LABOUR RELATIONS |
Offshore Logistics Inc. v. Halifax Longshoremen's Assn., Local 269
A-425-99
Rothstein J.A.
17/8/00
31 pp.
Application for judicial review of Canada Industrial Relations Board (Board) decision under Canada Labour Code, s. 34 granting application by respondent union for inclusion in its geographical certification for Port of Halifax, of applicant's operations of loading and unloading of vessels chartered to Mobil Oil Canada Properties at Mobil dock at Dartmouth, Nova Scotia--Code, s. 34 empowering Board to join together, for collective bargaining purposes, independent employers in geographic area--Applicant arguing: (1) Board's determination Offshore's employees engaged in longshoring patently unreasonable; (2) Board's decision rendered by Chairman alone, in violation of Code; (3) proceedings before Board violated principles of natural justice; (4) Offshore subject to provincial and not federal jurisdiction and Board exceeded constitutional jurisdiction in purporting to regulate its labour relations--Appeal dismissed --(1) Standard of review to be determined according to functional and pragmatic approach: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982--Given broad privative clause in Code, s. 22 with respect to Board's decisions, given Board's expertise and experience in administering comprehensive labour disputes, given determination largely based on facts and circumstances, question of whether work herein longshoring one Parliament intended to be left to Board--Standard of review therefore patent unreasonableness--In Halifax Offshore Terminal Services Limited (1987), 71 di 157 (CLRB) (Halifax Offshore), Board dismissed application by Checkers' Union to include in its geographical certification at Halifax, work related to checking of cargoes--Board therein characterized issue as whether work should be classified as longshoring--Board herein distinguished Halifax Offshore primarily on basis activities of employees herein not, as in Halifax Offshore, incidentally related to longshoring, but essence of longshoring--As determination herein largely factual, Court would be hard-pressed to say analysis conducted by Board and its conclusions patently unreasonable--(2) Originally 3-member panel heard case but, before decision rendered, one member died and other withdrew from file, leaving Chairman alone to render decision--Chairman in compliance with Code, s. 88(3) when continued to consider and decide matter alone--(3) No breach of natural justice herein--Board did not reverse its finding in Halifax Offshore, merely distinguished it--Board bound to apply Code, s. 34 as amended when rendered its decision in June 1999--In any event, Offshore chose not to make submissions as to effect of coming into force of amendment--No obligation on Board, upon Code, s. 88(3) being engaged by refusal of member to continue, to notify parties that Chairman would proceed to deal with matter alone--(4) Issue whether, in division of power context, Code, s. 34 applicable to Offshore's activities at Port of Halifax--In proceedings before Board, implicit that if Offshore activities longshoring, subject to federal regulation, in particular, Code, s. 34--Board examined facts and circumstances and concluded Offshore's activities, to significant extent, longshoring (loading and unloading of ships) and, as result, Code, s. 34 applicable to loading and unloading work done at Mobil dock--Offshore argued as vessels chartered to Mobil move exclusively between Halifax and offshore drilling sites near Sable Island, shipping wholly within Nova Scotia, subject to provincial legislative authority and by extension, Offshore's longshoring activity therefore subject to exclusive provincial legislative authority and not Code, s. 34--Issue of territorial limits of Nova Scotia in waters contiguous to its land mass complex question with far-reaching implications--No evidence of exact location of offshore drilling sites--Failure to give notice of constitutional question--Federal Court Act, s. 57 having effect, in addition to notifying Attorneys General, of giving notice to opposing parties that specific constitutional question in issue--Federal Court Form 69 requiring material facts giving rise to constitutional question be set out, as well as concise legal basis for constitutional question--Onus on Offshore to raise inapplicability of Code, s. 34 based on Constitution Act, 1867, s. 92(10)(a) if wished to do so--Did so before Court but not before Board--As result, matter not in issue before Board--Relevant evidence not adduced--Board did not pronounce upon issue and now Court, on basis on inadequate record and de novo, asked to decide issue--Inappropriate in circumstances for Court to decide constitutional question relating to intra-provincial shipping--For same reasons, also inappropriate to decide constitutional question relating to jurisdiction over oil and gas off shores of Nova Scotia--Offshore's operations essential or integral to offshore exploration of oil and gas--Appropriate for Board to sever Offshore's operations at Mobil dock from operations at pipeyard for labour relations purposes--Offshore did not present evidence indicating its operations integrated in functional and business sense, such that would be inappropriate to sever them for labour relations purposes--Canada Labour Code, R.S.C., 1985, c. L-2, ss. 22 (as am. by S.C. 1990, c. 8, s. 56; c. 44, s. 17; 1998, c. 26, s. 9), 34 (as am. by S.C. 1991, c. 39, s. 1; 1998, c. 26, s. 16), 88(3)--Federal Court Act, R.S.C., 1985, c. F-7, s. 57 (as am. by S.C. 1990, c. 8, s. 19)--Federal Court Rules, 1998, SOR/98-106, r. 69, Form 69--Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 92(10)(a).