I.A.T.S.E., Stage Local 56 v. Société de la Place des Arts de Montréal, 2004 SCC 2, [2004] 1 SCR 43

I.A.T.S.E., Stage Local 56 v. Société de la Place des Arts de Montréal, [2004] 1 S.C.R. 43, 2004 SCC 2

Société de la Place des Arts de Montréal                                                       Appellant

v.

International Alliance of Theatrical Stage Employees, Moving

Picture Technicians, Artists and Allied Crafts of the United States,

its Territories and Canada, Stage Local 56                                                 Respondent

and

Compagnie Jean Duceppe, Orchestre symphonique de Montréal,

Les Grands Ballets Canadiens de Montréal, L’Opéra de Montréal

and Festival International de Jazz de Montréal Inc.                                 Mis en cause

Indexed as:  I.A.T.S.E., Stage Local 56 v. Société de la Place des Arts de Montréal

Neutral citation:  2004 SCC 2.

File No.:  28952.

2003:  June 12; 2004:  January 29.

Present:  McLachlin C.J. and Gonthier, Major, Bastarache, Arbour, LeBel and Deschamps JJ.

on appeal from the court of appeal for quebec

Labour relations — Strike — Anti-strike breaking provision — Injunction — Employer ceasing to provide services performed by striking stage technicians — Tenants of performance halls becoming responsible for technical services — Whether employer infringed s. 109.1(b) of Labour Code, which prohibits employer from utilizing services of person employed by another employer to discharge duties of employees on strike — Labour Code, R.S.Q., c. C-27, s. 109.1(b).

The collective agreement between the Société de la Place des Arts de Montréal (“SPA”) and the respondent union provided that the SPA would only employ union stage technicians.  Likewise, the leases between the SPA and the tenants stipulated that the tenants would only use union technicians.  Following a protracted labour dispute with its technicians, the SPA decided to quit providing technical services and amended the leases accordingly, leaving the tenants to hire their own stage technicians from that point forward.  The union brought proceedings against the SPA for infringement of s. 109.1(b) of the Labour Code, which prohibits every employer from utilizing the services of a person employed by another employer to discharge the duties of an employee who is a member of the bargaining unit on strike.  The SPA was fined by the Labour Tribunal.  That decision was upheld on appeal.  The SPA paid the fine but did not amend its conduct.  The union therefore sought an injunction to prevent the SPA from continuing to infringe s. 109.1(b) of the Code.  The Superior Court granted the injunction, which was upheld by the Court of Appea1 in a majority decision.

Held:  The appeal should be allowed.  There was no violation of s. 109.1(b) of the Labour Code and the injunction should be vacated.

The Superior Court was not sitting in judicial or appellate review of the Labour Tribunal’s decision, but rather as a court of first instance hearing an injunction application, which falls within its exclusive jurisdiction.  Therefore no deference had to be shown to the Labour Tribunal and it was not an abuse of process for the SPA to defend itself by denying that it had breached the Code.  The Superior Court judge was therefore correct to determine for himself, independently of the Labour Tribunal’s finding, whether the SPA was in violation of s. 109.1(b) of the Code.  This Court must also determine, on the correctness standard applicable on appeal from all legal determinations by lower courts, whether the SPA has violated the Code.

The courts below gave too broad a meaning to the concept of “utilizing” in s. 109.1(b) of the Code.  The interpretation of s. 109.1(b) should bear in mind that the SPA and its tenants are distinct legal entities, and that the SPA has the right under Quebec law to go partially or completely out of business.  While the SPA benefits indirectly from the services of stage technicians employed by the tenants, it does not utilize the services of persons employed by another employer contrary to s. 109.1(b).  “To utilize” involves a positive act by the user.  One who merely passively benefits from a given state of affairs does not utilize anything.  Several factors point in this case to the conclusion that the SPA had genuinely abandoned the technical services side of its business to its tenants  and that its decision to close was not merely a strikebreaking ruse.  Where an employer genuinely goes out of business, its motive for doing so is not subject to review under s. 109.1(b).  The union has not sought to invoke s. 45 of the Code against the tenants and there is nothing in this provision that prevents the SPA from restructuring its business and abandoning the provision of technical services to its tenants.

