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Substantial interference

The SCC looks at collective bargaining for casino managers. Plus the trial of Umar Zameer and a successful Indigenous title claim.

We are so back. Apologies for the recent hiatus. The good news is that I’ve been overwhelmed by the number of impressive students who want to help make this newsletter better. (I have a newfound respect for hiring managers.)

— Dylan Gibbs


5-min read

  • Excluding low-level managers from labour legislation

  • Charging first-degree murder with a shaky foundation

  • Awarding Indigenous title for the first time in a while


Pit bosses don’t need government help to unionize

Poker table at a casino

The Supreme Court had bad news for a group of casino workers last Friday, holding that Quebec didn’t violate the Charter by excluding the workers from its labour regime.

Judicial review. Charter frameworks. This one has it all.

What happened: Quebec’s Labour Code differentiates between managers and employees (like many Canadian labour statutes). Employees get statutory protections for collective bargaining. Managers don’t. And an association of low-level casino managers wanted to change that.

  • The Association already has some collective bargaining power through an agreement with the Société des casinos du Québec. But the Société hasn’t taken the agreement seriously enough.

  • So the Association asked Quebec’s Administrative Labour Tribunal for statutory protection. It argued that excluding casino managers from the Labour Code violates their freedom of association.

The tribunal found a violation. The Association's existing agreement wasn’t good enough, because it didn’t offer the same perks as the statutory regime (like speedy access to the tribunal and a protected right to strike). The Société’s disregard for the agreement didn’t help either.

But the Supreme Court held the opposite. Quebec’s Labour Code exclusion doesn’t “substantially interfere” with the casino managers’ freedom of association, because their existing agreement shows they’ve done just fine on their own. The existing agreement isn’t as strong as the Labour Code, but that’s okay. And the Société may not be respecting the agreement, but the Association can sue the Société for that.

  • The Association can’t force the government to offer legislative protection without showing that other remedies are inadequate and that the government is responsible for the casino managers’ lack of bargaining power.

An important standard of review clarification: The Court has given mixed signals in the past about how to judicially review findings of mixed fact and law connected to constitutional questions. But we now have a clear answer:

[Courts don’t owe deference] 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.

Para 95 (endorsed by the majority at para 45)

And a short majority opinion? Don’t get your hopes up. Justice Jamal’s 58-paragraph majority judgment reads more like a rebuttal than a standalone decision. And that makes Justice Côté’s 140-paragraph concurrence fairly essential reading. (From the looks of it, Justice Côté wrote her reasons first but didn’t get buy-in from her colleagues).

The reason for the split was a disagreement about how to handle positive freedom of association claims (the kind that force the government to take action). In other contexts (like freedom of expression) courts treat positive claims differently than negative claims. But Justice Jamal said that’s not true for freedom of association:

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 [(so-called “positive rights” claims)], 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



😔 The allegation that Umar Zameer murdered Toronto police Detective Constable Jeffrey Northrup was so thin that Justice Anne Molloy apologized to Zameer after a jury acquitted him on Sunday. If you haven’t been following, expert and video evidence contradicted the three police witnesses who said they saw Zameer drive into Northrup while Northrup was standing and waving in front of Zameer’s vehicle. Before jury members deliberated, Justice Molloy told them to consider whether the police officers colluded.

  • The Toronto Police Service has now asked the Ontario Provincial Police to independently review how the case was handled.

  • And everyone is still baffled by the tweet that Doug Ford posted after Zameer’s bail hearing:

🏞️ The Nuchatlaht First Nation won title to a portion of Nootka Island in BC. It’s the first Aboriginal title claim to see even partial success since Tsilhqot'in Nation’s 2014 victory at the Supreme Court of Canada.

🧑‍⚖️ Justice Minister Arif Virani announced judicial appointments in Nova Scotia and Saskatchewan.

🤐 Brad Johns was forced to resign as Nova Scotia’s justice minister after saying the province has bigger fish to fry than domestic violence. Barb Adams took over the vacant post yesterday, leaving her former role as the province’s Seniors and Long-Term Care Minister.

♻️ The federal government launched a new plastic registry that requires producers to disclose how much plastic they put in the Canadian market.

🥀 Eli Lilly wanted a stiff reversal from the Federal Court of Appeal but that’s not how things played out. The Court upheld a decision invalidating the Cialis patent owned by Eli Lilly’s subsidiary.

Beyond the border

👀 Grindr is facing a privacy lawsuit for allegedly letting advertising companies access sensitive user data, like HIV status.

Dylan Gibbs

That’s all for today. Govern yourself accordingly.

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