2(d) of the Charter, and therefore consider whether the Association can plausibly ground its action in a fundamental Charter freedom. The Association's claim does involve activities protected under s. 2(d) of the Charter, including the right to form an association with sufficient independence from the employer, to make collective representations to the employer, and to have those representations considered in good faith. At the second step of the s. 2(d) framework, the Court must determine whether the legislative exclusion, in purpose or effect, substantially interferes with the protected s. 2(d) activities of the Association's members. In addressing this issue, the Court must consider whether the state is responsible for the members' inability to exercise their fundamental freedoms under s. 2(d). In the instant case, the purpose of the legislative exclusion is not to interfere with managers' associational rights. The legislature's purposes in excluding managers from the definition of "employee" under the Labour Code were to distinguish between management and operations in organizational hierarchies; to avoid placing managers in a situation of conflict of interest between their role as employees in collective bargaining and their role as representatives of the employer in their employment responsibilities; and to give employers confidence that managers would represent their interests, while protecting the distinctive common interests of employees. The Association has also failed to show, on the record before the Court, that the effect of the legislative exclusion is to substantially interfere with its members' rights to meaningful collective bargaining. Per Wagner C.J. and Côté J.: The Dunmore framework remains applicable to constitutional challenges to the exclusion of workers from a labour relations regime. While in each case substantial interference is the applicable standard for finding an infringement of freedom of association and is at the heart of the analysis, the framework for analyzing freedom of association varies depending on whether the party is asking the state to refrain from interfering with a protected activity or is instead seeking state action to remedy its inability to engage in that activity without support or enablement. The three‑step Dunmore framework is better suited to the context of a positive claim and to the type of remedy sought in such cases. In this case, the application of the framework leads to the conclusion that the impugned legislative exclusion does not limit the freedom of association guaranteed by the Canadian and Quebec charters. Section 1(l)(1) of the Labour Code is therefore operable against the Association in the context of its petition for certification. An overview of the Court's jurisprudence reveals that freedom of association under s. 2(d) of the Charter and s. 3 of the Quebec Charter protects against any substantial interference with the right of employees to meaningfully associate with others in the pursuit of collective goals relating to conditions of employment. This protection encompasses the right of employees to a meaningful process of collective bargaining, a process that includes the right to make collective representations to their employer and to have those representations considered in good faith, freedom of choice with respect to their representation, the independence of their association from their employer, and the right to strike. However, the Court has emphasized since Dunmore that s. 2(d) guarantees a process, not an outcome or access to a particular model of labour relations. Freedom of association is indeed non‑statutory, but the manner of its exercise may be spelled out in legislation. The three‑step Dunmore framework applies in determining the circumstances in which positive state action may be required under s. 2(d) of the Charter, such that the legislature will be obliged to enact a particular labour relations regime. First, claims made against the exclusion must be grounded in an activity protected by s. 2(d) itself and not in access to a particular statutory regime. Second, the exclusion must have the purpose or effect of substantially interfering with that activity. Third, it must be possible for the state to be held accountable for the substantial interference. When these three steps are satisfied, it must be concluded that the legislature's failure to provide a particular regime constitutes an infringement of s. 2(d) of the Charter. Although the Court suggested in obiter in Toronto (City) that the applicability of the Dunmore framework was now uncertain in light of Mounted Police and Fraser, those decisions must not be read as overturning this framework sub silentio. The Court's jurisprudence has relied on Dunmore to develop the substantial interference framework, without ever reversing the higher threshold to be met for positive rights claims. The Dunmore approach therefore remains applicable to challenges relating to exclusion from a statutory regime. The three‑step Dunmore framework should not be set aside, because this framework better addresses positive claims and reflects the exceptional nature of the remedy sought. Distinguishing between the various steps of the framework, rather than incorporating them into the substantial interference standard, is preferable in several respects. Such an approach involves conceptual clarity based on the structure and language of the Charter and provides clear direction regarding the burden of proof to be met at each step. The first step excludes the possibility of seeking access to a particular regime, given the distinction between s. 2(d) and s. 15; the second step requires that substantial interference be shown, as in any constitutional challenge under s. 2(d); and the third step, based on s. 32 of the Charter, takes into account the specific nature of the claim by requiring a causal link between the substantial interference and the legislative exclusion. This approach serves to maintain substantial interference as a single standard while necessitating legislative action only in exceptional circumstances, and it is therefore consistent with the separation of powers. Distinguishing between the three steps of the framework also avoids the risk that a constitutional challenge under s. 2(d) to a legislative exclusion will be transformed into a balancing of various factors or considerations, which would amount to overturning the Dunmore framework sub silentio. Under the three‑step framework, it is quite possible that a group of employees excluded from a statutory labour relations regime will be able to demonstrate substantial interference with the exercise of freedom of association but will be unable to establish a causal link with the state's failure to legislate. In this case, no deference is owed to the ALT's findings of law and findings of mixed fact and law, but only to its findings of pure fact. In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, the Court established a presumption that the standard of reasonableness applies to the judicial review of an administrative decision maker's decision. However, this presumption can be rebutted when the rule of law requires a consistent, determinate and final answer from the courts, which is the case with constitutional questions. The standard of correctness therefore applies to the findings of law made by the ALT in the context of analyzing the constitutional question before it. The standard of correctness also applies to findings of mixed fact and law made in connection with a constitutional question, because it is important that constitutional questions be answered correctly. As for findings of pure fact that can be isolated from the constitutional analysis, a reviewing court must show deference to them. Such deference is based on considerations related to judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker. The rule of law does not require that there be a determinate and final answer to questions of pure fact, as they will vary from case to case. To determine whether an infringement of s. 2(d) of the Charter and s. 3 of the Quebec Charter has been established, it is important to characterize the nature of the Association's claim, because the nature of the claim may affect the framework that applies. The content of several Charter freedoms has both positive and negative dimensions. A right's positive dimensions require government to act in certain ways, whereas its negative dimensions require government to refrain from acting in other ways. The characterization exercise is concerned with the nature of the obligation that the claim seeks to impose upon the state. In this case, the Association's claim seeks the recognition and enforcement of a positive state obligation, since any claim that seeks to eliminate the exclusion of a class of workers from the application of a general collective relations regime is essentially a claim for inclusion in a particular regime. The three‑step Dunmore framework must therefore be applied to determine whether, in light of this framework, the exclusion of the Association's members from the Labour Code regime infringes s. 2(d) of the Charter and s. 3 of the Quebec Charter. The application of the first step of the Dunmore framework to the facts of this case shows that the Association and its members are seeking access to a particular statutory regime, that is, the regime provided for in the Labour Code. The Association's choice to proceed by way of a petition for certification shows that its ultimate goal is for its members to be subject to the collective labour relations regime in the Labour Code, especially since the ALT, which can neither make a formal declaration of unconstitutionality nor suspend the effects of its decision, would have no choice but to give the Association's members access to all of the rights and privileges flowing from the Labour Code if it granted the Association's claim. This conclusion is sufficient to allow the appeals. However, even if this step of the Dunmore framework were satisfied, the Association's claim would fail at the second and third steps of the framework. With regard to the second step, the exclusion in s. 1(l)(1) of the Labour Code does not have the purpose or effect of substantially interfering with the freedom of association of the Association's members. Firstly, the Association has not shown that such a purpose existed in 1964 when the Labour Code was enacted. The record does not show that there was distrust of any association of first‑level managers, and there is no basis for concluding that the Quebec legislature considered the role of manager to be fundamentally incompatible with the collective bargaining protected by freedom of association. Secondly, not every difference between the situation of the Association's members and the situation they would be in if they were not excluded from the Labour Code regime constitutes substantial interference. It must be recognized that they have been able to associate. While certain aspects of the Société's conduct, in the absence of the protections conferred by the Labour Code's provisions, do seem to interfere substantially with the freedom of association of the Association's members, the existence of alternative recourses is another important consideration in concluding that they are not unable to exercise their freedom of association. Furthermore, the Association is not without recourse in the event that the Société interferes with the conduct of its activities. Finally, even on the assumption that the Société's impugned conduct constitutes substantial interference with the exercise of the freedom of association of the Association's members, this interference is not attributable to the state at the third step of the Dunmore framework. Establishing a link is crucial, as what is being challenged when the Dunmore framework is applied is the state's legislative action, not the employer's action alone. The analysis must be based on the factual context of the case. In this case, there is no link between the legislative exclusion being challenged and the Société's impugned conduct, which is due to its alleged failure to comply with its contractual undertakings and which can be sanctioned by the ordinary courts. Per Rowe J.: The Dunmore framework should remain applicable to assess positive claims. While s. 2(d) can require positive actions from the state in order to make the freedom to organize meaningful, claims of this nature must be analyzed under a distinct framework that takes into account the nature of this fundamental freedom, the necessary link to state action, and the separation of powers. Under the purposive approach articulated in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, a freedom has both positive and negative dimensions. However, the distinction between these dimensions remains important when considering the nature of the obligation that the claim seeks to impose upon the state. A freedom, by nature, does not encompass the obligation for the state to facilitate its exercise. This is why a higher burden forces the claimants to demonstrate why, in their circumstances, a posture of restraint from the state is not enough. In effect, any positive obligation requiring the state to protect the freedom should arise only where the claimant would otherwise be substantially incapable