Cases Cited

Approved:  City Buick Pontiac (Montréal) Inc. v. Roy, [1981] T.T. 22; distinguished:  Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; referred to:  Côté v. Morgan (1881), 7 S.C.R. 1; Trudel v. Clairol Inc. of Canada, [1975] 2 S.C.R. 236; Société de développement de la Baie James v. Kanatewat, [1975] C.A. 166; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33; Syndicat des techniciens d’Hydro-Québec, section locale 957 (S.C.F.P.‑F.T.Q.) v. Hydro-Québec, D.T.E. 92T-90; Caya v. 1641-9749 Québec Inc., D.T.E. 85T-242; Syndicat des employés de salaisons de Princeville Inc. v. Coopérative fédérée de Québec (succursale de Princeville), [1976] R.D.T. 89.

Statutes and Regulations Cited

Act respecting the Société de la Place des Arts de Montréal, R.S.Q., c. S-11.03, s. 20 [am. 1999, c. 40, s. 280; am. 2000, c. 7, s. 4].

Act respecting the Société de la Place des Arts de Montréal, S.Q. 1982, c. 9, s. 20.

Code of Civil Procedure, R.S.Q., c. C-25, arts. 751 et seq.

Labour Code, R.S.Q., c. C-27, ss. 45, 59, 109.1(b).

Authors Cited

Concise Oxford Dictionary of Current English, 9th ed.  Oxford:  Clarendon Press, 1995, “utilize”, “use”.

Gagnon, Robert P.  Le droit du travail du Québec:  pratiques et théories, 4^e éd.  Cowansville, Qué.:  Yvon Blais, 1999.

Grand Robert de la langue française, 2^e éd.  Paris:  Le Robert, 2001, “utiliser”.

APPEAL from a judgment of the Quebec Court of Appeal, [2001] Q.J. No. 4705 (QL), affirming a decision of the Superior Court, [2001] R.J.D.T. 607, [2001] Q.J. No. 265 (QL).  Appeal allowed.

Robert Bonhomme, Louis Leclerc and Richard Gaudreault, for the appellant.

Michel Morissette, for the respondent.

English version of the judgment of the Court delivered by

1                                   Gonthier J. — Following a protracted labour dispute with certain unionized employees, the appellant, Société de la Place des Arts de Montréal (“SPA”), quit providing technical services to its tenants.  Henceforth, the tenants would provide these services for themselves.  The respondent, the International Alliance of Theatrical Stage Employees, Moving Picture Technicians, Artists and Allied Crafts of the United States, its Territories and Canada, Stage Local 56 (“Union”), brought proceedings against the SPA for infringement of the Labour Code, R.S.Q., c. C-27 (“Code”). The Union was successful before the Quebec Labour Tribunal. The Tribunal’s decision was upheld on appeal.

2                                   The SPA persisted in its previous conduct.  The Union therefore sought an injunction in Superior Court to prevent the SPA from continuing to violate (as the Union saw it) the Code.  The Superior Court granted the injunction ([2001] R.J.D.T. 607) and was upheld by the Court of Appeal for Quebec ([2001] Q.J. No. 4705 (QL)). The case before us is an appeal from that decision.  For the reasons that follow I find that there was no violation of the Code and that the injunction should be vacated.  I would allow the appeal.

I.     Facts

3                                   The appellant, the SPA, was created by Act of the National Assembly.  The SPA’s original legislation described its purposes as “to manage the Place des Arts de Montréal and to present, stage and produce performances”:  Act respecting the Société de la Place des Arts de Montréal, S.Q. 1982, c. 9, s. 20.  However, for some time now the SPA has withdrawn from the production of performances.  The SPA’s current legislation more accurately describes its objects and activities:

20.  The objects of the Société are to operate a business for the diffusion of the performing arts, and to administer the Place des Arts de Montréal and any other establishment whose management is entrusted to it by the Government.

The activities of the Société shall be conducted, more specifically, so as to provide a residence for major artistic organizations, improve access to the various types of performing arts, and promote arts and culture in Québec.

(An Act respecting the Société de la Place des Arts de Montréal, R.S.Q., c. S-11.03)

4                                   The respondent Union is an accredited union representing all SPA salaried stage technicians performing duties related to the handling, installation and repairing of set decor as well as the operation of electric, electronic and mechanical equipment during performances.

