Quebec’s approach to legislation impacting remote workers’ rights holds lessons for the rest of Canada, says Geneviève Beaudin, a Montreal-based partner in Lavery de Billy LLP’s labour and employment law group.
“There have been five cases in Quebec that focus on the meaning of ‘establishment’ [in a remote working arrangement] which is central to labour and employment law throughout Canada on several significant issues, including the applicability of employment standards and labour relations legislation.”
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However, this isn’t to say Quebec law is entirely clear about the extent of provincial jurisdiction over remote employees. “What’s not certain from two previous decisions of the Court of Appeal is whether ‘establishment’ boundaries include only the company’s physical premises or whether they extend to the places where employees ‘usually provide their functions.’”
The Quebec Court of Appeal looks poised to decide the question: it has agreed to hear three cases, likely sometime this year, which may well decide the controversy.
The first case involves a woman who worked remotely in Quebec for a U.S. company that has no physical presence in the province. When the employer terminated her, it refused to grant her the statutory benefits available under Quebec’s labour standards legislation, arguing that the company had no establishment in Quebec.
The employer succeeded, as both the Tribunal administratif du travail, a specialized tribunal that deals with labour and employment matters, and the Superior Court decided that the employee’s home was not an establishment. Assuming jurisdiction over a company with no physical presence in Quebec, the Superior Court reasoned, would inappropriately give extra-territorial effect to provincial labour standards legislation.
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In another case, the issue is whether an employer violated anti-scab laws by allowing a remote employee to continue working during a lockout. The tribunal decided the employer’s establishment included the remote worker’s home. However, the Superior Court overturned the ruling, concluding that the company hadn’t violated the law because the remote employee didn’t work in the locked-out establishment.
“In this case, the court dismissed the concept of a ‘deployed establishment,’ limiting its meaning” to what is within the locked doors of the employer’s premises,” Beaudin says.
Within a few days of this decision, however, a different Superior Court judge arrived at the opposite conclusion in another anti-scab case. “Here, the court ruled that a remote worker’s location was part of the company’s establishment and, therefore, the work of a striking bargaining unit that was performed remotely violated anti-scab laws.”
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A fourth case dealing with related issues is under appeal, to be heard by the same panel. This case centres around Brandt Tractor, a Canadian forest equipment manufacturing business that maintained several places of business in Quebec, one of which was in Saguenay, Que., where its workers were unionized. The bargaining unit includes two road technicians who repaired machinery in the nearby forests.
When the Saguenay workers went on strike, the company used workers from its other establishments as well as third-party contractors to do the work of the technicians. The union claimed this practice was illegal because the technicians were part of the unionized establishment although they didn’t work there and received their assignments by e-mail — effectively making them remote workers.
The Superior Court decided in the company’s favour, concluding the establishment didn’t embrace work that wasn’t normally done on the company’s physical premises. “Instead of broadening establishment, the court in this case essentially narrowed it,” says Beaudin.
Regardless of the conclusions reached by the Court of Appeal, employers with employees in remote working arrangements will doubtlessly continue to face challenges regarding these employees’ rights.
“For example, the issues around remote workers certainly raise the possibility of conflicting laws governing these individuals,” says Melanie McNaught, a partner at Filion Wakely Thorup Angeletti LLP.
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