of exercising the freedom. The Court has consistently described s. 2(d) as reflecting a right that is largely "negative" in nature. Thus, in most circumstances, it does not impose "positive" obligations of protection or assistance on the state. It is only in exceptional circumstances, identified under a distinct framework set out in Dunmore that s. 2(d) of the Charter can impose positive obligations on the state. The infringement giving rise to a negative claim under s. 2(d) is fundamentally different than the infringement leading to a positive claim. Given this difference, the standard to analyze positive claims should not be the same as for negative claims. The Dunmore framework was specifically designed to take into account the absence of direct state action giving rise to the infringement in the case of positive claims, where the state has only failed to adequately protect the freedom from infringement by third parties, notably private actors. Under this framework, it remains part of the test to demonstrate that the freedom of association has been substantially impeded by the exclusion from the protective legislation. However, the claimant also has the burden of demonstrating that the claim is grounded in fundamental Charter freedoms rather than in access to a particular statutory regime and, more importantly, that the state can be held accountable in some ways for the inability to exercise these fundamental freedoms. The contribution of private actors to a violation is part of the factual context in which the review takes place but cannot in itself justify the imposition of a positive obligation on the state. Thus, this framework is particularly important in order to distinguish cases where the intervention of the state is warranted. The elevated evidentiary threshold provided in the Dunmore framework also ensures that the adjudication of positive claims respects the separation of powers. It is not the proper role of the Court to confer constitutional status on a particular statutory regime. Labour relations regimes are a policy choice, designed to promote labour peace and bring certainty to the employment relationship, but they are not a constitutional imperative. --- ## Cases Cited ### By Jamal J. Applied: Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; considered: Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; Toronto (City) v. Ontario (Attorney General), 2021 SCC 34; Meredith v. Canada (Attorney General), 2015 SCC 2, [2015] 1 S.C.R. 125; Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245; referred to: Alliance des professionnels et des professionnelles de la Ville de Québec v. Procureur général du Québec, 2023 QCCA 626, 75 C.C.P.B. (2nd) 1; Procureur général du Québec v. Les avocats et notaires de l'État québécois, 2021 QCCA 559; Quebec (Commission des normes, de l'équité, de la santé et de la sécurité du travail) v. Caron, 2018 SCC 3, [2018] 1 S.C.R. 35; Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673; Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295. ### By Côté J. Applied: Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653; distinguished: Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245; considered: Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Meredith v. Canada (Attorney General), 2015 SCC 2, [2015] 1 S.C.R. 125; referred to: Syndicat canadien de la fonction publique, section locale 3939 v. Société des casinos du Québec inc.; Toronto (City) v. Ontario (Attorney General), 2021 SCC 34; Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673; Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322; Consolidated Fastfrate Inc. v. Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313; PSAC v. Canada, [1987] 1 S.C.R. 424; RWDSU v. Saskatchewan, [1987] 1 S.C.R. 460; Professional Institute of the Public Service of Canada v. Northwest Territories (Commissioner), [1990] 2 S.C.R. 367; Canadian Egg Marketing Agency v. Richardson, [1998] 3 S.C.R. 157; Lavigne v. Ontario Public Service Employees Union, [1991] 2 S.C.R. 211; R. v. Advance Cutting & Coring Ltd., 2001 SCC 70, [2001] 3 S.C.R. 209; Québec (Procureur général) v. Confédération des syndicats nationaux (CSN), 2011 QCCA 1247; Doré v. Verdun (City), [1997] 2 S.C.R. 862; Noël v. Société d'énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207; Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3; Isidore Garon ltée v. Tremblay, 2006 SCC 2, [2006] 1 S.C.R. 27; Haig v. Canada, [1993] 2 S.C.R. 995; Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Nova Scotia (Workers' Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504; Okwuobi v. Lester B. Pearson School Board, 2005 SCC 16, [2005] 1 S.C.R. 257; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3; Ontario (Attorney General) v. G, 2020 SCC 38, [2020] 3 S.C.R. 629; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Mills v. The Queen, [1986] 1 S.C.R. 863; Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, [2003] 3 S.C.R. 3; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Communauté urbaine de Montréal, 2004 SCC 30, [2004] 1 S.C.R. 789; Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Bombardier Inc. (Bombardier Aerospace Training Center), 2015 SCC 39, [2015] 2 S.C.R. 789; Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Vancouver (City) v. Ward, 2010 SCC 27, [2010] 2 S.C.R. 28; Hinse v. Canada (Attorney General), 2015 SCC 35, [2015] 2 S.C.R. 621; de Montigny v. Brossard (Succession), 2010 SCC 51, [2010] 3 S.C.R. 64; R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96; Quebec (Attorney General) v. 9147-0732 Québec inc., 2020 SCC 32, [2020] 3 S.C.R. 426. ### By Rowe J. Referred to: Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016; Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673; Toronto (City) v. Ontario (Attorney General), 2021 SCC 34; Delisle v. Canada (Deputy Attorney General), [1999] 2 S.C.R. 989; Haig v. Canada, [1993] 2 S.C.R. 995; Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391; Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245; Native Women's Assn. of Canada v. Canada, [1994] 3 S.C.R. 627; Greater Vancouver Transportation Authority v. Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3; McKinney v. University of Guelph, [1990] 3 S.C.R. 229; Congrégation des témoins de Jéhovah de St‑Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650; Dunmore v. Ontario (Attorney General) (1997), 155 D.L.R. (4th) 193. --- ## Statutes and Regulations Cited 29 U.S.C. § 152(3) (2018). Act respecting industrial accidents and occupational diseases, CQLR, c. A‑3.001, s. 2. Act respecting labour standards, CQLR, c. N‑1.1, ss. 3(6), 128. Act to establish the Administrative Labour Tribunal, CQLR, c. T‑15.1, s. 1. Canada Labour Code, R.S.C. 1985, c. L‑2, s. 3(1). Canadian Charter of Rights and Freedoms, ss. 1, 2(b), (d), 15, 24(1), 32. Charter of human rights and freedoms, CQLR, c. C‑12, ss. 3, 9.1, 49. Civil Code of Québec, preliminary provision. Civil Service Collective Bargaining Act, R.S.N.S. 1989, c. 71, ss. 2(f), 11(1)(e). Constitution Act, 1982, s. 52(1). Crown Employees Collective Bargaining Act, 1993, S.O. 1993, c. 38, s. 1.1(3) 9. Labour Act, R.S.P.E.I. 1988, c. L‑1, s. 7(2)(b). Labour Code, CQLR, c. C‑27, s. 1(l). Labour Relations Act, R.S.N.L. 1990, c. L‑1, s. 2(1)(m). Labour Relations Act, S.Q. 1944, c. 30, s. 2(a)1. Labour Relations Act, 1995, S.O. 1995, c. 1, Sch. A, s. 1(3)(b). Labour Relations Code, R.S.A. 2000, c. L‑1, s. 1(1)(l)(i). Managerial Exclusion Act, R.S.A. 2000, c. M‑3, s. 2(1). National Labor Relations Act, Pub. L. No. 74‑198, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C. §§ 151‑169). Pay Equity Act, CQLR, c. E‑12.001, s. 8. Professional Syndicates Act, R.S.Q., c. S-40 (now CQLR, c. S‑40), s. 6. Public Service Employee Relations Act, R.S.A. 2000, c. P‑43, s. 12(1)(a). Public Service Labour Relations Act, S.C. 2003, c. 22 [as en. by Public Service Modernization Act, S.C. 2003, c. 22, s. 2], s. 2(1). School Boards Collective Bargaining Act, 2014, S.O. 2014, c. 5, s. 8. Trade Union Act, R.S.N.S. 1989, c. 475, s. 2(2)(a). --- ## Treaties and Other International Instruments Convention (No. 87) concerning freedom of association and protection of the right to organize, 68 U.N.T.S. 17. Convention (No. 98) concerning the application of the principles of the right to organise and to bargain collectively, 96 U.N.T.S. 257. --- ## Authors Cited Barrett, Steven M. "Dunmore v. Ontario (Attorney General): Freedom of Association at the Crossroads" (2003), 10 C.L.E.L.J. 83. Barrett, Steven, and Ethan Poskanzer. "What Fraser Means For Labour Rights in Canada", in Fay Faraday, Judy Fudge and Eric Tucker, eds., Constitutional Labour Rights in Canada: Farm Workers and the Fraser Case. Toronto: Irwin Law, 2012, 190. Blouin, Rodrigue. "La qualification des cadres hiérarchiques par le Code du travail" (1975), 30 I.R. 478. Bogg, Alan, and Keith Ewing. "A (Muted) Voice at Work? Collective Bargaining in the Supreme Court of Canada" (2012), 33 Comp. Lab. L. & Pol'y J. 379. Brun, Henri, Guy Tremblay et Eugénie Brouillet. Droit constitutionnel, 6e éd. Cowansville, Que.: Yvon Blais, 2014. Cameron, Jamie. "Due Process, Collective Bargaining, and s. 2(d) of the Charter: A Comment on B.C. Health Services" (2006), 13 C.L.E.L.J. 233. Cameron, Jamie, and Nathalie Des Rosiers. "The Right to Protest, Freedom of Expression, and Freedom of Association", in Peter Oliver, Patrick Macklem and Nathalie Des Rosiers, eds., The Oxford Handbook of the Canadian Constitution. New York: Oxford University Press, 2017, 737. Chartier, Roger. "Le syndicalisme de cadres et la législation québécoise du travail" (1965), 20 I.R. 278. Coutu, Michel, et autres, avec la collaboration de Florence Laporte-Murdock. Droit des rapports collectifs du travail au Québec, vol. 1, Le régime général, 3e éd. Montréal: Yvon Blais, 2019. Daykin, Walter L. "The Status of Supervisory Employees Under the National Labor Relations Act" (1944), 29 Iowa L. Rev. 297. Faraday, Fay. "Taking a Mulligan: Freedom of Association", in Howard Kislowicz, Kerri A. Froc and Richard Moon, eds., Canada's Surprising Constitution: Unexpected Interpretations of the Constitution Act, 1982. Vancouver: UBC Press, 2024 (forthcoming), 335. Fudge, Judy. "Freedom of Association", in Errol Mendes and Stéphane Beaulac, eds., Canadian Charter of Rights and Freedoms, 5th ed. Markham, Ont.: LexisNexis, 2013, 527. International Labour Office. Committee on Freedom of Association. Report No. 335. Case No. 2257. "Report in which the Committee requests to be kept informed of developments", ILO Official Bulletin, vol. LXXXVII, 2004, Series B, No. 3. Langille, Brian. "Why Are Canadian Judges Drafting Labour Codes — And Constitutionalizing the Wagner Act Model?" (2009), 15 C.L.E.L.J. 101. Langille, Brian. "Why the Right-Freedom Distinction Matters to Labour Lawyers — And to All Canadians" (2011), 34 Dal. L.J. 143. Langille, Brian, and Benjamin Oliphant. "The Legal Structure of Freedom of Association" (2014), 40 Queen's L.J. 249. Morin, Fernand. L'élaboration du droit de l'emploi du Québec: Ses sources législatives et judiciaires. Montréal: Wilson & Lafleur, 2011. Morin, Fernand. Rapports collectifs du travail, 2e éd. Montréal: Thémis, 1991. Morin, Fernand, et autres. Le droit de l'emploi au Québec, 4e éd. Montréal: Wilson & Lafleur, 2010. --- APPEALS from a judgment of the Quebec Court of Appeal (Gagnon, Hogue and Beaupré JJ.A.), 2022 QCCA 180, [2022] AZ‑51828174, [2022] Q.J. No. 661 (Lexis), 2022 CarswellQue 21330 (WL), setting aside a decision of Lamarche J., 2018 QCCS 4781, [2018] AZ‑51543513, [2018] J.Q. no 10547 (Lexis), 2018 CarswellQue 10361 (WL), allowing an application for judicial review of a decision of the Administrative Labour Tribunal, 2016 QCTAT 6870, [2016] AZ‑51348664, 2016 LNQCTAT 1697 (Lexis), 2016 CarswellQue 14696 (WL). Appeals allowed. --- ## Counsel Jean Leduc and Camille Grimard, for Société des casinos du Québec inc. Michel Déom, Samuel Chayer, Caroline Renaud and Gabrielle St‑Martin Deaudelin, for the Attorney General of Quebec. Sophie Cloutier and Jean‑Luc Dufour, for the respondent. Sean Gaudet and Kirk Shannon, for the intervener the Attorney General of Canada. Savitri Gordian and Rochelle Fox, for the intervener the Attorney General of Ontario. Michael P. Wall and Leah M. McDaniel, for the intervener the Attorney General of Alberta. Geneviève Bond Roussel, for the intervener the Administrative Labour Tribunal. Timothy Lawson, Myriane Le François, Mathieu Bernier‑Trudeau and Andrew Weizman, for the intervener the Canadian Association of Counsel to Employers. Andrew Montague‑Reinholdt and Malini Vijaykumar, for the intervener the National Police Commissioned Officers Professional Association. Steven M. Barrett and Colleen Bauman, for the intervener the Canadian Labour Congress. Caroline V. (Nini) Jones and Lauren Pearce, for the interveners the Ontario Principals' Council, the Catholic Principals' Council of Ontario, Association des directions et des directions adjointes des écoles franco‑ontariennes and the Directors Guild of Canada – Ontario. Mae J. Nam, Rebecca Jones and James Yap, for the intervener the Canadian Lawyers for International Human Rights. Andrew Astritis and Morgan Rowe, for the intervener the Public Service Alliance of Canada. Catherine Fan and Danielle Glatt, for the intervener the Canadian Civil Liberties Association. Claude