5                                   The five mis en cause, the Compagnie Jean Duceppe, L’Opéra de Montréal, Les Grands Ballets Canadiens de Montréal, the Orchestre symphonique de Montréal and the Festival International de Jazz de Montréal Inc. (“Tenants”), are all permanent tenants of the Place des Arts.  Each is bound by a lease that sets out the terms and conditions for renting the SPA’s halls and equipment.  Apart from these permanent tenants, the SPA also hires out its facilities on a temporary basis for single-night or limited-run performances.

6                                   The collective agreement between the SPA and the Union provided that the SPA would only employ stage technicians provided by the Union and that all set - or stage-related work in its halls would be performed by Union technicians.  Likewise, the leases between the SPA and the Tenants provided that the Tenants would only use Union technicians and that they would reimburse the SPA for the salaries payable to them.

7                                   The collective agreement expired on February 28, 1999.  Negotiations for its renewal failed and the Union went on strike on June 22, 1999.  For a few months, the SPA called upon its management staff to perform the services ordinarily provided by Union technicians.  Then, on November 8, 1999, the SPA’s board of directors approved a resolution (“Resolution”) declaring its definitive intent to quit offering and providing stage technician services to its Tenants and to amend the Tenants’ leases accordingly.  The SPA carried out the Resolution and amended the Tenants’ leases, leaving them to hire their own stage technicians from that point forward.

8                                   The Union brought proceedings against the SPA under the Code.  On  March 22, 2000, the SPA was found guilty of contravening s. 109.1(b) of the Code, which prohibits every employer from “utilizing, in the establishment where [a] strike or lock‑out has been declared, the services of a person employed by another employer or the services of another contractor to discharge the duties of an employee who is a member of the bargaining unit on strike or locked out”.  The SPA was fined $500.  This judgment was upheld on appeal to the Superior Court on December 19, 2000 ([2000] Q.J. No. 5794 (QL)). Leave to appeal this judgment was refused by the Court of Appeal on December 28, 2000 ([2000] Q.J. No. 5754 (QL)).

9                                   The SPA paid the fine but did not amend its conduct.  The Union therefore sought an injunction from the Superior Court of Quebec to prohibit the SPA from (a) using the services of stage technicians employed by the Tenants to perform the work of its striking members, and (b) permitting persons other than its management from using its equipment for productions.  In a decision released on January 25, 2001, Normand J. agreed with the Union that the SPA was in violation of s. 109.1(b) of the Code and granted the injunction.  His order was upheld on appeal to the Court of Appeal for Quebec, Mailhot J.A. dissenting.  The SPA now appeals to this Court.

10                               In order to comply with the injunction granted by Normand J., the SPA rescinded the Resolution and came to an agreement with the Union, all the while reserving its right to appeal Normand J.’s order.  For simplicity, I refer to the period between November 8, 1999 and January 25, 2001 — during which time the Resolution was in effect and the Tenants hired their own technicians — as the “Disputed Period”.

II.    Analysis

A.    Alleged Abuse of Process and Standard of Review

11                               As I have explained, two separate adjudicative bodies have held the SPA to be in breach of s. 109.1(b) of the Code: the Labour Tribunal and the Superior Court. The Labour Tribunal came to this conclusion in the course of quasi-criminal proceedings.  The Superior Court came to this same result in response to the Union’s injunction application.

12                               The Union submits that, in defending itself against the allegation that it has violated s. 109.1(b) of the Code, the SPA sought, and continues to seek, to relitigate a matter already decided by the Labour Tribunal.  The Union describes this as circumventing that tribunal, and submits that Normand J., before whom the injunction application was heard in Superior Court, owed deference to the Labour Tribunal’s finding that the SPA broke the law.  In short, the Union alleges that the SPA’s defence is an abuse of process.  In my view, this submission misconceives both the nature of the application before Normand J. and the nature of the ensuing appeals.

