A-428-81
Verreault Navigation Inc. (Applicant)
v.
Seafarers' International Union of Canada, AFL-
CIO-CLTC and Canada Labour Relations Board
(Respondents)
Court of Appeal, Pratte, Ryan JJ. and Lalande
D.J.—Montreal, May 21; Ottawa, July 20, 1982.
Labour relations — Canada Labour Relations Board certi
fying S.I.U. as bargaining agent at shipyard — Board not
exceeding jurisdiction — Dredging a federal work, undertak
ing or business — Applicant failing to establish shipyard
separate from dredging business — Canada Labour Code,
R.S.C. 1970, c. L-1, s. 2.
Jurisdiction — Canada Labour Relations Board — Board
not exceeding jurisdiction in certifying Union at combined
shipyard and dredging business — Dredging a federal work,
undertaking or business — Employer failing to establish
shipyard separate from dredging business — Canada Labour
Code, R.S.C. 1970, c. L-1, s. 2.
Constitutional law — Distribution of powers — Navigation
and shipping — Federal power under s. 91(10) of Constitution
Act, 1867 — Dredging is federal work, undertaking or busi
ness — Employer operating combined dredging and shipyard
business — Shipyard used to build and repair dredging equip
ment — C.L.R.B. having jurisdiction to certify Union as
bargaining agent — Constitution Act, 1867, 30 & 31 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 5], as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act,
1982, Item 1, s. 91(10).
Judicial review — Applications to review — Labour rela
tions — Canada Labour Relations Board certifying S.I.U. as
bargaining agent for employees at applicant's shipyard —
Whether Board exceeding jurisdiction — Dredging a federal
work, undertaking or business — Activity closely tied to
navigation, federal head of power under s. 91(10), Constitution
Act, 1867 — Applicant failing to establish shipyard separate
from dredging business — Board not concluding applicant
operating two businesses — Application dismissed, Lalande
D.J. dissenting — Constitution Act, 1867, 30 & 31 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 5], as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act,
1982, Item 1, s. 91(10) — Canada Labour Code, R.S.C. 1970,
c. L-1, ss. 2(a), 108 (as am. by S.C. 1972, c. 18, s. I) —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
CASE JUDICIALLY CONSIDERED
APPLIED:
Regina v. Nova Scotia Labour Relations Board, Ex
Parte J.B. Porter Co. Ltd. (1968), 68 D.L.R. (2d) 613
(N.S.S.C.).
COUNSEL:
André Joli-Cœur, Rémi Chartier and Claude
Joli- Coeur for applicant.
Joseph Nuss, Q.C. for respondent Seafarers'
International Union of Canada, AFL-CIO-
CLTC.
Miche! Décary for respondent Canada
Labour Relations Board.
SOLICITORS:
Langlois, Drouin & Associés, Quebec City,
for applicant.
Ahern, Nuss & Drymer, Montreal, for
respondent Seafarers' International Union of
Canada, AFL-CIO-CLTC.
Stikeman, Elliott, Tamaki, Mercier & Robb,
Montreal, for respondent Canada Labour
Relations Board.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: The applicant operates both a dredg
ing business and a shipyard. It is asking in accord
ance with section 28 of the Federal Court Act
[R.S.C. 1970 (2nd Supp.), c. 10] that a decision of
the Canada Labour Relations Board, which certi
fied respondent Union as the bargaining agent for
the employees at its shipyard, be set aside. It
maintains that the Board exceeded its jurisdiction
in making that decision.
The applicant did not raise the argument on
which it relies at this time in the proceeding before
the Board. It simply contended that it was in fact
operating a single undertaking, a dredging busi
ness, and that its shipyard was only a part of that
undertaking. It concluded that its employees
should not be divided into two bargaining units,
but be grouped into a single unit comprising
employees affected both at the shipyard and in the
dredging business.
Counsel for the applicant maintained that the
Board decided to certify the Union as the bargain-
ing agent for employees at the shipyard because it
considered that applicant's shipyard was a sepa
rate business from its dredging work. This being
so, he submitted, the Board exceeded its jurisdic
tion in making the decision a quo, because a
shipyard is not a "federal work, undertaking or
business" within the meaning of section 2 of the
Canada Labour Code [R.S.C. 1970, c. L-1].' He
added that, in any case, even if the shipyard ought
to be considered a part of or accessory to the
dredging business, the Board's jurisdiction in the
matter was doubtful because it was not clear that a
dredging business is a federal work, undertaking or
business. However, counsel for the applicant
expressly refused to plead this argument; he stated
that it was in his client's interest to remain silent
on this point.
I should first say that a dredging business seems
to me to be a federal work, undertaking or busi
ness, as the Supreme Court of Nova Scotia held in
Regina v. Nova Scotia Labour Relations Board,
Ex parte J.B. Porter Co. Ltd. (1968), 68 D.L.R.
