A-244-80
Johnston Terminals and Storage Limited (Appli-
cant)
v.
Vancouver Harbour Employees' Association Local
517, International Longshoremen's and Ware-
housemen's Union (C.L.C.) (Respondent)
Court of Appeal, Thurlow C.J., Heald and Urie
JJ.—Vancouver, February 3 and 6, 1981.
Judicial review — Public Service — Application to review
and set aside decision of Canada Labour Relations Board
certifying respondent as bargaining agent for the clerical
employees of the applicant — Applicant employed the clerks
and provided them to a subsidiary company on an exclusive
and permanent contractual basis — Subsidiary company is a
federal undertaking — Work performed is an integral part of
a federal undertaking Whether or not the Board has
jurisdiction in this matter Whether or not it is necessary to
look at the essential character of the employer or to the nature
of the work being done by the employees to determine which
level of government has jurisdiction in respect of the
employees — Application dismissed — Canada Labour Code,
R.S.C. 1970, c. L-1 as amended, s. 108 — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is an application to review and set aside a decision of the
Canada Labour Relations Board certifying the respondent as
the bargaining agent for clerical employees of the applicant.
The applicant submitted that the Board erred in deciding that
the labour relations of its employees located at the premises of
a subsidiary, Fraser Surrey Docks Ltd. is a matter within
federal competence. Fraser Surrey Docks Ltd. is a federal
undertaking. The work performed by the employees is an
integral part of a federal undertaking. The question is whether,
in order to determine which level of government has jurisdic
tion in respect of the labour relations of a particular group of
employees, it is necessary to look at the essential character of
the employer or at the nature of work performed by the
employees.
Held, the application is dismissed. The question whether an
undertaking, service or business is a federal one depends on the
nature of its operation. On the facts of this case and pursuant
to section 108 of the Code the relevant undertaking is Fraser
Surrey Docks Ltd. because that is the undertaking where
subject employees are employed. To answer the constitutional
question, it is necessary to look at the nature of the operation,
that is, the nature of the work being performed by the
employees. The Board did not err in finding that it had
jurisdiction in this matter.
Jessiman Bros. Cartage Ltd. v. Letter Carriers' Union of
Canada [1972] 1 W.W.R. 289, distinguished. The Letter
Carriers' Union of Canada v. Canadian Union of Postal
Workers [1975] 1 S.C.R. 178, applied. In re Reference as
to Validity of Industrial Relations and Disputes Investi
gation Act [1955] S.C.R. 529, applied. The Public Service
Board v. Dionne [1978] 2 S.C.R. 191, applied. Canada
Labour Relations Board v. City of Yellowknife [1977] 2
S.C.R. 729, applied. Northern Telecom Ltd. v. Communi
cations Workers of Canada [1980] 1 S.C.R. 115, applied.
APPLICATION for judicial review.
COUNSEL:
Joan McEwen for applicant.
No one appearing for respondent.
John M. Baigent for Canada Labour Rela
tions Board.
William B. Scarth, Q.C. for Deputy Attorney
General of Canada.
SOLICITORS:
Davis & Company, Vancouver, for applicant.
Laxton & Company, Vancouver, for respond
ent.
Baigent & Jackson, Vancouver, for Canada
Labour Relations Board.
Deputy Attorney General of Canada for
Deputy Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside a decision of the Canada
Labour Relations Board (hereinafter the Board)
dated March 27, 1980 whereby the Board ordered
that the respondent Union be certified as the
bargaining agent for those employees of the appli
cant described as follows: "all employees of John-
ston Terminals and Storage Limited, located at
Fraser Surrey Dock, engaged in clerical work
related to the loading and unloading of vessels."
The respondent Union did not intervene in these
proceedings under section 28 and was not repre
sented at the hearing before us. The Attorney
General of Canada did intervene and was repre
sented by counsel. The Board was also represented
by counsel.
The sole ground of attack raised in this applica
tion is that the Board erred in deciding that the
labour relations of the applicant's eleven clerical
employees located at the premises of Fraser Surrey
Docks Ltd. is a matter within federal competence
and as a consequence, erred in granting certifica
tion to the respondent in respect of those
employees.
The Board, in its reasons for decision, stated
that it received detailed evidence at the public
hearings bearing mostly on:
(1) the degree of autonomous work performed
by the subject employees and, conversely,
(2) the degree of interrelationship with and of
control by the headquarters of the applicant.