13                               When he heard the injunction application, Normand J. was not sitting in judicial or appellate review of the Labour Tribunal.  Rather, he sat as a court of first instance hearing an application that the Labour Tribunal could not have heard, namely an application for injunctive relief under arts. 751 et seq. of the Code of Civil Procedure, R.S.Q., c. C-25.  The power of the Quebec Superior Court to grant injunctions rests on statutory footing.  Yet it is a discretionary power of the sort exercised by common law jurisdictions in equity: Côté v. Morgan (1881), 7 S.C.R. 1; Trudel v. Clairol Inc. of Canada, [1975] 2 S.C.R. 236, at p. 246, per Pigeon J.  In Quebec as elsewhere, it is an exceptional and discretionary form of relief.  The court will not grant an injunction under arts. 751 et seq. simply because the applicant is strictly entitled to one.  The applicant must also demonstrate that the circumstances warrant such a potentially intrusive remedy, and that he is deserving of it. See, e.g., Société de développement de la Baie James v. Kanatewat, [1975] C.A. 166, at p. 183.  The intrusiveness of injunctive relief derives in part from its prospective effect.  Rather than sanctioning a person for past misconduct (as the fine awarded against the SPA by the Labour Tribunal did), an injunction forbids the enjoined person from engaging in future conduct on pain of being found in contempt of court. It is no exaggeration to say that injunctive relief amounts to a judicially imposed restraint on the liberty of the person against whom it is ordered.  In saying this I should not be taken to deny or put in doubt the appropriateness of injunctive relief in proper cases.

14                               In short, an injunction is an extraordinary remedy available in Quebec only from the Superior Court.  In deciding whether to grant the Union’s application, Normand J. was called upon to consider both the availability of injunctive relief as a matter of law and the advisability of granting such an intrusive remedy in the circumstances of the case.  These considerations are within the exclusive province of the Superior Court (subject always to appellate review).  It is therefore quite wrong for the Union to suggest that Normand J. ought to have deferred to the decision of the Labour Tribunal and that the SPA ought not to have defended itself against the Union’s application.  For Normand J. simply to conclude that the Labour Tribunal’s finding was reasonable, and that injunctive relief was therefore available, would be an abnegation of his judicial responsibility.  In effect, Normand J. would be guilty of delegating determination of the legal question before him to a body not empowered for that purpose.  If the National Assembly has declined to grant the Labour Tribunal jurisdiction to grant injunctive relief, that is presumably because it accepts that such relief remain the preserve of the Superior Court.  That court must therefore come to its own conclusions.  This is what Normand J. did.

15                               Just as Normand J. had to determine for himself, independently of the Labour Tribunal’s finding, whether the SPA was in violation of s. 109.1(b) of the Code, the Court of Appeal and now this Court must do the same.  That is precisely what the Court of Appeal did and what this Court will do.  No deference should be shown to the Labour Tribunal in this case.  Our task is to determine, on the correctness standard applicable on appeal from all legal determinations by lower courts (Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33, at para. 8), whether the SPA has indeed violated the Code.  While I consider that Normand J. and the majority of the Court of Appeal erred on this question, they were quite right to reject the approach urged by the Union and decide the matter for themselves.

16                               It is therefore not an abuse of process for the SPA to defend itself in this action by denying that it has breached the Code.  The abuse of process doctrine has recently been considered by this Court in Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, 2003 SCC 63.  Speaking for the majority of the Court, Arbour J. explained (at para. 43):

In all of its applications, the primary focus of the doctrine of abuse of process is the integrity of the adjudicative functions of courts.  Whether it serves to disentitle the Crown from proceeding because of undue delays . . . or whether it prevents a civil party from using the courts for an improper purpose . . . the focus is less on the interest of parties and more on the integrity of judicial decision making as a branch of the administration of justice.

This case is distinguishable from the case before Arbour J., for the relitigation involved here (to the extent that there is any) does not in any way undermine the integrity of the legal system.  On the contrary, it is the Union’s line of reasoning that would cast doubt on the system by requiring Superior Court judges in effect to delegate their decision‑making responsibilities to others.

B.  The SPA’s Technical Services Business

17                               Prior to the Union’s strike, the SPA provided technical services to its Tenants using the Union’s stage technicians.  When the Union went on strike on June 22, 1999, its collective agreement with the SPA terminated.  This was the effect of clause 20.01 of the agreement and s. 59 of the Code. Released from this obligation, the SPA’s directors approved the Resolution and carried through with it, leaving the Tenants responsible for hiring their own stage technicians.