Tardif, Catherine Massé‑Lacoste and Marie‑Laurence Lamarre, for the intervener Syndicat professionnel des ingénieurs d'Hydro‑Québec inc. Pierre Brun, Michel Gilbert and Guillaume Grenier, for the interveners Association des cadres des collèges du Québec, Association des cadres municipaux de Montréal, Association des conseillers en gestion des ressources humaines du gouvernement du Québec, Association des cadres scolaires du Grand Montréal, Association des cadres supérieurs de la santé et des services sociaux, Association des directeurs et directrices de succursale de la Société des alcools du Québec, Association professionnelle des cadres de premier niveau d'Hydro‑Québec, Association québécoise des cadres scolaires, Association québécoise du personnel de direction des écoles and Fédération québécoise des directions d'établissement d'enseignement. --- ## Reasons for Judgment The judgment of Karakatsanis, Kasirer, Jamal and O'Bonsawin JJ. was delivered by Jamal J. — ### I. Overview [ 1 ] These appeals address whether the statutory exclusion of managers from the labour relations regime of the Quebec Labour Code, CQLR, c. C-27, infringes the guarantee of freedom of association under s. 2(d) of the Canadian Charter of Rights and Freedoms ("Canadian Charter" or "Charter") and s. 3 of the Quebec Charter of human rights and freedoms, CQLR, c. C‑12 ("Quebec Charter"). [ 2 ] The impugned statutory provision, s. 1(l)(1) of the Labour Code, defines an "employee" broadly, as "a person who works for an employer and for remuneration", but expressly excludes a person who is employed as a "manager, superintendent, foreman or representative of the employer in his relations with his employees". This provision was constitutionally challenged under s. 2(d) of the Canadian Charter and s. 3 of the Quebec Charter by the Association des cadres de la Société des casinos du Québec ("Association"), which represents certain first-level managers working at four casinos run by the Société des casinos du Québec inc. ("Société"). The Association sought to be recognized as a certified association representing first-level managers in the gaming sector at the Casino de Montréal in order to benefit from the protections of the Labour Code. [ 3 ] The Association succeeded at first instance before the Commission des relations du travail (now the Administrative Labour Tribunal ("ALT")). In response to the Société's application for judicial review, the Superior Court of Quebec quashed the ALT's decision. On further appeal, the Court of Appeal of Quebec allowed the appeal and restored the ALT's decision, subject to a 12-month suspension of the effects of the ALT's decision regarding the inoperability of the exclusion in s. 1(l)(1) of the Labour Code. [ 4 ] I would allow the appeals. In my view, the impugned provision does not infringe the freedom of association guaranteed by s. 2(d) of the Charter or s. 3 of the Quebec Charter. I set out below what I see as the proper framework for analyzing an alleged infringement of freedom of association under this Court's s. 2(d) jurisprudence.[^1] [ 5 ] In Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, Bastarache J. for a majority of this Court set out a two-step framework for evaluating alleged infringements of freedom of association. First, a court considers whether activities fall within the range of activities protected under the freedom of association guarantee. Second, the court determines whether the legislation or government action, in purpose or effect, substantially interferes with those activities (paras. 13 and 25). [ 6 ] Justice Bastarache also considered in Dunmore when underinclusive legislation engages state responsibility under s. 2(d) of the Charter and set out three factors circumscribing the possibility of successfully challenging such legislation. These factors relate to whether the claim of underinclusion is grounded in a fundamental Charter freedom, rather than access to a particular statutory regime; the evidentiary threshold for showing an interference with such a fundamental freedom; and whether the state can be held accountable for the claimant's inability to exercise the fundamental freedom (paras. 24-26). [ 7 ] My colleague Justice Côté views these three factors listed in Dunmore as creating a distinct framework for evaluating constitutional challenges to underinclusive legislation under s. 2(d) — so-called "positive rights" claims — and as imposing a higher threshold for such challenges than for challenges to legislation or government action directly interfering with associational activities — so-called "negative rights" claims (Justice Côté's reasons, at paras. 133-34 and 149). I respectfully disagree. As I read this Court's jurisprudence, there is only one framework for evaluating whether legislation or government action infringes s. 2(d). That framework, originally enunciated in Dunmore and refined in later cases such as Health Services and Support — Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, and Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3, examines, first, whether activities fall within the scope of the freedom of association guarantee, and second, whether the government action interferes with the protected activities in purpose or effect. The three factors set out in Dunmore are relevant considerations when evaluating s. 2(d) claims, but they do not constitute a separate test. [ 8 ] There is also only one threshold for evaluating all s. 2(d) claims — the threshold of substantial interference. In certain contexts, such as challenges to underinclusive legislation, it may be harder to satisfy the burden of proof to establish a substantial interference. But I respectfully disagree with my colleagues' view that, in cases of underinclusive legislation, there is a "higher threshold" than the threshold of substantial interference (Justice Côté's reasons, at paras. 137 and 149; see also Justice Rowe's reasons, at paras. 211 and 219). [ 9 ] I conclude that the Association has not shown on the record before this Court that the legislative exclusion of first-level managers from Quebec's general collective labour relations regime infringes its members' freedom of association. --- ### II. Background [ 10 ] The Association represents certain operations supervisors working for the Société. The Société is a subsidiary of the Quebec government corporation Société des loteries du Québec and oversees four government-run casinos. Operations supervisors are first-level managers in the Société's five levels of management and are responsible for ensuring the smooth operation of gaming activities and customer service. They supervise the croupiers, who are unionized employees running games in the casinos. [ 11 ] The Association applied to the ALT for association certification under the Labour Code. Because s. 1(l)(1) of the Labour Code excludes managers from its statutory labour relations regime, including from the ability to obtain association certification, the Association sought a ruling that this statutory exclusion unjustifiably infringed its members' freedom of association under s. 2(d) of the Charter and s. 3 of the Quebec Charter. [ 12 ] The ALT concluded that the exclusion of managers from the definition of "employee" unjustifiably infringed the freedom of association of the operations supervisors (2016 QCTAT 6870). The administrative judge drew a parallel between the Association's constitutional challenge and the constitutional challenge addressed in this Court's decision in Mounted Police, which also involved a challenge to a legislative exclusion from a general labour relations scheme. In the view of the administrative judge, the Association, as in Mounted Police, was not seeking to impose a positive obligation on the state to enact protective legislation. Rather, the Association was asking the state to refrain from disrupting the balance of power between its members and their employer through the legislative exclusion (paras. 368-78). [ 13 ] On judicial review, the Superior Court of Quebec quashed the ALT's decision (2018 QCCS 4781). In the Superior Court's view, the Association sought to impose a positive obligation on the state, which the court held must be analyzed under the framework in Dunmore, rather than under the framework in Mounted Police. The court did not regard the ALT's error in characterizing the Association's claim as determinative, since the administrative judge considered the three Dunmore factors in reaching her conclusion (paras. 71-83). Still, the court held that the administrative judge erred in applying that test and ruled that the Association did not establish an infringement of its members' freedom of association. [ 14 ] On appeal, the Court of Appeal of Quebec overturned the Superior Court's ruling and restored the ALT's decision, subject to a 12-month suspension of the declaration of inoperability of s. 1(l)(1) of the Labour Code (2022 QCCA 180). The Court of Appeal followed Mounted Police and applied the two-part substantial interference test as the proper framework under s. 2(d). The court noted that this Court's decision in Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, left open whether the Dunmore framework continues to apply in the labour relations context (para. 127). In the Court of Appeal's view, on the one hand, if the distinction between positive and negative rights is no longer relevant to the framework for evaluating s. 2(d) claims, then the two-part test in Mounted Police applies. If, however, the distinction remains relevant, then the ALT correctly characterized the Association's claim as a negative rights claim, since the Association seeks freedom from government interference caused by the legislative exclusion (paras. 133-36). --- ### III. Analysis [ 15 ] In Toronto (City), a s. 2(b) freedom of expression case, a majority of this Court refrained from deciding whether Dunmore continues to apply to s. 2(d) claims after the Court's decisions in Fraser and Mounted Police. The majority stated that "[w]e need not decide here whether Dunmore remains applicable to s. 2(d) claims", which the majority called "an open question" after Fraser and Mounted Police (Toronto (City), at para. 21). [ 16 ] I agree with my colleague Justice Côté that Dunmore was not overturned by Fraser or Mounted Police and remains good law. At the same time, I respectfully disagree with her on how to interpret Dunmore given this Court's subsequent s. 2(d) jurisprudence. #### A. The Framework for Applying Section 2(d) of the Charter [ 17 ] The framework for determining whether legislation or government action infringes s. 2(d) of the Charter was established by this Court in Dunmore. Writing for the majority, Bastarache J. articulated the following two-part test: > In order to establish a violation of s. 2(d), the appellants must demonstrate, first, that such activities fall within the range of activities protected by s. 2(d) of the Charter, and second, that the impugned legislation has, either in purpose or effect, interfered with these activities . . . . [para. 13] [ 18 ] The issue in Dunmore was whether the exclusion of agricultural workers from Ontario's statutory labour relations regime infringed s. 2(d) of the Charter. In that context, this Court considered whether underinclusive legislation could interfere with the exercise of a fundamental freedom. Justice Bastarache stated that although there is no constitutional right to protective legislation, underinclusive legislation could lead to an interference with the exercise of a fundamental freedom "in unique contexts" (para. 22). As he explained"depending on the circumstances, freedom of association may, for example, prohibit the selective exclusion of a group from whatever protections are necessary to form and maintain an association, even though there is no constitutional right to such statutory protection per se" (para. 28). [ 19 ] Justice Bastarache noted three factors that "function to circumscribe, but not to foreclose, the possibility of challenging underinclusion under s. 2 of the Charter" (para. 24). First, the claim must be "plausibly" grounded in a fundamental Charter freedom, rather than in access to a particular statutory regime (para. 24). Second, the evidence must show that the exclusion "permits a substantial interference" with the claimant's exercise of the fundamental freedom (para. 25 (emphasis in original)). Third, the state must be accountable for the claimant's inability to exercise the fundamental freedom, in that it "orchestrates, encourages or sustains the violation of fundamental freedoms" (para. 26). [ 20 ] My colleague Justice Côté views these three factors as creating a distinct framework for claims seeking positive state intervention to enable the exercise of the fundamental freedom of association. I respectfully disagree. As I will explain, I read this Court's jurisprudence as establishing only one framework for evaluating alleged infringements of freedom of association under s. 2(d). That framework asks whether activities are protected under s. 2(d) and whether the government action has, in purpose or effect, substantially interfered with those activities. The factors set out in Dunmore are relevant factors when considering whether s. 2(d) has been infringed, but they do not constitute a separate test. ##### (1) A Review of This Court's Jurisprudence ###### (a) Dunmore (2001) [ 21 ] Justice Bastarache's analysis in Dunmore itself is instructive for understanding the interaction between the two-part test and what he called factors that "circumscribe, but [do] not . . . foreclose" the possibility of challenging underinclusive legislation under s. 2(d) of the Charter (para. 24). In considering whether the legislative exclusion of agricultural workers from Ontario's labour relations regime infringed s. 2(d), Bastarache J. readily concluded that the workers sought to engage in the protected s. 2(d) activity of the freedom to organize. He then considered whether the exclusion substantially interfered with the exercise of this associational activity, either in purpose or effect (paras. 