Ontario Hydro v. Ontario (Labour Relations Board)

Ontario Hydro v. Ontario (Labour Relations Board)
Collection
Supreme Court Judgments
Date
1993-09-30
Report
[1993] 3 SCR 327
Case number
22355, 22387
Judges
Lamer, Antonio; La Forest, Gérard V.; L'Heureux-Dubé, Claire; Sopinka, John; Gonthier, Charles Doherty; Cory, Peter deCarteret; Iacobucci, Frank
On appeal from
Ontario
Subjects
Constitutional law
Notes
SCC Case Information: 22355, 22387
Decision Content
Ontario Hydro v. Ontario (Labour Relations Board), [1993] 3 S.C.R. 327
Ontario Hydro Appellant
v.
Ontario Labour Relations Board,
Society of Ontario Hydro Professional
and Administrative Employees,
Canadian Union of Public Employees ‑‑ C.L.C.
Ontario Hydro Employees Union, Local 1000,
Coalition to Stop the Certification of
the Society on Behalf of Certain Employees,
Tom Stevens, C. S. Stevenson,
Michelle Morrissey‑O'Ryan and George Orr Respondents
and
The Attorney General of Canada Respondent
and
The Attorney General for Ontario,
the Attorney General of Quebec and
the Attorney General for New Brunswick Interveners
and between
Canadian Union of Public Employees ‑‑ C.L.C.
Ontario Hydro Employees Union, Local 1000 Appellants
v.
Ontario Hydro, Ontario Labour Relations Board,
Society of Ontario Hydro Professional
and Administrative Employees,
Coalition to Stop the Certification of the
Society on Behalf of Certain Employees,
Tom Stevens, C. S. Stevenson, Michelle Morrissey‑O'Ryan
and George Orr Respondents
and
The Attorney General of Canada Respondent
and
The Attorney General for Ontario,
the Attorney General of Quebec and
the Attorney General for New Brunswick Interveners
Indexed as: Ontario Hydro v. Ontario (Labour Relations Board)
File Nos: 22355, 22387.
1992: November 9; 1993: September 30.
Present: Lamer C.J. and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and Iacobucci JJ.
on appeal from the court of appeal for ontario
Constitutional law ‑‑ Distribution of legislative powers ‑‑ Works for general advantage of Canada ‑‑ Works and undertakings constructed for the production, use and application of atomic energy declared to be works for the general advantage of Canada ‑‑ Validity and effect of declaration ‑‑ Whether federal labour relations legislation applicable to employees working at provincial nuclear electrical generating stations ‑‑ Constitution Act, 1867, ss. 91(29) , 92(10) (c), 92A(1) (c) ‑‑ Atomic Energy Control Act, R.S.C., 1985, c. A‑16 , preamble, s. 18 .
Constitutional law ‑‑ Distribution of legislative powers ‑‑ Peace, order and good government ‑‑ Atomic energy ‑‑ Whether federal labour relations legislation applicable to employees working at provincial nuclear electrical generating stations ‑‑ Constitution Act, 1867, s. 91 ‑‑ Atomic Energy Control Act, R.S.C., 1985, c. A‑16, s. 18 .
Ontario Hydro, a provincially owned corporation, produces electric power through electrical generating stations, five of which are nuclear generating stations. These stations fall within the ambit of s. 18 of the federal Atomic Energy Control Act, which provides that all works and undertakings "constructed for the production, use and application of atomic energy" are works for the general advantage of Canada. Each of Ontario Hydro's nuclear reactors is covered by a licence issued pursuant to regulations made under the Act. The respondent Society applied for certification pursuant to the Ontario Labour Relations Act as exclusive bargaining agent for a unit of employees of Ontario Hydro, including those employed at the nuclear plants. The respondent Coalition challenged the application on the ground that the employees who worked at the nuclear generating stations fell within the jurisdiction of the Canada Labour Code . The Coalition claimed that the declaration in s. 18 of the Act, combined with ss. 91(29) and 92(10) (c) of the Constitution Act, 1867 , brought Ontario Hydro's nuclear generating stations within exclusive federal jurisdiction with respect to labour relations. The Ontario Labour Relations Board found that it had no jurisdiction to deal with the proposed unit since it included employees who worked at the nuclear facilities and were governed by the Canada Labour Code . The Ontario Divisional Court quashed the Board's decision. A majority of the Ontario Court of Appeal set aside the judgment of the Divisional Court and reinstated the Board's decision.
Held (Sopinka, Cory and Iacobucci JJ. dissenting): The appeals should be dismissed. The Canada Labour Code applies to employees of Ontario Hydro who are employed on or in connection with those nuclear facilities that come under s. 18 of the Atomic Energy Control Act.