18                               The Union submits that this Court should characterize the state of affairs prevailing at the Place des Arts during the Disputed Period in a holistic manner.  The Union relies on U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, and other cases arising from s. 45 of the Code, which have held that an undertaking must be understood “as a whole” and “not solely in terms of the duties performed by employees” (Bibeault, at pp. 1104-5).  This is sometimes described as the “concrete” or “organic” approach to the meaning of “undertaking” in s. 45. See, e.g., R. P. Gagnon, Le droit du travail du Québec : pratiques et théories (4th ed. 1999), at p. 329.

19                               A similar approach was adopted by the courts below. Normand J. put the matter thus (at para. 38):

[translation] S.P.A.’s business is not limited to providing performance halls.  It is a composite whole where, through the performances presented at the Complexe, irrespective of the producer, S.P.A. fulfils its mandate to promote the performing arts and to operate its facilities.  These include props that are indispensable and practicable only with the services of the stage technicians.  If S.P.A. can host the performance, it can carry on its business activities.  Otherwise, paralysis sets in and, in the long term, suffocation. In other words, S.P.A. is linked to its tenants by an umbilical cord.

In the Court of Appeal, Thibault J.A. adopted a similar analysis. In her words (at para. 113):  [translation] “In fact, [SPA] allowed its tenants to hire personnel to offset the inconveniences brought about by the strike and because it was unable to agree on working conditions with the Alliance.”

20                               I must respectfully disagree. In my view, the approach adopted in the courts below effectively conflates the SPA and its Tenants into a single undertaking whose acts are attributable solely to the SPA.  This analysis risks losing sight of the fact that the SPA and its Tenants are distinct legal persons.  The various activities of the SPA and its Tenants are economically interdependent, yet they remain activities engaged in by several juridically distinct entities.  Likewise, the economic risks assumed by these entities, and the benefits gained by them, are attributable to each entity individually according to the tasks each undertakes and the business choices each has made.  While a functional, rather than formalistic, approach is undoubtedly desirable in labour law matters, one must not take this approach so far as to ignore the actual legal and economic structure of complex organizations like the Place des Arts.

21                               Nor do I find Beetz J.’s discussion in Bibeault to be helpful to the Union. In describing businesses as he did, Beetz J. was interpreting s. 45 of the Code, and in particular that section’s use of the term “undertaking”.  Under s. 45, collective agreements and certification proceedings survive the alienation or operation by another of an undertaking, and the new employer is bound by the certification or collective agreement as if it were named therein.  The Union has not sought to invoke s. 45 of the Code against the Tenants, and both the SPA and the Tenants argued in the court below that s. 45 has no application here.  Our concern in this case is not with the meaning of s. 45 but with the more general question of what limits apply to an enterprise’s right to go out of business – a question not before Beetz J. in Bibeault.  In my view, there is nothing in s. 45 or elsewhere in the Code that prevents the SPA from restructuring its business and abandoning the provision of technical services to its Tenants.

22                               The Union also relies on its accreditation certificate (sometimes referred to in English, redundantly, as the “certificate of certification”), noting that it covers any production that takes place at the Place des Arts, whether the technicians involved work for the SPA or its Tenants.  One need only read that certificate to find the error in this submission.  While the Union’s members are described partly in terms of where they work (e.g., on the stage or in the orchestra pit), they are also identified as being in the employ of the SPA.  When the tasks described in the accreditation certificate are executed on behalf of an employer other than the SPA (e.g., the Tenants), the accreditation does not apply.  The exception to this rule, of course, is where s. 45 applies.  I note again that no application under s. 45 has been made.

23                               Counsel for the Union admitted in argument before us that, according to the analysis it proposes, the SPA would never be able to shut down the technical service portion of its business without going out of business entirely.  The SPA’s well-established right to terminate part of its business (which I discuss below) would be wholly defeated by such an approach.

C.  The Meaning of “Utilizing” in Section 109.1(b) of the Code

24                               The Union submits that the SPA is utilizing the services of persons employed by another employer contrary to s. 109.1(b) of the Code.  That section reads:

109.1.  For the duration of a strike declared in accordance with this Code or a lock‑out, every employer is prohibited from

. . .