(2d) 613 (N.S.S.C.). Dredging is an activity which
involves excavating sea or riverbeds, primarily in
order to create, repair or maintain navigation lanes
and harbours. In my opinion, a dredging business
is a federal work, undertaking or business, not
because it uses floating equipment or generally
does business in several provinces, but because its
activity is so closely tied to navigation that it falls
within the authority of the federal Parliament,
under subsection 91(10) of the Constitution Act,
1867,' to legislate on "Navigation and Shipping".
' Section 2 of the Code gives a definition of the expression
"federal work, undertaking or business", which at the begin
ning reads:
2. In this Act
"federal work, undertaking or business" means any work,
undertaking or business that is within the legislative au
thority of the Parliament of Canada, including without
restricting the generality of the foregoing:
(a) a work, undertaking or business operated or carried on
for or in connection with navigation and shipping, whether
inland or maritime, including the operation of ships and
transportation by ship anywhere in Canada;
* 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No.
5], as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to
the Constitution Act, 1982, Item 1.
In order to succeed, therefore, counsel for the
applicant had to begin by establishing that the
business of the shipyard was separate from the
dredging business operated by the applicant. This
he did not do. He sought to rely on the findings of
fact contained in the decision a quo. However,
contrary to what he maintained, the Board never
concluded that the applicant was operating two
entirely separate businesses; it only expressed
doubts on the point, and held that the applicant's
two activities were sufficiently separate for it to be
advisable to divide its employees into two bargain
ing units. Moreover, the information contained in
the record and the evidence presented to the Board
(in particular Volumes XVI, XVII and XVIII of
the Appeal Book) provide no basis for concluding
that the shipyard, the primary purpose of which is
to build and repair the applicant's dredging equip
ment, is anything but a part of the dredging
business.
In these circumstances, I cannot say that the
Board exceeded its jurisdiction in making the deci
sion a quo. I would accordingly dismiss the
application.
RYAN J.: I concur.
* * *
The following is the English version of the
reasons for judgment rendered by
LALANDE D.J. (dissenting): The applicant is
asking this Court, pursuant to section 28 of the
Federal Court Act, to set aside a decision of the
Canada Labour Relations Board on July 3, 1981,
certifying respondent Union as the bargaining
agent for the employees at its shipyard at Les
Méchins.
The Board found that the shipyard was not
merely an adjunct to the applicant's dredging
operations, that it had activities independent of
those operations and that employees at the ship
yard and those affected at the dredging business
should form part of separate bargaining units. It is
not for this Court to revise these findings of fact.
The decision of Cowan C.J. in Regina v. Nova
Scotia Labour Relations Board, Ex parte J.B.
Porter Co. Ltd. (1968), 68 D.L.R. (2d) 613
(N.S.S.C.), does not seem to be applicable, for it
states at page 623:
The application in the case at bar relates to employees of the
applicant company [for a writ of certiorari] who are land-based
at its Dartmouth depot.
The Dartmouth depot has one purpose only and that is to
support the company's fleet of ships and water-borne engineer
ing and construction and dredging plant. [Emphasis added.]
The Chief Justice further found [at pages 622
and 623]:
No work at the Dartmouth depot is done for the public and the
work at the depot is solely to serve the company's floating craft
in the Atlantic area.
The question raised by this application is there
fore whether the employees of a shipyard—which
unlike that at Dartmouth does not exist exclusively
to maintain ships and dredgers belonging to the
same employer—are within federal jurisdiction as
to their labour relations, or whether they should
remain under provincial jurisdiction. They would
only come within federal jurisdiction if they are
"employed upon or in connection with the opera
tion of any federal work, undertaking or business"
(section 108 of the Canada Labour Code [as am.
by S.C. 1972, c. 18, s. 1]).
In the circumstances, in order to say that the
applicant's business of building and repairing ships
is federal, this activity as a business must fall
within the legislative power of the Parliament of
Canada because it takes place
... for or in connection with navigation and shipping, whether
inland or maritime, including the operation of ships and trans
portation by ship anywhere in Canada;
In order to determine the meaning to be given to
the phrase "mise en service de navires" in para
graph (a) of section 2 of the Canada Labour Code,
reference must be had to the English version. This
speaks of the "operation of ships", which does not
include building and repair.
In my view a shipyard, which does not form part
of a federal work, undertaking or business as in
Porter, is not in itself a federal work, undertaking
or business. It is accordingly not surprising to see
from the record that bargaining agents in Cana-
dian shipyards are certified by the provincial
authorities.
If the applicant's shipyard is regarded as form
ing part of its dredging business, in my opinion
that does not alter the answer that must be given
to the question of jurisdiction raised by this
application.
Dredging does not fall under the constitutional
heading of "Navigation and Shipping" any more
than does the building and repair of ships. Like the
building of a wharf, dredging is connected with
and related to navigation, but it is not an activity
carried on "for or in connection with navigation".
It should also be noted that a dredger is not a ship
within the meaning of the Canada Shipping Act
[R.S.C. 1970, c. S-9].
The fact that the applicant carries on its dredg
ing business in more than one province does not
change this and does not make it a federal work,
undertaking or business for the purposes of the
Canada Labour Code.
I conclude that the Board exceeded its jurisdic
tion in certifying the respondent Union and that its
decision should be set aside.
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.