Dutil, Mainville, Moore

Appeal from a judgment of the Superior Court dismissing an application for a declaratory judgment. Allowed.

The respondent collects the recyclable materials of its clients pursuant to contracts providing that it becomes the owner of such materials as soon as they are loaded into its vehicle. The trial judge dismissed the application of the appellant parity committee seeking recognition that the work of the respondent’s employees assigned to the collection and transport of recyclable materials is subject to the Decree respecting solid waste removal in the Montréal region (CQLR, c. D-2, r. 5). The judge found that because the decree does not define the term [translation] “employer” based on the criterion of the [translation] “nature” or [translation] “type” of work performed by the employees, the criterion of the nature of the work recognized by the case law carried less weight in this case. According to the judge, the terms “for others” in section 2.02 of the decree and “its … waste” in section 2.03(c), were at the heart of the debate. The judge found that because the respondent purchases the materials and is therefore the owner, it does not act for others, but indeed for itself, to sustain its own activities.

The Supreme Court of Canada recognized in 1944 that the application of the decree must be based on the criterion of the nature of the work performed by the employees (Comité Paritaire de l'industrie de l'Imprimerie de Montréal et du District v. Dominion Blank Book Co. (S.C. Can., 1944-05-15), [1944] SCR 213). The appellant is not wrong to fault the judge for disregarding this criterion. Although the decree does not define the term [translation] “employer”, the Act respecting collective agreement decrees (CQLR, c. D-2) does and provides that a “professional employer” is an employer “who has in his employ one or more employees covered by the scope of application of a decree” (s. 1(g)). The wording of the Act was amended during the 1996 reform to refer to the “scope determined in such decree” rather than to only the [translation] “nature” or [translation] “type” of work. That does not mean that the nature of the work – in this case the collection, transport, and unloading of materials – has been disregarded in favour of the employer’s economic activity as the determinative factor, but simply that the other limits provided in the scope of application of the decree must be examined.

According to the parties, the criterion to determine whether the collection, transport, or unloading of materials is done “for others” within the meaning of section 2.02 of the decree hinges on the question of who benefits from taking charge of the materials. They differ, however, on when this criterion must be assessed. The Court accepts the appellant’s interpretation, according to which the assessment takes place when the party that generates the materials, or that wishes to dispose of them, benefits from the collection, transport, or unloading.

The respondent pursues its activities in the recycling industry, which is the sector of activity covered by the decree. In addition, as the definition of “unloading” includes the treatment or valorization of recyclable materials, applying the decree to the respondent cannot be considered a horizontal extension. Last, and especially, submitting the determination of the application of the decree to the contractual engineering – in this case, the transfer of ownership of the materials – would allow the respondent to unilaterally frustrate the decree at its whim. Such a result would be inconsistent with the legislative objective, which is to protect vulnerable employees.

The collection, transport, or unloading of solid waste is done “for others” as soon as an enterprise offers to take charge of waste produced by or in the possession of its client who wants to dispose of it.

Legislation interpreted: section 2.02 of the Decree respecting solid waste removal in the Montréal region

Text of the decision: http://citoyens.soquij.qc.ca