(b) utilizing, in the establishment where the strike or lock‑out has been declared, the services of a person employed by another employer or the services of another contractor to discharge the duties of an employee who is a member of the bargaining unit on strike or locked out;

25                               The Union argues that the word “utilizing” in s. 109.1(b) of the Code is broad enough to cover the facts of this case, in which the SPA benefits indirectly from the services of stage technicians employed by the Tenants.  “Utilizing” is not defined in the Code.  The Grand Robert de la langue française (2nd ed. 2001) defines “utiliser” as follows:

[translation] 1. Make useful, for a particular purpose (which was not necessarily or specifically envisaged). . . . 2. Employ. . . .

Similarly, the Concise Oxford Dictionary of Current English (9th ed. 1995) defines “utilize” as “make practical use of” and “use”, in its transitive sense, as “cause to act or serve for a purpose; bring into service; avail oneself of”.

26                               It is clear that the SPA no longer actively employed stage technicians during the Disputed Period.  That was the effect of its Resolution to shut down the technical services part of its business.  It is also clear that the SPA indirectly benefited, in the Disputed Period, from the services of stage technicians engaged by the Tenants. Without those technicians the Tenants would have been unable to mount their productions, and without those productions the SPA would not have drawn revenue either from the Tenants themselves (in the form of rent) or from the Tenants’ audiences (who patronize the SPA’s bars and concessions before and after performances and at intermissions).  The same can be said of the performers, authors, composers and directors who use the SPA’s facilities: the SPA indirectly benefits from their work, for without it the SPA would have no reason to exist.  The question is whether such an indirect benefit amounts to utilizing the services of a person employed by another for the purposes of s. 109.1(b) of the Code.

27                               In my view it does not. I agree with the SPA that the dictionary definitions quoted above indicate that to utilize involves a positive act by the user.  The language and context of s. 109.1(b) are consistent with this usage.  She who merely passively benefits from a given state of affairs does not utilize anything.  The SPA cannot be said to be utilizing the services of stage technicians employed by the Tenants within the meaning of s. 109.1(b).  The benefit that the SPA draws from its Tenants’ business operations is not, in my view, what the legislature intended to capture with the word “utilizing” in s. 109.1(b). See, e.g., Syndicat des techniciens d’Hydro-Québec, section locale 957 (S.C.F.P.-F.T.Q.) v. Hydro-Québec, D.T.E. 92T-90 (L.C.).

28                               There is another consideration to bear in mind when interpreting s. 109.1(b), namely the right of enterprises governed by the Code to go out of business, either completely or in part.  This right is clearly established in Quebec law.  It is enjoyed equally by unionized and non-unionized enterprises.  The leading case is City Buick Pontiac (Montréal) Inc. v. Roy, [1981] T.T. 22, at p. 26, in which Judge Lesage made the following observations:

[translation] In our free enterprise system, there is no legislation to oblige an employer to remain in business and to regulate his subjective reasons in this respect . . . .  If an employer, for whatever reason, decides as a result to actually close up shop, the dismissals which follow are the result of ceasing operations, which is a valid economic reason not to hire personnel, even if the cessation is based on socially reprehensible considerations.  What is prohibited is to dismiss employees engaged in union activities, not to definitively close a business because one does not want to deal with a union or because a union cannot be broken, even if the secondary effect of this is employee dismissal.  [Emphasis omitted.]

I respectfully agree with Judge Lesage’s account. See also Caya v. 1641-9749 Québec Inc., D.T.E. 85T-242 (L.C.); Syndicat des employés de salaisons de Princeville Inc. v. Coopérative fédérée de Québec (succursale de Princeville), [1976] R.D.T. 89 (Sup. Ct.).

29                               The Union acknowledges the general right of enterprises to go out of business, but argues that the SPA did not in fact do so during the Disputed Period, or did not do so in a bona fide manner.  As the Union rightly notes, courts and tribunals must carefully scrutinize the facts of each case to make sure that the decision to close up shop is genuine and not merely a strike-breaking ruse.  I again adopt the words of Judge Lesage in City Buick Pontiac, supra, at p. 26:

[translation] It is still necessary, and this is of utmost importance, that the decision to discontinue be authentic and not a simulation, merely an argument in the arsenal of methods used to overcome union demands, because it would then be a pretext and a fiction that would preclude a consideration of it independently of the reasons therefor.  This would be the case if, by subterfuge, the employer continued its activities indirectly, with the assistance of others, elsewhere or in other ways or after a period of time has passed in order to keep up appearances.  Any indication that it is keeping a door open to resume the same business would preclude a finding of its complete and definitive discontinuance . . . .