30 and 35). Although Bastarache J. declined to find that the exclusion was intended to infringe the workers' freedom to organize (at paras. 31-33), he accepted that the effect of the exclusion was to substantially interfere with the workers' associational freedoms (paras. 34-48). He analyzed the effects of the exclusion by considering the three circumscribing factors discussed earlier in his decision (para. 35). [ 22 ] In particular, Bastarache J. noted that the agricultural workers did not seek a right to be included in a specific labour relations regime extended to certain citizens. Rather, they challenged their exclusion from a regime designed "not simply [to] enhance", but to "instantiat[e] the freedom to organize" (paras. 36-38). The record before the Court demonstrated that the workers were unable to organize without the protective regime (paras. 39-42). The legislative exclusion also substantially reinforced private interferences with the workers' exercise of their freedoms by placing a chilling effect on non-statutory union activity, such that the state was partly responsible for their inability to associate (paras. 43-48). [ 23 ] Ultimately, Bastarache J. concluded that the legislative exclusion substantially interfered with the agricultural workers' freedom to organize and was not justified under s. 1 of the Charter (paras. 48 and 65). By framing his analysis around the two-part test, Bastarache J. showed that the general framework for evaluating s. 2(d) claims examines whether the purpose or effect of the government action substantially interferes with associational activity. Justice Bastarache considered the circumscribing factors in making this assessment. As he explained, the "burden imposed by s. 2(d) . . . focuses on the effects of underinclusion on the ability to exercise a fundamental freedom" (para. 28). However, these factors did not constitute a separate test for whether s. 2(d) was infringed. ###### (b) Health Services (2007) [ 24 ] Six years later, in Health Services, this Court built on Dunmore and confirmed that the substantial interference test applies to all s. 2(d) challenges (paras. 90-92 and 109). The case did not involve a challenge to underinclusive legislation, but rather to legislation that directly interfered with collective bargaining by invalidating certain provisions of collective agreements and preventing future bargaining on certain matters. Speaking for the majority, McLachlin C.J. and LeBel J. referred to "the requirements set out in Dunmore for a breach of s. 2(d)" (para. 96) and confirmed that a party alleging a breach of s. 2(d) must show that the government action, either in purpose or effect, involves a substantial interference with the associational right of collective bargaining (para. 90). They also affirmed the principles, first articulated as circumscribing factors in Dunmore, that s. 2(d) does not guarantee access to a particular statutory regime and that a successful claim under s. 2(d) requires a claimant to establish that the government is responsible for the interference with the protected s. 2(d) right (para. 19). In essence, the majority in Health Services affirmed the three Dunmore factors as general principles and extended them beyond the specific context of underinclusive legislation to all s. 2(d) claims. ###### (c) Fraser (2011) [ 25 ] In Fraser, McLachlin C.J. and LeBel J. for the majority reaffirmed the framework in Dunmore and Health Services. Fraser concerned the constitutionality of a separate labour relations regime in Ontario for agricultural workers introduced in response to Dunmore. The regime protected the rights of agricultural workers to associate and to make collective representations to their employer but did not include other collective bargaining rights available under the general labour relations regime. [ 26 ] The majority in Fraser affirmed that substantial interference can arise from legislative interference or exclusion from a legislative scheme. McLachlin C.J. and LeBel J. wrote that "[i]f it is shown that it is impossible to meaningfully exercise the right to associate due to substantial interference by a law (or absence of laws: see Dunmore) or by government action, a limit on the exercise of the s. 2(d) right is established" (para. 47). They also underscored that s. 2(d) does not guarantee access to a particular model for exercising associational freedoms (at para. 45) and that substantial interference must flow from state action rather than from the actions of private employers (para. 73). [ 27 ] The majority in Fraser cautioned that a "bright line between freedoms and rights seems . . . impossible to maintain" (para. 67) and highlighted that this Court "has consistently rejected a rigid distinction between 'positive' freedoms and 'negative' rights in the Charter" (para. 69). In the majority's view"[a] purposive protection of freedom of association may require the state to act positively to protect the ability of individuals to engage in fundamentally important collective activities" (para. 70). As an example, the majority noted that "individuals have a right against the state to a process of collective bargaining in good faith, and that this right requires the state to impose statutory obligations on employers" (para. 73, commenting on Health Services). [ 28 ] Parenthetically, I note that several commentators agree that it is challenging to draw a bright line between positive freedoms and negative rights in the labour relations context. This is, in part, because the state has "deep and extensive involvement" in regulating the rights and freedoms of workers"both by protecting, and by tightly circumscribing and restricting" associational activities (S. Barrett and E. Poskanzer"What Fraser Means For Labour Rights in Canada", in F. Faraday, J. Fudge and E. Tucker, eds., Constitutional Labour Rights in Canada: Farm Workers and the Fraser Case (2012), 190, at p. 193; see also pp. 196 and 223; see also F. Faraday"Taking a Mulligan: Freedom of Association" in H. Kislowicz, K. A. Froc and R. Moon, eds., Canada's Surprising Constitution: Unexpected Interpretations of the Constitution Act, 1982 (2024 (forthcoming)), 335, at pp. 349-50). As Professor Judy Fudge has observed, in the labour relations context, while the distinction between positive obligations to provide legislative protection and negative duties to avoid legislative interference "initially seems plausible, it is difficult to defend since, in Canada as in most countries, freedom of association in the labour relations context is integrally bound up with statutory protection" ("Freedom of Association", in E. Mendes and S. Beaulac, eds., Canadian Charter of Rights and Freedoms (5th ed. 2013), 527, at p. 553; see also J. Cameron"Due Process, Collective Bargaining, and s. 2(d) of the Charter: A Comment on B.C. Health Services" (2006), 13 C.L.E.L.J. 233, at p. 256). Since in the labour relations context the fundamental freedom of association is exercised mainly through statutory vehicles, one commentator has suggested that "[t]here is no black-and-white line between enabling and enhancing the exercise of a freedom" (S. M. Barrett"Dunmore v. Ontario (Attorney General): Freedom of Association at the Crossroads" (2003), 10 C.L.E.L.J. 83, at p. 112). [ 29 ] Finally, the majority in Fraser traced a straight line between the approach in that case and the earlier cases of Dunmore and Health Services. The majority stated that the "decision in Health Services follows directly from the principles enunciated in Dunmore" (para. 38; see also paras. 39 and 62) and affirmed that "Health Services applied the principles developed in Dunmore" (para. 43). The majority also drew parallels between the issues in Dunmore and Health Services and the issue in Fraser, stating that "[t]he question here, as it was in those cases, is whether the legislative scheme . . . renders association in pursuit of workplace goals impossible, thereby substantially impairing the exercise of the s. 2(d) associational right" (para. 48). Thus, despite the varied framing of the challenged government action in Dunmore, Health Services, and Fraser — underinclusive legislation, legislation directly interfering with association, and insufficiently robust legislation, respectively — in all three cases, this Court applied the same framework of substantial interference. ###### (d) Mounted Police (2015) [ 30 ] A few years after Fraser, this Court in Mounted Police held that legislation excluding members of the Royal Canadian Mounted Police from collective bargaining under the general labour relations scheme for federal public servants, and imposing an alternative labour relations regime, unjustifiably infringed s. 2(d) of the Charter. Writing for the majority, McLachlin C.J. and LeBel J. stated that s. 2(d) "protects associational activity for the purpose of securing the individual against state-enforced isolation and empowering individuals to achieve collectively what they could not achieve individually" (para. 62). The majority reiterated that s. 2(d) does not guarantee access to a specific statutory regime (at para. 67) and affirmed that "the ultimate question to be determined is whether the measures disrupt the balance between employees and employer that s. 2(d) seeks to achieve, so as to substantially interfere with meaningful collective bargaining" (para. 72). The majority in Mounted Police also underscored that this Court's s. 2(d) precedents, from Dunmore to Health Services to Fraser, should be read and understood as consistent with each other, and that"[m]ore generally, they must be understood consistently with this Court's purposive and generous approach to s. 2(d)" (para. 77). ###### (e) Meredith (2015) [ 31 ] The substantial interference framework for s. 2(d) claims was also set out in the companion case to Mounted Police, Meredith v. Canada (Attorney General), 2015 SCC 2, [2015] 1 S.C.R. 125, where McLachlin C.J. and LeBel J. for the majority stated that"[i]n s. 2(d) cases, the courts must ask whether state action has substantially impaired the employees' collective pursuit of workplace goals" (para. 24). ###### (f) Saskatchewan Federation of Labour (2015) [ 32 ] Most recently, the substantial interference framework was applied by Abella J. for the majority in Saskatchewan Federation of Labour v. Saskatchewan, 2015 SCC 4, [2015] 1 S.C.R. 245, which held that a statutory prohibition on the right to strike infringed s. 2(d) (para. 78). ###### (g) Summary [ 33 ] To sum up, this Court's s. 2(d) jurisprudence reveals that the Court has consistently applied a two-part framework that examines whether activities fall within the scope of s. 2(d) and whether government action has substantially interfered with those activities, in purpose or effect. This Court has also highlighted that its s. 2(d) jurisprudence since Dunmore should be viewed as a consistent body of case law. [ 34 ] Dunmore was not overturned by this Court's decisions in Mounted Police or Fraser. Nor does this Court's jurisprudence create two tests, one for claims seeking positive intervention from the state and another for claims seeking negative protection against state interference. Although the Dunmore factors have not been identified and analyzed each time the Court has been asked to determine whether legislation or government action infringed s. 2(d) of the Charter, the underlying principles have been consistently reaffirmed. These principles, or Dunmore factors, circumscribe the possibility of successfully challenging underinclusive legislation, but they do not constitute a separate test. Rather, they provide guidance to ensure the analysis is focused on determining whether legislation or government action substantially interferes in purpose or effect with the claimant's ability to engage in activities within the scope of s. 2(d). [ 35 ] It is not always necessary to consider each Dunmore factor expressly. Sometimes, the state's responsibility in causing the substantial interference is self-evident. Consider, for example, legislation that prohibits a type of associational activity, such as a ban on striking. The Dunmore factor of ensuring that the interference is attributable to the state rather than a private actor is still relevant, but it is so self-evident that the interference is attributable to the state that it need not be discussed expressly. In other cases, as Bastarache J. cautioned in Dunmore, a court must be careful in evaluating the evidence to disentangle the effects of the impugned legislation or government action from external elements and determine whether the legislation or government action "substantially orchestrates, encourages or sustains the violation" (para. 26). [ 36 ] Nor does Dunmore establish a higher threshold for establishing an infringement of s. 2(d) in claims seeking state intervention. In all cases, the threshold for proving an infringement of s. 2(d) is substantial interference. This threshold was first explained in Dunmore (at para. 25) and has been consistently applied in this Court's subsequent s. 2(d) jurisprudence (Health Services, at paras. 