(Case, Vol. 3, pages 290 and 291.)
Apparently a transcript of the evidence adduced
at the public hearing was not produced since it
does not form a part of the case before us and we
are not therefore in a position to consider the
propriety of the findings of fact made by the Board
based on that evidence. However, based on the
evidence, both oral and documentary, received by
the Board, it appears to have found, inter alia, the
following facts.
1. Respondent's application for certification
encompasses eleven clerical employees of the
applicant company employed in work areas or
offices on the water-front where Fraser Surrey
Docks Ltd., a subsidiary of the applicant company,
carries out stevedoring or terminal operator func
tions at Surrey, B.C. (Case, Vol. 4, pages 434, 435
and 437.)
2. The applicant company is essentially a parent
company engaged in the business of providing
administrative, personnel and technical support
services to its approximately 35 subsidiary compa
nies. Employees of the parent company are located
from Vancouver Island to Toronto. The subsidiar
ies of the applicant are engaged in a variety of
enterprises, three of which are federal undertak
ings, the others being clearly subject to provincial
jurisdiction. In addition to the centralized adminis
trative and personnel services supplied to all of the
operating companies by approximately 150
employees working at applicant's headquarters,
there are a total of approximately 300 employees
constituting its technical, clerical and administra
tive staff which the applicant provides to the sub
sidiary companies outside of headquarters. The
clerical employees who are the subject of this
application belong to this group. They constitute
the clerical staff (together with three other
employees excluded from the bargaining unit)
employed by the applicant and provided to Fraser
Surrey Docks Ltd. on an exclusive and permanent
contractual basis. (Case, Vol. 4, pages 436-439
and Case, Vol. 3, pages 289 and 294.)
3. Fraser Surrey Docks Ltd. is a federal
undertaking.' (Case, Vol. 3, page 294.)
4. The work performed by the said employees is
work in connection with a federal undertaking and
is an integral part of a federal undertaking. It is
work which is required daily to operate the federal
undertakings of handling cargo in the "navigation
and shipping" business. It is work which is neces
sary to the successful operation of steamship lines
engaged in the transportation of freight, the load
ing and unloading of it from ships and its dispatch
and delivery to customers. The only employees
doing this work for Fraser Surrey Docks Ltd. are
the subject eleven employees who do only that
work. (Case, Vol. 3, pages 294 and 295.)
5. For all intents and purposes the said employees
act for and represent Fraser Surrey Docks Ltd., a
federal undertaking, and not for the applicant
company. (Case, Vol. 3, page 294.)
6. The applicant company does not operate any
independent business except that of providing cen
tralized support services to its subsidiaries. The
Johnston family group is not a traditional enter
prise. It is a self-styled group of operating compa
nies. Aside from being "held" by the applicant
company, the only thing they have in common are
these centralized services. (Case, Vol. 3, pages 298
and 299.)
7. Applicant's counsel conceded that were Fraser
Surrey Docks Ltd. to hire its own office workers,
It is not clear to me that the operation carried out by Fraser
Surrey Docks Ltd. is indeed a federal undertaking but as it was
common ground between the parties that the operation was
federal I deal with the matter on that assumption.
these workers would be held to be within federal
jurisdiction. (Case, Vol. 3, page 295.)
8. Subject employees being exclusively involved
with the paper work necessary for the movement
of cargo at the docks and working closely with
dock employees to the extent of taking some direc
tives from them, are involved with work which is
an integral and essential part of the dock opera
tions. The documentation account for cargo and
the charges attendant to its moving are a critical
part of the undertaking of Fraser Surrey Docks
Ltd. (Case, Vol. 3, page 290.)
Counsel for the applicant, as I understood her
submission, accepted the Board's finding that to do
the work performed by the employees in question
was to do work upon or in connection with the
operation of a federal work, undertaking or busi
ness. She also accepted the Board's finding that
had Fraser Surrey Docks Ltd. hired its own office
workers to do this work, those workers would be
held to be within federal jurisdiction. So far as the
other findings of fact of the Board are concerned,
counsel for the applicant was not in a position to
challenge those findings since prior to the hearing
before us, she had not taken advantage of the
procedure set out in the Federal Court Rules for
applying to have the contents of the case varied by
adding thereto affidavit evidence which could pos
sibly contradict the evidence upon which the Board
based its various findings of fact as detailed supra.
The onus would be on the applicant to show that
the Board's findings of fact are incorrect and that
onus has not been discharged.