                                                                   . . .

It is certainly with the utmost strictness that the circumstances of the decision to close must be scrutinized in order to assess its true nature . . . . [Emphasis omitted.]

30                               The Union submits that the SPA did not meet this “genuineness” requirement enunciated by Judge Lesage because its reason for shutting down the technical services side of its business was to relieve itself of the burden imposed by the Union’s strike.  The Union notes that the trial judge did not believe the SPA when it argued that its resolution of November 8, 1999 to quit offering technical services to its Tenants was [translation] “the result of a carefully considered business decision” and not a decision taken on account of the strike.  The Union submits, without offering authority on the point, that the jurisprudence on the right of an employer to go out of business is premised on the employer having credible reasons of an economic nature for doing so.

31                               I see no such limitation in the case law. On the contrary, Judge Lesage’s reasons in City Buick Pontiac, supra, at p. 26, make clear that an employer may decide to close up shop [translation] “for whatever reason . . . even if the cessation is based on socially reprehensible considerations”.  The facts of City Buick Pontiac are instructive.  There, the employer freely admitted that it was closing up shop because of its inability to negociate a satisfactory agreement with its sales staff. Faced with this bald admission of the employer’s motive, Judge Lesage rightly held that it was not for the Labour Tribunal to sit in judgment of the employer’s reasons for shutting down but only to assure that the employer carried out that decision genuinely and did not merely engage in an elaborate sham to break the employees’ strike. Returning to the case at bar, the SPA claims it had been considering getting out of the technical services business for some time.  That may be so, but it is strictly beside the point.  Where an employer genuinely goes out of business, its motive for doing so is not subject to review under s. 109.1(b) of the Code.

32                               I am of the view that the SPA had genuinely abandoned the technical services part of its business until being forced to reverse that decision by Normand J.’s injunction.  Several factors point to this conclusion. First there is the SPA’s Resolution, which declared its definitive intent to quit offering and providing stage technician services to its Tenants and to amend the Tenants’ leases accordingly.  Next there are the lease amendments carried out in accordance with the Resolution.  The actual practices of the SPA and the Tenants during the Disputed Period also support the view that the SPA had genuinely abandoned its technical services business.  During that time, the SPA had nothing to do with the hiring, supervision or remuneration of stage technicians.  Those responsibilities fell solely to the Tenants.  Technicians hired by the Tenants worked only for the Tenant by whom they were engaged; they did no work for the SPA nor for other Tenants.  They were paid directly by their employer, without SPA involvement.  They were supervised exclusively by the Tenant that employed them.  This is not to say that SPA had no interaction at all with the Tenants’ technicians during the Disputed Period.  The Union notes that SPA coordinators told technicians where to find replacement parts for broken equipment and gave them access to the SPA’s inventory of equipment and supplies.  When a spotlight burnt out, an SPA employee might direct a technician to the stock of new bulbs. In doing so, the SPA was simply acting as a landlord.  In short, the SPA had completely withdrawn from its former business of providing technical services to its Tenants.

33                               I would add that the SPA’s new, pared-down business model was in line with practice elsewhere in the industry, whereby producers like the Tenants supply their own stage technicians rather than rely on ones provided by their landlords.  This fact is not, on its own, decisive.  Yet it gives further weight to the view that the SPA had genuinely shut down and withdrawn from the technical services side of its business.

III.  Conclusion

34                               The correct approach to the question before us is one that bears in mind that the SPA and its Tenants are distinct legal entities, and that the SPA has the right under Quebec law to go partially or completely out of business. With respect, the courts below lost sight of these points and proceeded to give too broad a meaning to the concept of “utilizing” in s. 109.1(b) of the Code.  The SPA genuinely abandoned the technical services part of its business. It was not in violation of s. 109.1(b) for having done so.  I would allow the appeal, vacate the injunction and award the SPA its costs throughout.

Appeal allowed with costs.

Solicitors for the appellant:  Heenan Blaikie, Montréal.

Solicitors for the respondent:  Trudeau, Provençal, Morissette & Saint‑Pierre, Montréal.