Zinck's Bus Co. v. Canada
T-1175-97
Wetston J.
29/7/98
12 pp.
Application to quash payment order issued pursuant to Canada Labour Code, s. 251.1(1) on grounds either outside jurisdiction of issuing inspector as business in respect of which purported to issue order not within jurisdiction of Parliament of Canada or breach of procedural fairness-Applicant's bus business including on-demand charter service, available for interprovincial trips until June 2, 1995-Less than 1% of charter trips in one-year period extending beyond Nova Scotia border-Interprovincial charters representing 1.5% of applicant's revenues, 2% of total kilometres driven-Applicant not participating in "interlining" whereby tickets issued by one carrier for destinations beyond licensed service area of that carrier, through use of transfer and revenue sharing agreements made amongst major carriers-Employees filing complaints with Human Resources Development Canada claiming general holiday, overtime, vacation pay pursuant to Code for period from June 1, 1993 to June 2, 1995-Applicant refusing to give inspector access to payroll records-Lack of cooperation designed to bring matter before courts so that question of whether applicant's business under federal jurisdiction could be resolved-Payment order based on calculations using information provided by individual claimants-Notwithstanding applicant's request, inspector not providing applicant access to information provided to her by claimants-Applicant submitting failure to provide access to such information violation of procedural fairness-Application allowed-Right to be heard principle of natural justice at issue-Having often refused to participate in process in order to bring matter before court, applicant cannot now claim unfair treatment in not being granted access to information in inspector's possession-Cannot allege breach of natural justice where breach, if any, precipitated by applicant's conduct-Code, s. 86 providing Part III applying only in respect of employees employed upon or in connection with operation of any federal work, undertaking, or business-S. 2 defining "federal work, undertaking or business" as any work, undertaking or business within legislative authority of Parliament, including work or undertaking connecting any province with any other province, or extending beyond limits of province-Applicant's business subject to Code only if demonstrated within ambit of Constitution Act, 1867, s. 92(10)(a) as undertaking connecting Nova Scotia with another province, or extended beyond limits of Nova Scotia-Necessary to ascertain essential nature of operation, i.e. whether undertaking in pith and substance interprovincial-Essential nature of applicant's business to provide transportation bus services in, around Halifax-Courts often holding undertaking within federal regulatory authority even if small percentage of business activity interprovincial, international-But primary indicia for determination of whether transportation undertaking in pith and substance federal remaining whether interprovincial services continuous, regular part of undertaking's operations-"Percentage of interprovincial" business test should not be relied upon to make such determination-Even marginal amount of unscheduled, interprovincial traffic may be sufficient to find undertaking regular, continuous if establishing applicant "stands ready at any time" to conduct such service, that applicant gone to expense of acquiring necessary licences, permits, and that sufficient frequency in interprovincial trips made: R. v. Cooksville Magistrate's Court, Ex parte Liquid Cargo Lines Ltd. (1964), 46 D.L.R. (2d) 700 (Ont. H.C.)-While applicant stood ready to provide interprovincial charter service, did so only 30 times over one-year period, representing less than 1% of all of applicant's charter traffic-Low volume, limited frequency of applicant's unscheduled, interprovincial trips indicating "interprovincial" portion of applicant's business exceptional, rather than "normal or habitual" or "regular and continuous"-That applicant not engaging in "interlining" also suggesting bus business not interprovincial in scope-Applicant's occasional, infrequent, unscheduled interprovincial charter service merely incidental to, in pith in substance, local transportation undertaking: R. v. Manitoba Labour Board, Ex parte Invictus Ltd. (1967), 65 D.L.R. (2d) 517 (Man. Q.B.)-Applicant's business not within Constitution Act, 1867, s. 92(10)(a) during relevant time, not meeting definition of "federal work, undertaking or business, within Code, s. 2-Payment order ultra vires-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)-Canada Labour Code, R.S.C., 1985, c. L-2, ss. 2 "federal work, undertaking or business" (as am. by S.C. 1990, c. 44, s. 17), 86, 251.1(1) (as enacted by S.C. 1993, c. 42, s. 37).