19 and 90; Fraser, at paras. 2 and 47; Mounted Police, at para. 72; Meredith, at paras. 4 and 24-25; Saskatchewan Federation of Labour, at paras. 2 and 25). [ 37 ] It may be harder for a claimant to meet their burden of proof when challenging underinclusive legislation or when seeking state intervention since, as noted above, the effects of underinclusive legislation can be hard to disentangle from other factors. As this Court noted in Dunmore, it will be in "unique contexts" that underinclusive legislation amounts to substantial interference (para. 22). In all cases, however, the threshold to establish an infringement of s. 2(d) remains substantial interference. A claimant alleging that underinclusive legislation infringes s. 2(d) need not meet an elevated threshold. #### (2) Section 2(b) and Section 2(d) of the Charter Have Different Frameworks [ 38 ] As noted above, the majority of this Court in Toronto (City), at para. 21, a case involving freedom of expression under s. 2(b) of the Charter, had declined to consider and left open whether the Dunmore approach to s. 2(d) "remains applicable" after this Court's decisions in Fraser and Mounted Police. I have addressed why this Court's s. 2(d) jurisprudence already confirms that Dunmore remains good law and how this Court built on Dunmore in Fraser and Mounted Police. [ 39 ] It is also useful to highlight briefly the different evolution of the frameworks under ss. 2(b) and 2(d) of the Charter to explain why the distinction between positive freedoms and negative rights is not relevant in determining the framework for s. 2(d) claims, even though it has been recently affirmed in Toronto (City) in the context of s. 2(b). [ 40 ] At issue in Toronto (City) was whether legislation that reduced the number of wards in an ongoing municipal election infringed the electoral candidates' right to freedom of expression under s. 2(b) of the Charter. A majority of this Court affirmed the distinction between the tests for positive freedoms and negative rights claims in the context of s. 2(b), citing the Court's earlier decision in Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673, which had also applied the three Dunmore factors under s. 2(b) (Baier, at para. 30). In Toronto (City), the majority refined the framework for positive freedoms claims involving freedom of expression, distilling the framework to the single question of whether the "claim [is] grounded in the fundamental Charter freedom of expression, such that, by denying access to a statutory platform or by otherwise failing to act, the government has either substantially interfered with freedom of expression, or had the purpose of interfering with freedom of expression" (para. 25). [ 41 ] As a result, in the context of claims under s. 2(b) of the Charter, the threshold for proving positive freedom claims is substantial interference with freedom of expression (Toronto (City), at para. 25). However, the threshold for negative rights claims involving freedom of expression, as explained in Irwin Toy Ltd. v. Quebec (Attorney General), [1989] 1 S.C.R. 927, is whether the purpose or effect of the government action merely restricts freedom of expression (Toronto (City), at para. 24, citing Irwin Toy, at p. 971, and Baier, at paras. 27-28 and 45). [ 42 ] In the freedom of association context, by contrast, the threshold for both "positive" and "negative" freedom of association claims is the same: substantial interference (see Dunmore, at para. 25; Health Services, at paras. 19 and 90; Fraser, at paras. 2 and 47; Mounted Police, at para. 72; Meredith, at paras. 4 and 24-25; Saskatchewan Federation of Labour, at paras. 2 and 25). There is not a more stringent threshold for positive rights claims under s. 2(d). For freedom of association claims, the "elevated threshold in the second Dunmore factor" (Toronto (City), at para. 25) of substantial interference already applies to all claims involving both positive and negative duties (Fudge, at pp. 545-46 and 550). [ 43 ] Academic commentators have also noted that the standard of breach for a s. 2(d) claim "is strict, and bears little resemblance to the analogous tes[t] for expressive . . . freedom under section 2(b)" (J. Cameron and N. Des Rosiers"The Right to Protest, Freedom of Expression, and Freedom of Association", in P. Oliver, P. Macklem and N. Des Rosiers, eds., The Oxford Handbook of the Canadian Constitution (2017), 737, at p. 749; see also Faraday, at p. 353). [ 44 ] In summary, the frameworks under ss. 2(b) and 2(d) have evolved differently in this Court's jurisprudence. This helps explain why the distinction between positive freedoms and negative rights is not relevant in determining the applicable framework for s. 2(d) claims, even though it has been recently affirmed in the s. 2(b) context. --- #### B. Application [ 45 ] Having set out the proper framework under s. 2(d) of the Charter, I now apply that framework to the Association's claims here. In doing so, I agree with my colleague Justice Côté's comments on the standard of review and apply the standard of correctness to the questions of law and mixed fact and law at issue in these appeals (paras. 94-97). ##### (1) The Association's Claim Involves Activities Protected Under Section 2(d) [ 46 ] At the first step of the s. 2(d) framework, the Court must determine whether the activities that the members of the Association seek to engage in fall within the scope of s. 2(d) of the Charter. In addressing this issue, the Court must consider whether the Association can "plausibly ground [its] action in a fundamental Charter freedom" (Dunmore, at para. 24). [ 47 ] The Association argues that its members' statutory exclusion from the protections of the Labour Code prevents them from engaging in a process of meaningful collective bargaining with their employer, with constitutional protection for the Association, sufficient independence from the employer, and the right to recourses if the employer does not negotiate in good faith. The Association's claim involves activities protected under s. 2(d) of the Charter, which includes the right to form an association with sufficient independence from the employer, to make collective representations to the employer, and to have those representations considered in good faith (Saskatchewan Federation of Labour, at para. 29; Mounted Police, at para. 81; see also Faraday, at p. 348). [ 48 ] As a remedy, the Association asks this Court to declare the legislative exclusion of no force or effect in the context of its request for association certification. Unlike my colleague Justice Côté (at paras. 155-59), in my view the specific remedy the Association seeks is not a sufficient basis to dismiss the s. 2(d) claim because the Association can "plausibly ground [its] action in a fundamental Charter freedom" (Dunmore, at para. 24). This is because the Association's claim is made to allow its members to exercise their right to a meaningful collective bargaining process, which, as previously noted, exists independently of the Labour Code as part of the associational activities protected under s. 2(d). The Association's members are not merely seeking access to a statutory regime. [ 49 ] It is of limited utility to focus on the remedy sought for another reason. Even if the Court were to determine that the legislative exclusion infringes the freedom of association of the Association's members, the Court could leave to the legislature the discretion to determine how to give proper effect to the members' s. 2(d) rights (Fudge, at p. 532; A. Bogg and K. Ewing"A (Muted) Voice at Work? Collective Bargaining in the Supreme Court of Canada" (2012), 33 Comp. Lab. L. & Pol'y J. 379, at pp. 399-400). For example, although this Court in Mounted Police concluded that the exclusion of RCMP members from the general labour relations regime substantially interfered with the freedom of association, the Court stated that Parliament was not obligated to include the RCMP in the general labour relations scheme and "remain[ed] free to enact any labour relations model it considers appropriate to the RCMP workforce, within the constitutional limits imposed by the guarantee enshrined in s. 2(d)" (para. 156). ##### (2) The Legislative Exclusion Does Not Substantially Interfere With the Members of the Association's Section 2(d) Activities [ 50 ] At the second step of the analysis, the Court must determine whether the legislative exclusion, in purpose or effect, substantially interferes with the protected s. 2(d) activities of the Association's members. In addressing this issue, the Court must consider whether the state is responsible for the members' inability to exercise their fundamental freedoms under s. 2(d). [ 51 ] In my view, the purpose of the legislative exclusion is not to interfere with managers' associational rights. As my colleague Justice Côté explains, the legislature's purposes in excluding managers from the definition of "employee" under the Labour Code were to distinguish between management and operations in organizational hierarchies; to avoid placing managers in a situation of conflict of interest between their role as employees in collective bargaining and their role as representatives of the employer in their employment responsibilities; and to give employers confidence that managers would represent their interests, while protecting the distinctive common interests of employees (paras. 168-69). [ 52 ] The Association has also failed to show, on the record before this Court, that the effect of the legislative exclusion is to substantially interfere with its members' rights to meaningful collective bargaining. The operations supervisors managed to group together to form the Association. The Montréal division of the Association was voluntarily recognized by the Société as the representative association of the operations supervisors. The Société and the Montréal division of the Association have successfully concluded a memorandum of understanding providing a framework for collaboration and consultation on working conditions and related issues. Under this framework, the Société and the Association have agreed to meet on request to discuss workplace concerns in order to find [translation] "win-win solutions" (cl. 1(b), reproduced in A.R., vol. V, at p. 1). They have committed [translation] "to act in a spirit of cooperation and collaboration in their relations with each other" (cl. 2(c)). The Société has also agreed for the Casino de Montréal to consult the Association before setting or changing the working conditions of operations supervisors in the gaming sector (cl. 2(b)). [ 53 ] The framework also provides that the Société will collect union dues on behalf of the Association from its members. And the Société has agreed to release union representatives, with pay, for meetings with representatives of the Casino de Montréal and for Association meetings. The Société has also agreed to release union representatives, with pay, for union-related activities, with their pay later billed to the Association (cl. 4; see Justice Côté's reasons, at paras. 174-78). [ 54 ] The terms of the memorandum of understanding demonstrate that the Association's members are able to associate and collectively bargain with their employer. Contrary to the conclusions of the ALT and the Court of Appeal, the voluntary nature of the Société's recognition of the Association and the consultation framework is not in itself a substantial interference with the right to meaningful collective bargaining. As observed by this Court in Mounted Police"nothing in the Charter prevents an employee association from engaging willingly with an employer in different, less adversarial and more cooperative ways" (para. 97). [ 55 ] The Société, as a government corporation, must respect the Canadian Charter. It must also respect the Quebec Charter. Although the record shows that the Société has neglected to properly respect the memorandum of understanding at times, the Association can seek remedies in court for any substantial interference with its members' right to meaningful collective bargaining, including their right to strike, which is protected under s. 2(d) even without an enabling legislative framework (Saskatchewan Federation of Labour, at para. 61). In my respectful view, without evidence on the record that these remedies are inadequate, the Court of Appeal and the ALT could not conclude that the lack of access to a specialized dispute resolution mechanism or legislative protection of the right to strike causes a substantial interference with the members' freedom of association. The right to meaningful collective bargaining does not guarantee access to a particular model of labour relations (Mounted Police, at para. 67). [ 56 ] Nor does the record show that the Société's failure to respect the memorandum of understanding or negotiate in good faith with the Association flows from the legislative exclusion. Unlike in Dunmore, there is no evidence that the legislative exclusion orchestrates, encourages, or sustains a violation of the fundamental freedoms of the Association's members. [ 57 ] Although my colleague Justice Côté reaches this conclusion partly by underscoring the absence of any "special vulnerability" of the operations supervisors (at paras. 