Moreover, as I understood the position of coun
sel, it was her submission that even on the basis of
the various findings of fact as detailed by the
Board in their reasons, the Board erred in law in
holding that it had jurisdiction over this unit of
employees. It is the applicant's submission that to
determine which level of government has jurisdic
tion in respect of the labour relations of a particu
lar group of employees, it is necessary to look at
the essential character of the employer of those
employees rather than to the nature of the work
being done by those employees. Thus while the
business of Fraser Surrey Docks Ltd. is admittedly
integral to the federal subject of "navigation and
shipping" the business of the applicant, i.e., the
provision of administrative, personnel and techni
cal support services, is not such as to constitute it a
federal work or undertaking. In support of this
submission, the applicant relies on the majority
decision of the Manitoba Court of Appeal in the
Jessiman case 2 . In that case the appellant Jessi-
man was a company incorporated only in Manito-
ba. Its employees lived only in Manitoba. It had
some 18 contracts with a number of retail and
wholesale establishments as well as a mail carrying
contract with the federal Post Office Department.
Of some 300 drivers in total approximately 90
were working on the Post Office contract. How
ever, one important factual difference between
that case and the case at bar is that Jessiman
"could easily substitute 90 different men (out of its
300 truck drivers) for those presently employed
driving bulk mail trucks". This fact represents, in
my view, a significant distinction from the case at
bar where the employees in question are assigned
exclusively and permanently to Fraser Surrey
Docks Ltd. Accordingly, I do not find the majority
reasons in the Jessiman case to be persuasive for
the purpose of deciding the issues in the case at
bar, firstly, because of the significantly different
factual situation above referred to, and, secondly,
because subsequent jurisprudence favours the
"functional" approach to the question adopted by
Hall J.A. in his dissenting judgment.
Applicant's counsel also relies on the decision of
the Supreme Court of Canada in the Letter Carri
ers case 4 . In that case, the company held seven
contracts with the Post Office for the handling and
carriage of mail which comprised 90% of its entire
operation. The company also held a licence for the
carriage provincially and interprovincially of cer-
2 Jessiman Bros. Cartage Ltd. v. Letter Carriers' Union of
Canada [1972] 1 W.W.R. 289.
3 See Jessiman case supra at p. 292.
^ The Letter Carriers' Union of Canada v. Canadian Union
of Postal Workers [1975] 1 S.C.R. 178.
tain specified commodities. This work, performed
during the summer months and employing at times
some of the employees in the proposed unit, com
prised the remaining 10% of the company's work. I
pause to observe that just as in the Jessiman case,
the subject employees were not assigned exclusive
ly and permanently to a federal undertaking so in
the Letter Carriers case were the subject
employees not assigned exclusively and perma
nently to a provincial undertaking. However, even
apart from this rather significant factual differ
ence, in my opinion, the Letter Carriers case does
not assist the applicant here. Applicant's counsel
relied on that portion of Mr. Justice Ritchie's
judgment at page 188 where he observed that since
90% of the company's activities were confined to
work for the Post Office, this was clearly the main
and principal part of its business sufficient to oust
any possible claim to jurisdiction by the Provincial
Board. I do not agree that, reading the judgment
of Mr. Justice Ritchie as a whole, it supports the
applicant's submission that the governing consider
ation is the nature of the employer's business
rather than the nature of the work being done by
the employees in question. At page 182 of the
judgment, when dealing with the wording of sec
tion 108 (1) of the Canada Labour Code, the
learned Justice said "... it follows, in my view,
that if the truck drivers employed by M & B
Enterprises Ltd. were found to be employees who
are employed upon or in connection with the oper
ation of the Post Office, the Saskatchewan Labour
Relations Board would be without jurisdiction to
entertain the application for certification." And
again at page 183: "In my opinion the work so
described which is performed by these employees
is essential to the function of the postal service and
is carried out under the supervision and control of
the Post Office authorities ...". Additionally, Mr.
Justice Ritchie at page 186, after quoting with
approval from the judgment of Estey J. in the
Stevedores case (to which more detailed reference
will be made later herein) said: "... it appears to
me from the facts which I have recited that the
work of the truck drivers of M & B Enterprises
Ltd. as performed under its contract with the Post
Office was an integral part of the effective opera
tion of the Post Office, and that all the language in
the last-quoted passage from Estey J. is directly
applicable to the task performed by these
employees in the business of the Post Office." [The
underlining is mine.]
