Thibault, Sansfaçon, Baudouin
Appeals from a judgment of the Superior Court allowing in part a class action. The principal appeal is allowed in part and the incidental appeal is dismissed.
Further to disruptions and closures of construction sites in Quebec in October 2011, a class action was instituted against the appellant. At issue was whether the appellant was liable for the damage caused to members of two classes – the workers who were deprived of work and wages, and the employers who paid wages to their employees without obtaining the performance of any work in exchange.
The trial judge found that the workers who left the construction sites, thereby provoking their closure, engaged in an unlawful strike. He also found that the appellant had committed a fault by failing to take the necessary measures to put an end to the unlawful strike as quickly as possible. He condemned the appellant to pay to the members of the classes identified in the authorization judgment $9,891,715, representing [translation] “the consequences of the disruption of 50% of the industry on October 25, 2011”, and ordered the collective recovery of that amount. The judge also condemned the appellant to pay damages for loss of profits and additional costs to the employer and moral damages to the workers. He ordered the individual recovery of those damages.
Relying in particular on the definition of “strike” in section 1(g) of the Labour Code (CQLR, c. C-27), the judge found that a strike has four constitutive elements: (1) the cessation of work; (2) which is concerted; (3) by a group of employees; (4) for the purpose of asserting an occupational claim. He considered the extent of the strike movement, the timing of the pressure tactic against Bill 33, An Act to eliminate union placement and improve the operation of the construction industry (S.Q. 2011, c. 30), the number of construction sites concerned, and the workers’ membership in industry unions to conclude that there was a movement or collective intention. The appellant’s argument that an [translation] “occupational claim” can only be one that seeks to compel an [translation] “employer” to accept union demands is too restrictive, particularly given the State’s active participation in the labour relations of this sector of activity. The judge therefore made no reviewable error in concluding that there was an unlawful strike. That activity was not protected by the right to freedom of expression, which does not authorize a worker to strike to express opposition to a bill, unless the work stoppage is permitted under the relevant statutory provisions.
In this case, the appellant is liable for the lost wages of the workers who were forced to leave the construction sites, who were refused access to them, and who were unlawfully prevented from performing their work on October 25. However, it need not reimburse the wages of the workers who participated in the unlawful strike. Similarly, the appellant is liable for the damage suffered by the employers, who paid their workers’ wages on October 25 without obtaining the performance of the work to which they were entitled in exchange. Because the evidence does not establish the total amount of the members’ claims in a sufficiently precise manner, individual recovery of the employees’ compensatory damages is ordered.
Moreover, the evidence does not establish that all the worker class members suffered moral injury from a feeling of powerlessness and humiliation that they all experienced, as required by the case law. They are therefore not entitled to moral damages.
Last, the appellant did commit a fault of omission, but that fault did not violate the group members’ rights guaranteed by the Charter of human rights and freedoms (CQLR, c. C-12) so as to warrant a condemnation for punitive damages.
Text of the decision: http://citoyens.soquij.qc.ca