129 and 131; see also paras. 130 and 133), I limit my conclusions strictly to the record, which fails to show a connection between the legislative exclusion and the Société's actions. Proof of additional vulnerability is not required if the evidence shows a causal link between the underinclusive legislation and the alleged s. 2(d) violation (see Barrett, at pp. 110-11). It is well recognized that freedom of association "specifically addresses power imbalances in society" (Faraday, at p. 342). Moreover, as the majority observed in Mounted Police"[t]he guarantee entrenched in s. 2(d) of the Charter cannot be indifferent to power imbalances in the labour relations context. To sanction such indifference would be to ignore 'the historical origins of the concepts enshrined' in s. 2(d)" (para. 80, quoting R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 344). --- ### IV. Conclusion [ 58 ] Applying the two-part substantial interference test that applies to all s. 2(d) claims, I conclude that the Association has not shown that the legislative exclusion of first-level managers from Quebec's general collective labour relations regime infringes its members' freedom of association under s. 2(d) of the Canadian Charter or s. 3 of the Quebec Charter. I would allow the appeals with costs, set aside the Court of Appeal's judgment, quash the ALT's decision, and declare that s. 1(l)(1) of the Labour Code applies to the Association in its application for accreditation. --- ## Concurring Reasons English version of the reasons of Wagner C.J. and Côté J. delivered by Côté J. — ### Table of Contents | Section | Paragraph | |---------|-----------| | I. Introduction | 59 | | II. Background | 64 | | III. Judicial History | 71 | | A. Administrative Labour Tribunal, 2016 QCTAT 6870 (Administrative Judge Zaïkoff) | 71 | | B. Quebec Superior Court, 2018 QCCS 4781 (Lamarche J.) | 79 | | C. Quebec Court of Appeal, 2022 QCCA 180 (Gagnon, Hogue and Beaupré JJ.A.) | 85 | | IV. Issues | 91 | | V. Analysis | 92 | | A. Applicable Standard of Review | 92 | | B. Content of Freedom of Association | 98 | | C. The Association Is Seeking Positive State Action | 122 | | D. Section 2(d) Framework | 133 | | E. Does the Exclusion of the Association's Members From the L.C. Regime Infringe Freedom of Association? | 154 | | (1) The Association and Its Members Are Seeking Access to a Particular Labour Relations Regime, the L.C. | 154 | | (2) The Exclusion in Section 1(l)(1) L.C. Does Not Have the Purpose or Effect of Substantially Interfering With the Freedom of Association of the Association's Members | 160 | | (a) The Purpose of the Exclusion in Section 1(l)(1) L.C. Is Not To Substantially Interfere With the Freedom of Association of the OSs as First‑Level Managers | 161 | | (b) The Legislative Exclusion Does Not Have the Effect of Substantially Interfering With Freedom of Association | 172 | | (3) On the Assumption That There Is Substantial Interference, the State Cannot Be Held Accountable for the Interference at the Third Step of the Dunmore Framework | 186 | | VI. Disposition | 198 | | Appendix — Relevant Constitutional and Statutory Provisions | | ### I. Introduction [ 59 ] The Labour Code, CQLR, c. C‑27 ("L.C."), governs the organization of most collective labour relations in Quebec. Section 1(l)(1) L.C. excludes from the scope of the L.C. any person who, in the opinion of the Administrative Labour Tribunal ("ALT")"is employed as manager, superintendent, foreman or representative of the employer in his relations with his employees". [ 60 ] On May 5, 1995, a labour commissioner concluded that the gaming table supervisors working for Société des casinos du Québec inc. ("Société") were line managers at Casino de Montréal, which excluded them from the scope of the L.C. because of the exclusion set out in s. 1(l)(1) of this statute. On September 21, 1995, that decision was upheld on appeal by the Labour Court (Syndicat canadien de la fonction publique, section locale 3939 v. Société des casinos du Québec inc.). In 2005, in the context of a restructuring, the position of table supervisor was abolished and the duties of that position were assigned to the newly created position of "operations supervisor" ("OS"). The higher supervisory level was also eliminated. The OSs therefore inherited greater supervisory responsibilities with respect to the croupiers. [ 61 ] The proceeding brought by the Association des cadres de la Société des casinos du Québec ("Association") concerns the constitutionality of the exclusion of these employees from the L.C. regime. The Association argues that the legislative exclusion in s. 1(l)(1) L.C. infringes the freedom of association guaranteed by s. 2(d) of the Canadian Charter of Rights and Freedoms ("Canadian Charter") and s. 3 of the Charter of human rights and freedoms, CQLR, c. C‑12 ("Quebec Charter"), in a manner that cannot be justified under s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter. [ 62 ] These appeals provide the Court with an opportunity to clarify the status of the framework established in Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016. As the Court noted in Toronto (City) v. Ontario (Attorney General), 2021 SCC 34, at para. 21, Dunmore was discussed in Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, and Mounted Police Association of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3 ("MPAO"), without being overturned. In my opinion, and for the reasons set out below, the Dunmore framework remains applicable to constitutional challenges to the exclusion of workers from a labour relations regime. [ 63 ] Applying this framework to the facts of this case, I arrive at the conclusion that the impugned legislative exclusion does not limit the freedom of association guaranteed by the Canadian and Quebec charters. --- ### II. Background [ 64 ] The Société, a subsidiary of the Société des loteries du Québec ("Loto‑Québec"), manages four casinos in Quebec. The Association, created in 1997 under the Professional Syndicates Act, R.S.Q., c. S‑40 (now CQLR, c. S‑40), represents certain OSs. The OSs supervise the work of the croupiers, who are unionized employees, and also oversee the operations of the gaming sector, which includes the gaming tables, the slot machines, keno (a type of bingo) and the poker rooms. The OSs are the employers' eyes and ears on the floor. [ 65 ] On September 19, 2001, following negotiations, the Association and the Société entered into a memorandum of understanding ("Memorandum") that was meant to govern certain aspects of collective labour relations between the table supervisors (later replaced by the OSs) and the Société. During the years after the Memorandum was entered into, numerous disputes arose concerning its application and the negotiation of certain conditions of employment. [ 66 ] On March 18, 2003, the Association, together with the Confédération nationale des cadres du Québec, the Association des cadres supérieurs de la santé et des services sociaux and the Association des directeurs et directrices de succursale de la Société des alcools du Québec, filed a complaint with the International Labour Organization's Committee on Freedom of Association. In that complaint, the Association challenged the exclusion in s. 1(l)(1) L.C. under the International Labour Organization's Convention (No. 87) concerning freedom of association and protection of the right to organize, 68 U.N.T.S. 17, and Convention (No. 98) concerning the application of the principles of the right to organise and to bargain collectively, 96 U.N.T.S. 257. [ 67 ] In its report, the Committee concluded that the exclusion in s. 1(l)(1) L.C. prevented managerial personnel from unionizing, although they were able to "form associations, which enjoy significant prerogatives" (Report No. 335 (2004), vol. LXXXVII, Series B, No. 3, at para. 459). The Committee recommended that the L.C. be amended "so that managerial personnel enjoy the right to benefit from the general provisions of collective labour law and form associations that enjoy the same rights, prerogatives and means of redress as other workers' associations" (para. 463). [ 68 ] On September 5, 2007, in response to the Committee's report, the Quebec government proposed a good governance guide that was to apply [translation] "to managerial personnel in the public and parapublic sectors (public service, education, and health and social services) represented by an association recognized by government order or ministerial order" (A.R., vol. VI, at p. 273). The guide suggested, among other things, that there be an agreement setting out the process for consulting the associations when the state, the employer, wished to modify their members' conditions of employment. The guide also contained suggestions about what form that process should take, and it proposed that disputes relating to compliance with the agreed consultation process be referred to the appropriate departmental authority. It should be noted that the guide did not apply to state‑owned enterprises and therefore had no impact on collective labour relations at the Société. [ 69 ] In 2009, the Association filed a petition with the Commission des relations du travail (now the ALT[^2]) seeking certification under the L.C. Through its petition, the Association applied to represent the OSs in all divisions of the gaming sector of Casino de Montréal. At the time of the hearings, the Association represented 250 OSs assigned to the gaming tables at Casino de Montréal and Casino du Lac‑Leamy, that is, 70 percent of the Société's gaming table OSs. The Association's membership also included OSs from divisions other than gaming tables. [ 70 ] In response to the Association's petition for certification, the Société raised an exception to dismiss based on the exclusion set out in s. 1(l)(1) L.C. It is important to note that this is the context in which the Association contends that this provision is unconstitutional. --- ### III. Judicial History #### A. Administrative Labour Tribunal, 2016 QCTAT 6870 (Administrative Judge Zaïkoff) [ 71 ] The administrative judge was of the view that s. 1(l)(1) L.C. unjustifiably infringed the freedom of association of the persons covered by the Association's petition for certification. She accordingly declared the provision to be of no force or effect for the purposes of the petition. [ 72 ] The administrative judge found that the Association was not seeking positive state action. In her opinion, the purpose of the petition was only to ensure that the Association's members were not deprived of adequate protection in their relations with the Société so that they were not impeded from exercising their freedom of association. Consequently, the administrative judge did not apply the framework established by our Court in Dunmore and Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673. [ 73 ] The administrative judge held that the legislative exclusion had the effect of substantially interfering with the freedom of association of the Association's members. First, the judge was of the view that the legislative exclusion deprived the Association's members of protection from meddling or interference by the employer in the recognition of the Association's representative character. Second, she found that there was a power imbalance between the first‑level managers and the executive that affected collective bargaining. Indeed, in her opinion, the managers felt caught [translation] "between 'a rock and a hard place'" (para. 315) and lacked resources like those of the Société, which was closely linked to the state apparatus. Third, the judge concluded from her review of the evidence that the Société was not open to discussing a number of subjects related to labour relations, such as the inclusion of conditions of employment in the Memorandum, the determination of the members represented by the Association, the conditions of employment affecting wages, and staff movement. Fourth, the legislative exclusion deprived the Association's members of effective legal recourses for sanctioning non‑compliance with the Memorandum or for resolving difficulties in its interpretation and application. Having recourse to the ordinary courts was not comparable, from the standpoint of accessibility and speed, to having recourse to a specialized tribunal, nor did it make it possible to obtain the remedies required in the collective labour relations context. Finally, the administrative judge was of the opinion that, in practice, the legislative exclusion took away the right to strike of the first‑level managers who were the Association's members. Indeed, outside of legislation governing this right, employees cannot cease to perform their work without facing disciplinary action. [ 74 ] The administrative judge attributed responsibility for this interference to the state because, in her view, the exclusion of first‑level managers was contrary to the state's