Accordingly, it is my opinion that the decision of
the Supreme Court of Canada in the Letter Carri
ers case supports the view that the determining
constitutional factor is the nature of the work
being done by subject employees. I fail to see how
it can be otherwise having regard to the wording of
section 108 of the Canada Labour Code, R.S.C.
1970, c. L-1, as amended by S.C. 1972, c. 18, s. 1. 5
From that provision it seems clear to me that the
"undertaking" to be examined is the undertaking
which the employees are engaged in. This view is, I
think, supported by the decision in the Eastern
Stevedoring case. 6 At pages 536 and 537, Chief
Justice Kerwin stated: "The circumstance that the
Company is an organization independent of the
steamship companies with which it contracted,
does not, in my opinion, affect the matter, and I
find it difficult to distinguish the employees we are
considering from those, engaged in similar work,
employed directly by a shipping company whose
ships ply between Canadian and foreign ports."
And then, Mr. Justice Estey at page 569 makes
the statement which was cited with approval by
Mr. Justice Ritchie in the Letter Carriers case,
reading as follows: "The fact that the stevedores
here in question were employees of the Eastern
Canada Stevedoring Co. Ltd. is not conclusive of,
if indeed material to, a consideration of the ques
tion whether they are subject to the legislative
jurisdiction of the Parliament of Canada or the
legislature of a province .... Such a question must
be resolved by a consideration of the nature and
character of the services in relation to the works
and undertakings of the lines of steam ships here
in question."
5 Said section 108 reads:
108. This Part applies in respect of employees who are
employed upon or in connection with the operation of any
federal work, undertaking or business and in respect of the
employers of all such employees in their relations with such
employees and in respect of trade unions and employers'
organizations composed of such employees or employers.
6 In re Reference as to Validity of Industrial Relations and
Disputes Investigation Act [1955] S.C.R. 529, otherwise
referred to herein as the Stevedores case.
In my opinion the reasoning above set forth
clearly applies to the factual situation in the case
at bar which is very similar to the situation in the
Stevedores case supra. In this case the Board
found (see paragraph 4 in statement of facts set
out supra) "The work performed by the said
employees is work in connection with a federal
undertaking and is an integral part of a federal
undertaking. It is work which is required daily to
operate the federal undertakings of handling cargo
in the `navigation and shipping' business. It is work
which is necessary to the successful operation of
steamship lines engaged in the transportation of
freight, the loading and unloading of it from ships
and its dispatch and delivery to customers." The
functional approach adopted in the case at bar by
the Board was the approach approved by the Court
in the Stevedores case. This approach was also
approved by the Supreme Court of Canada in the
Dionne case in dealing with the question of cable
television. Also in the City of Yellowknife cases,
Mr. Justice Pigeon stated at page 736:
This leaves for consideration as the only question in this case
whether, in the context of the Labour Code, the definition of
the expression "federal work, undertaking or business"
embraces the operations of a municipal corporation.
In considering this question, one has to bear in mind that it is
well settled that jurisdiction over labour matters depends on
legislative authority over the operation, not over the person of
the employer.
The most recent decision by the Supreme Court
of Canada bearing on the issue is the case of
Northern Telecom Ltd. v. Communications Work
ers of Canada 9 . At page 132 Mr. Justice Dickson
quoted with approval six legal principles in the
area of labour relations enunciated by Mr. Justice
Beetz in Construction Montcalm Inc. v. Minimum
Wage Commission [1979] 1 S.C.R. 754. I consider
that principle number (5) has particular applica
tion to the present case: "(5) The question whether
an undertaking, service or business is a federal one
depends on the nature of its operation." On the
7 The Public Service Board v. Dionne [1978] 2 S.C.R. 191.
8 Canada Labour Relations Board v. City of Yellowknife
[1977] 2 S.C.R. 729.
9 [1980] 1 S.C.R. 115.
facts of this case and pursuant to section 108 of
the Code, the relevant undertaking is Fraser
Surrey Docks Ltd. because that is the undertaking
where subject employees are employed. And pur
suant to principle number (5) supra, to answer the
constitutional question, it is necessary to look at
the nature of the operation that is, the nature of
the work being performed.
I have accordingly concluded for the foregoing
reasons that it has not been shown that the Board
erred in finding that it had jurisdiction in this
matter. I would therefore dismiss the within sec
tion 28 application.
* * *
THURLOW C.J.: I agree.
* * *
URIE J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.