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JUSTICE REPORTER

One faction of the Supreme Court of Canada scolded another yesterday, saying it let a legal technicality get in the way of justice for a group of Quebec Wal-Mart workers who lost their jobs after organizing a union.

A 6-3 majority concluded that the workers had chosen the wrong labour law provision to anchor allegations of union-busting against the giant retailer in their challenge of its right to close the store in Jonquière, Que., where they had worked after they formed a union.

However, a judge who has forged a reputation as pro-labour - Madam Justice Rosalie Abella - accused the majority of allowing an overly technical interpretation of the law to thwart scrutiny of Wal-Mart's behaviour.

On behalf of Mr. Justice Louis LeBel and Mr. Justice Thomas Cromwell, she called the majority decision "a marked and arbitrary departure from the philosophical underpinnings, objectives and general scope of the labour code."

Labour leaders agreed with the minority yesterday, saying the decision had let Wal-Mart off the hook.

"With the highest respect for the Supreme Court, we are disappointed by the decision to allow Wal-Mart to squeeze by on a technicality," said Wayne Hanley, national president of United Food and Commercial Workers of Canada. "But the workers at the Jonquière store know in their hearts why Wal-Mart shut their store," he said. "So do most Canadians. So does Wal-Mart."

Steven Barrett, a veteran Toronto labour lawyer, called the ruling, "a short-term, narrow, technical victory for Wal-Mart, and a disappointing result for the Quebec workers. ... The union just proceeded under the wrong provision of the code." Mr. Barrett said the irritation of the minority judges was understandable. "They viewed it as a very technical interpretation by the majority that was out of step not only with law in the rest of country, but with the language and purpose of Quebec's labour code."

The company opened its Jonquière store in 2001. The workers formed a union, but could not reach a collective agreement with the company. On Feb. 9, 2005, the Minister of Labour referred the matter to arbitration and notified the parties of the referral. That same day, Wal-Mart informed employees of its decision to close.

Two workers alleged that Wal-Mart violated their rights to organize a collective bargaining unit under both the Canadian Charter of Rights and Freedoms and Quebec's labour code. In response, Wal-Mart said that it closed the store because of financial pressures.

The technicality at the heart of the controversy - known as a reverse onus provision - requires employers to establish that they did not discriminate against workers for anti-union reasons.

Yesterday's sharp legal divide was unusual on a court where unanimity is a hallmark. Writing for the majority, Mr. Justice Ian Binnie said that applying the labour code provision in the case, "would significantly alter the balance between employers and employees intended by the Quebec legislature."

Judge Binnie said that in Quebec, the reverse onus provision does not apply to store closings.

One Wal-Mart outlet in Quebec has won a collective agreement since the Jonquière case, and several others have been granted union certification.

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