international commitments, as the International Labour Organization's Committee on Freedom of Association had concluded. [ 75 ] If the Association had been seeking positive state action, the administrative judge would have found that the requirements in Baier were met, because the Association was not trying to gain access to a particular statutory regime. The Association had shown that, in the absence of another statutory regime, the exclusion of its members from the L.C. regime substantially interfered with their freedom of association. [ 76 ] In this regard, the administrative judge found from the evidence that Casino de Montréal was not giving full effect to the Association's recognition as the OSs' representative association. For example, Casino de Montréal had established a joint work schedule committee to which non‑members were invited, which made membership in the Association less useful. The Association was not asked to participate in the work on the pension plan, group insurance or the guide on conditions of employment. Similarly, Casino de Montréal refused to consider any issue related to the Memorandum and to [translation] "the question of deduction of dues, the increase in leave for representatives and the inclusion of conditions of employment in the Memorandum" (para. 400). Decision makers at various levels failed to respond to some of the Association's requests and hardly provided it with any follow‑up. Casino de Montréal did not undertake to bargain with the Association but only to consult it and, for that matter, such consultation did not always occur. [ 77 ] This infringement of freedom of association was not justified under s. 1 of the Canadian Charter or under s. 9.1 of the Quebec Charter. The objective identified by the government was not pressing and substantial, because it had not been shown that the exclusion of managers arose from the National Labor Relations Act, Pub. L. No. 74‑198, 49 Stat. 449 (1935) (also known as the "Wagner Act"), which had been the inspiration for the L.C. Indeed, the Canada Labour Code, R.S.C. 1985, c. L‑2, and other statutes based on the Wagner model in the rest of Canada permitted the unionization of first‑level managers. [ 78 ] Even if the objective had been pressing and substantial, the means for achieving it were not proportionate. There was no rational connection between the exclusion and the objective identified by the government. The total exclusion of managers was not rationally connected to the concern for maintaining the managers' duty of loyalty, ensuring that there were no conflicts of interest and preventing interference. Finally, the impairment of freedom of association was not minimal because the legislative exclusion was a total one despite the fact that other models, in Quebec as well as in Canada and at the international level, permitted the unionization of first‑level managers. #### B. Quebec Superior Court, 2018 QCCS 4781 (Lamarche J.) [ 79 ] The Superior Court allowed the application for judicial review, quashed the ALT's decision and declared the exclusion in s. 1(l)(1) L.C. to be constitutionally applicable, valid and operative. [ 80 ] The trial judge first found that the standard of correctness applied because the issue was the constitutionality of s. 1(l)(1) L.C. However, the court acknowledged that it owed deference to the ALT's findings of fact. [ 81 ] The Superior Court then held that the Association was seeking positive state action so that its members would be subject to the L.C. regime, and it therefore applied the Dunmore framework, which it called the [translation] "Dunmore test" (para. 82). In its view, the ALT had erred in concluding otherwise. [ 82 ] At the first step of this framework, the Superior Court found that the Association was not seeking access to a particular statutory regime. Rather, it was seeking to [translation] "exercise its right to a process of meaningful collective bargaining" (para. 100). [ 83 ] At the second step of the Dunmore framework, the Superior Court was of the view that the purpose of the legislative exclusion was not to deprive the members of their freedom of association, which included the right to meaningful collective bargaining with respect to their conditions of employment. The exclusion was based on the Wagner model and was intended to [translation] "create a community of interest for non‑managerial employees and to facilitate their unionization while ensuring that the employer is able to trust its managers" (para. 123; see also paras. 124‑30). With regard to the effects of the exclusion, the Superior Court criticized the ALT for having compared the situation of the Association's OS members to the situation of employees whose rights and obligations were set out in the L.C. That error had led the ALT to conclude that a difference between the L.C.'s protections and the situation of the OSs amounted to substantial interference with their freedom of association. [ 84 ] The Superior Court nevertheless recognized that the freedom of association of the Association's OS members was substantially interfered with in some respects. The evidence showed that the Société unilaterally changed the conditions of employment of the Association's OS members, without consulting it or providing any advance notice. By doing so, the Société undermined the meaningful bargaining process. The evidence also showed that the Société had no real intention of continuing to bargain on certain subjects. However, the ALT had been wrong in attributing responsibility for this interference to the state, as the interference resulted instead from the Société's conduct. The Association's claim therefore failed at the third step of the Dunmore framework. #### C. Quebec Court of Appeal, 2022 QCCA 180 (Gagnon, Hogue and Beaupré JJ.A.) [ 85 ] The Court of Appeal allowed the appeal, set aside the Superior Court's judgment, dismissed the application for judicial review and restored the ALT's decision, although it added a conclusion ordering the suspension, for a period of 12 months from the date of its judgment, of the [translation] "effects of the ALT's declaration regarding the inoperative nature of the exclusion set out in s. [1(l)(1) L.C.]" (para. 194). [ 86 ] The Court of Appeal found that the applicable framework was the one applied in MPAO, which it called the [translation] "substantial interference" test (para. 137). The Court of Appeal characterized the Association's petition not as a claim for positive state action, but rather as a claim not to be subject to the exclusion in s. 1(l)(1) L.C. [ 87 ] The Court of Appeal was of the view that the Superior Court had erred in failing to show deference to the ALT's findings regarding the effects of the legislative exclusion on the OSs. Those findings were within the ALT's specialized expertise and were based on its overall assessment of the evidence; they should have been upheld. As a result, the Court of Appeal concluded that there was substantial interference with the freedom of association of the Association's OS members. [ 88 ] Although the Court of Appeal did not think it necessary to do so given its finding that the Dunmore framework was inapplicable, it expressed its disagreement with the Superior Court's conclusion that the Société and not the state was responsible for the substantial interference. The Société was a subsidiary of Loto‑Québec, which was a state‑owned enterprise, and the total exclusion of first‑level managers from the scope of the L.C. constituted state action. [ 89 ] At the stage of justification of the infringement, the Court of Appeal agreed with the ALT that the minimal impairment requirement was not met, since there were other statutory regimes in force in Canada that were more permissive with respect to the unionization of managers. [ 90 ] Although the ALT had not made a general declaration that the exclusion in s. 1(l)(1) L.C. was of no force or effect, the Court of Appeal nonetheless thought it appropriate to suspend the effects of its own decision restoring the ALT's decision, given the impact that the ALT's decision would have on the organization of collective labour relations for managers in Quebec. --- ### IV. Issues [ 91 ] These appeals raise the following questions: - Did the Court of Appeal err in holding that the Superior Court owed deference to the findings of fact and findings of mixed fact and law made by the ALT in the context of analyzing a constitutional question? - Does the exclusion of managers provided for in s. 1(l)(1) L.C. infringe the freedom of association of the Association's OS members guaranteed by s. 2(d) of the Canadian Charter and s. 3 of the Quebec Charter? If so, is this infringement justified under s. 1 of the Canadian Charter and s. 9.1 of the Quebec Charter? - If s. 1(l)(1) L.C. is declared unconstitutional, should the declaration be suspended and, if so, for how long? --- ### V. Analysis #### A. Applicable Standard of Review [ 92 ] In Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653, our Court established a presumption that the standard of reasonableness applies to the judicial review of an administrative decision maker's decision (paras. 16 and 23‑32). This presumption can be rebutted when the rule of law requires a consistent, determinate and final answer from the courts, which is the case with constitutional questions: > The Constitution — both written and unwritten — dictates the limits of all state action. Legislatures and administrative decision makers are bound by the Constitution and must comply with it. A legislature cannot alter the scope of its own constitutional powers through statute. Nor can it alter the constitutional limits of executive power by delegating authority to an administrative body. In other words, although a legislature may choose what powers it delegates to an administrative body, it cannot delegate powers that it does not constitutionally have. The constitutional authority to act must have determinate, defined and consistent limits, which necessitates the application of the correctness standard. (Vavilov, at para. 56; see also paras. 53 and 55.) [ 93 ] The parties agree that the standard of correctness applies to the findings of law made by the ALT in the context of analyzing the constitutional question before it. Their disagreement concerns the standard that should apply to findings of mixed fact and law and findings of fact made in connection with a constitutional question. [ 94 ] In my view, the standard of correctness applies to the former type of findings. "Mixed" findings are those that determine "whether the facts satisfy the applicable legal tests" (Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322, at para. 38). In this case, determining whether the exclusion from the L.C. regime constitutes substantial interference with the freedom of association of the Association's members is not a simple question of fact. Such an inquiry involves weighing "the constitutional significance" of the findings of fact made on the basis of the members' situation by reference to freedom of association (Westcoast Energy, at para. 39). To some extent, this amounts to defining the constitutional standard of "substantial interference". [ 95 ] The definition of this standard requires a determinate and final answer (Vavilov, at paras. 53 and 55). In Westcoast Energy, cited with approval in Vavilov, at para. 55, our Court noted that no deference is owed in respect of questions of mixed fact and law that arise in connection with a constitutional question because it is important that constitutional questions be answered correctly (paras. 39‑40). --- ### VI. Disposition [ 198 ] [The disposition is set out in the majority reasons.] --- ## Concurring Reasons Rowe J. — ### IV. Conclusion [ 220 ] I believe that my reasons answer the question left open in Toronto (City), and I am left with the conclusion that the Dunmore framework must be maintained to assess positive claims. [ 221 ] While s. 2(d) can require positive actions from the state in order to make the freedom to organize meaningful, claims of this nature must be analyzed under a distinct framework that takes into account the nature of this fundamental freedom, the necessary link to state action, and the separation of powers. --- ### Section 2(d) Framework — Rowe J. #### A. Nature of the Fundamental Freedoms [ 208 ] A freedom, by nature, does not encompass the obligation for the state to facilitate its exercise. For instance, the fact that individuals have the freedom to distribute false news does not mean that the state must in some way facilitate this conduct or pass legislation to prevent private actors from terminating employment on the basis of such conduct in the workplace (Langille and Oliphant, at pp. 267-68). Concluding otherwise would force the state to enact a scheme to actively protect every individual. [ 209 ] I pause here to note that I do not endorse a rigid dichotomy between "freedoms" as being solely negative and "rights" as being solely positive. Such an interpretation would depart from the purposive approach articulated in R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, and under which "a situation might arise in which, in order to make a fundamental freedom meaningful, a posture of restraint would not be enough, and positive governmental action might be required" (Haig, at p. 1039). Accordingly, a "right" can impose negative obligations of non-interference. Similarly, a "freedom" can impose positive obligations in order to make the exercise of the freedom meaningful. This has been recognized by this Court in Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, at paras. 67-72 (see also Haig, at p. 1039). [ 210 ] However, the fact that a freedom has both positive and negative dimensions does not mean that these dimensions are irrelevant and should not be distinguished. The distinction between these dimensions remains important when considering the nature of the obligation that the claim seeks to impose upon the state (Toronto (City), at para. 20; see also B. Langille"Why the Right-Freedom Distinction Matters to Labour Lawyers — And to All Canadians" (2011), 34 Dal. L.J. 143, at p. 157; Dunmore, at para. 108, per L'Heureux-Dubé J., concurring). [ 211 ] A freedom does not always give rise to an obligation for the state to facilitate its exercise. This is why a higher burden forces the claimants to demonstrate why, in their circumstances, a posture of restraint from the state is not enough. In effect, any positive obligation requiring the state to protect the freedom should arise only where the claimant would otherwise be substantially incapable of exercising the freedom (Langille and Oliphant, at p. 291; see also Dunmore, at para. 23). #### B. Absence of Direct State Action [ 212 ] The infringement giving rise to a negative claim under s. 2(d) is fundamentally different than the infringement leading to a positive claim. In the case of a negative claim, the state itself attacks the freedom by passing a law having the purpose or effect of interfering with individuals exercising their freedom. In contrast, in the case of a positive claim, the state did not infringe the freedom by any direct action but has only failed to adequately protect the freedom from infringement by third parties, notably private actors. [ 213 ] Given this difference, the standard to analyze positive claims should not be the same as for negative claims. For negative claims, the claimant only has to establish that the statute or the state action in cause constitutes a "substantial interference" with the freedom of association (Health Services, at para. 90). By applying the same standard for positive claims, every time a private employer would substantially interfere with the freedom of association of its employees, the employees could sue the government for not passing legislation to stop employers from interfering with their freedom to associate (Langille, at p. 157; see also McKinney v. University of Guelph, [1990] 3 S.C.R. 229, at pp. 261-63). The state would be forced to justify, under s. 1, any decision not to provide protection to a group or not to extend a protection to every individual. [ 214 ] The Dunmore framework was specifically designed to take into account the absence of direct state action giving rise to the infringement in the case of positive claims. In Dunmore, agricultural workers challenged the constitutionality of their exclusion from Ontario's labour relations regime. There was clear evidence of infringement of the freedom of association of the agricultural workers, but these violations were caused by private employers, not by any direct state action. The agricultural workers were legally free to associate. No government law or state action prevented them from combining in groups and making collective representations to an employer or from refusing to work without an acceptable contract, and no state action as such had the effect of impeding association. What precluded association was the fact that the private employers were free to refuse to bargain with them, to not hire unionized employees or to terminate striking workers in the absence of legislation protecting these activities, as they are protected for the majority of unionized workers in Ontario. [ 215 ] The majority in Dunmore recognized that there is no "constitutional right to protective legislation per se", but that "legislation that is underinclusive may, in unique contexts, substantially impact the exercise of a constitutional freedom" (para. 22 (emphasis in original)). The three-step framework established in Dunmore was designed in order to identify those exceptional circumstances where legislative intervention is required despite the absence of direct state action. [ 216 ] Under this framework, it remains part of the test to demonstrate that the freedom of association has been substantially impeded by the exclusion from the protective legislation. However, the claimant also has the burden of demonstrating that the claim is grounded in fundamental Charter freedoms rather than in access to a particular statutory regime and, more importantly, that the state can be held accountable in some ways for the inability to exercise these fundamental freedoms. The contribution of private actors to a violation is part of the factual context in which the review takes place but cannot in itself justify the imposition of a positive obligation on the state. Thus, this framework is particularly important in order to distinguish cases where the intervention of the state is warranted. Even where a claimant can establish that their freedom to organize has been substantially impeded, it is still incumbent on them to link this impediment to the state, not just to private action (Dunmore, at paras. 26 and 43; see also Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, at para. 78, per LeBel J., dissenting; Brun, Tremblay and Brouillet, at para. XII-5.40). [ 217 ] This link to the state can be established by the demonstration of the vulnerability of the claimant group. In Dunmore, the agricultural workers established that they were substantially incapable of exercising their constitutional freedom to associate without the assistance of the state. The conditions of the agricultural workers were reinforced by their exclusion from the labour relations scheme. They established that their exclusion, essentially, placed a chilling effect on any non-statutory union activity. In the absence of a framework focused on the state's responsibility, s. 2(d) could be misused to further the position of the relatively privileged (Dunmore, at paras. 39 and 43-45). #### C. Separation of Powers [ 218 ] Positive claims also raise unique concerns about the separation of powers. Choices about who to grant further protection to, and the mechanisms by which this is given effect, rest with the legislature (Toronto (City), at para. 19). As emphasized by the majority in Dunmore"by 'dipping its toe in the water', and affording or enhancing the rights of some", the government is not obliged to "go all the way and ensure the enjoyment of rights by all" (para. 22, quoting Dunmore v. Ontario (Attorney General) (1997), 155 D.L.R. (4th) 193 (Ont. C.J. (Gen. Div.)), at p. 207). The fact that a regime aims to safeguard a fundamental freedom does not mean, in itself, that exclusion from that regime automatically gives rise to a Charter violation (para. 39). [ 219 ] It is not the proper role of the Court to confer constitutional status on a particular statutory regime. Labour relations regimes are a policy choice, designed to promote labour peace and bring certainty to the employment relationship, but they are not a constitutional imperative (see Dunmore, at para. 24; Haig, at p. 1041). While the Court may strike down legislation considered incompatible with a Charter provision, the "Court is not in a position to enact such detailed legislation, nor to confer constitutional status on a particular statutory regime" (Dunmore, at para. 66; see also Langille and Oliphant, at p. 271). As the majority of this Court underlined in Toronto (City)"choices about whether and how to design a statutory or regulatory platform are best left to the elected orders of the state" (para. 19; see also McKinney, at p. 263). Thus, the elevated evidentiary threshold provided in the Dunmore framework ensures that the adjudication of positive claims respects the separation of powers. --- ## Disposition Appeals allowed with costs. --- ## Solicitors Solicitors for Société des casinos du Québec inc.: Loranger Marcoux, Montréal. Solicitors for the Attorney General of Quebec: Bernard, Roy (Justice‑Québec), Montréal; Direction du droit constitutionnel et autochtone, Ministère de la justice, Québec. Solicitors for the respondent: Poudrier Bradet, Québec. Solicitor for the intervener the Attorney General of Canada: Department of Justice Canada — National Litigation Sector, Toronto. Solicitor for the intervener the Attorney General of Ontario: Attorney General of Ontario — Constitutional Law Branch, Toronto. Solicitor for the intervener the Attorney General of Alberta: Alberta Justice — Constitutional and Aboriginal Law, Edmonton. Solicitors for the intervener the Administrative Labour Tribunal: Fitzback Charbonneau, Québec. Solicitors for the intervener the Canadian Association of Counsel to Employers: McCarthy Tétrault, Toronto. Solicitors for the intervener the National Police Commissioned Officers Professional Association: Nelligan O'Brien Payne, Ottawa. Solicitors for the intervener the Canadian Labour Congress: Goldblatt Partners, Toronto. Solicitors for the interveners the Ontario Principals' Council, the Catholic Principals' Council of Ontario, Association des directions et des directions adjointes des écoles franco‑ontariennes and the Directors Guild of Canada – Ontario: Jones Pearce, Toronto. Solicitors for the intervener the Canadian Lawyers for International Human Rights: Ryder Wright Holmes Bryden Nam, Toronto; Canadian Lawyers for International Human Rights, Toronto. Solicitors for the intervener the Public Service Alliance of Canada: RavenLaw, Ottawa. Solicitors for the intervener the Canadian Civil Liberties Association: Paliare Roland Rosenberg Rothstein, Toronto. Solicitors for the intervener Syndicat professionnel des ingénieurs d'Hydro‑Québec inc.: Rivest Schmidt, Montréal. Solicitors for the interveners Association des cadres des collèges du Québec, Association des cadres municipaux de Montréal, Association des conseillers en gestion des ressources humaines du gouvernement du Québec, Association des cadres scolaires du Grand Montréal, Association des cadres supérieurs de la santé et des services sociaux, Association des directeurs et directrices de succursale de la Société des alcools du Québec, Association professionnelle des cadres de premier niveau d'Hydro‑Québec, Association québécoise des cadres scolaires, Association québécoise du personnel de direction des écoles and Fédération québécoise des directions d'établissement d'enseignement: Melançon Marceau Grenier Cohen, Québec. --- ## Appendix — Relevant Constitutional and Statutory Provisions ### Canadian Charter of Rights and Freedoms Rights and freedoms in Canada 1 The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Fundamental freedoms 2 Everyone has the following fundamental freedoms: (a) freedom of conscience and religion; (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; (c) freedom of peaceful assembly; and (d) freedom of association. Enforcement of guaranteed rights and freedoms 24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances. --- ### Charter of human rights and freedoms, CQLR, c. C‑12 3. Every person is the possessor of the fundamental freedoms, including freedom of conscience, freedom of religion, freedom of opinion, freedom of expression, freedom of peaceful assembly and freedom of association. 49. Any unlawful interference with any right or freedom recognized by this Charter entitles the victim to obtain the cessation of such interference and compensation for the moral or material prejudice resulting therefrom. In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to punitive damages. 52. No provision of any Act, even subsequent to the Charter, may derogate from sections 1 to 38, except so far as provided by those sections, unless such Act expressly states that it applies despite the Charter. --- ### Labour Code, CQLR, c. C‑27 1. In this Code, unless the context requires otherwise, the following expressions mean: (l) "employee": a person who works for an employer and for remuneration, but the word does not include: (1) a person who, in the opinion of the Tribunal, is employed as manager, superintendent, foreman or representative of the employer in his relations with his employees; 12. No employer, or person acting for an employer or an association of employers, shall in any manner seek to dominate, hinder or finance the formation or the activities of any association of employees, or to participate therein. No association of employees, or person acting on behalf of any such organization, shall belong to an association of employers or seek to dominate, hinder or finance the formation or activities of any such association, or to participate therein. --- Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports. [^1]: Jamal J.'s reasons are written on behalf of Karakatsanis, Kasirer, Jamal and O'Bonsawin JJ. (the majority on the result). Wagner C.J. and Côté J. concur in the result but for different reasons. Rowe J. also concurs. [^2]: The Commission des relations du travail was replaced by the Administrative Labour Tribunal (ALT) pursuant to the Act to establish the Administrative Labour Tribunal, CQLR, c. T-15.1.