Per La Forest, L'Heureux‑Dubé and Gonthier JJ.: Section 92(10) (c) of the Constitution Act, 1867 authorizes Parliament to declare local works to be for the general advantage of Canada. When such a declaration is made, any work subject to the declaration falls, by virtue of s. 91(29) , within the legislative jurisdiction of Parliament as if such work was expressly enumerated in s. 91 . The legislative jurisdiction conferred over a declared work refers to the work as a going concern or functioning unit, which involves control over its operation and management. Labour relations are vital parts of the operation of a work and an integral part of Parliament's exclusive powers to legislate in relation to declared works. A province has power by general legislation to affect the operation of a declared work, but it cannot legislate respecting that work qua work. Legislation governing labour relations on such works is legislation in relation to that work and therefore falls outside provincial legislative competence. The current goals of labour relations have nothing to do with the source of the legislative power. Finally, it is unnecessary to consider the possible difference in scope between "undertakings" and "works" for the purposes of the various items in s. 92(10) . A work under s. 92(10) (c) means a work as a going concern, and to manage that going concern Parliament must have power to regulate the labour relations between management and labour engaged in operating the work. There is thus no logical or practical difference in the need for control of the labour relations in the management of an undertaking and in the management of a work.
The declaratory power should not be narrowly construed to conform to theoretical principles of federalism. The Constitution must be read as it is, and it expressly provides for the transfer of provincial powers to the federal Parliament over works declared to be for the general advantage of Canada. Further, in this case, the preamble of the Atomic Energy Control Act does not restrict the federal power to safety and security considerations only. While the preamble may set forth the purpose for which Parliament declared works for the development of atomic energy to be for the general advantage and may give at times some clue as to what works were intended to be covered by the declaration, once a work falls within the ambit of a declaration, the legislative power flowing therefrom is governed by the Constitution.
Section 92A(1) (c) in the Constitution Act, 1867 does not affect Parliament's authority to legislate with respect to nuclear electrical generating stations. Section 92(10) (c) extends to works created under other headings in s. 92 , and s. 92A is not different in that respect. The danger to provincial autonomy over the generation of electrical energy lay in the possible transformation of these enterprises into purely federal undertakings under s. 92(10) (a) by reason of their connection or extension beyond the province. Section 92A ensures the management by the provinces, including the regulation of labour relations, of the sites and facilities for the generation and production of electrical energy that might otherwise be threatened by s. 92(10) (a). But it was not meant to interfere with the paramount power vested in Parliament by virtue of the declaratory power (or for that matter Parliament's general power to legislate for the peace, order and good government of Canada) over "[a]ll works and undertakings constructed for the production, use and application of atomic energy".
Parliament's exclusive jurisdiction over nuclear electrical generating stations is also founded on its power to legislate over matters of national concern under the peace, order and good government clause in s. 91 of the Constitution Act, 1867 . There is no doubt that the production, use and application of atomic energy constitute a matter of national concern, which is predominantly extra‑provincial and international in character and implications, and possesses sufficiently distinct and separate characteristics to make it subject to Parliament's residual power. What was said in the context of a work subject to the declaratory power applies equally to a work over which Parliament has jurisdiction under its general power in relation to matters of national concern. Labour relations are an integral part of that jurisdiction.
Ontario Hydro was not immune from the operation of the Canada Labour Code on the basis that it was a provincial instrumentality set up to advance provincial purposes.
Per Lamer C.J.: The federal legislative jurisdiction over works such as nuclear generating stations, whether it arises pursuant to Parliament's declaratory power under s. 92(10) (c) of the Constitution Act, 1867 or pursuant to Parliament's power under s. 91 of that Act to make laws for the peace, order and good government of Canada (the "p.o.g.g." power), must be carefully described to respect and give effect to the division of legislative authority. Accordingly, Parliament's jurisdiction over a declared work must be limited so as to respect the powers of the provincial legislatures while remaining consistent with the appropriate recognition of the federal interests involved. The p.o.g.g. power is similarly subject to balancing federal principles, limiting in this case the p.o.g.g. jurisdiction to the national concern aspects of atomic energy (namely, the fact of nuclear production and its safety concerns).
The power to regulate the labour relations of Ontario Hydro's employees involved in the production of nuclear energy is an integral and essential part of Parliament's declaratory and p.o.g.g. jurisdictions. Parliament's interest as set out in the preamble of the Atomic Energy Control Act to control and supervise the application and use of atomic energy reveals its interest in regulating labour relations matters at nuclear facilities. This compelling interest is made clear by the Act's regulations dealing with health, safety and security, which include a strong employment and labour relations component, and by the conditions of the licences. While none of the regulations seek to regulate the collective bargaining process, or refer explicitly to terms or conditions which must be included in collective agreements, the matters of concern to management and labour in drafting and negotiating a collective agreement are reflected in the regulations. The federal interest in the employees working on or in connection with facilities for the production of nuclear energy extends where those employees are unionized to the labour relations regime which governs the relationship between the employer and the employees, through their bargaining agent. On the international level, there is also a consistent recognition that supervising employment on or in connection with facilities for the production of nuclear energy is an integral part of assuring the safety of nuclear facilities and materials.
Further, Parliament's declaratory jurisdiction under s. 92(10) (c) extends not only to the work but also to the integrated activity carried on therein. No convincing distinction can be drawn between what is called the "undertaking" of the work and the "integrated activities related to" that work. The jurisdiction to regulate a work and its related integrated activity prima facie includes jurisdiction to make laws respecting its labour relations. Here, the employees involved in the production of nuclear energy at Ontario Hydro's nuclear facilities clearly fall within Parliament's jurisdiction over labour relations. Their "normal or habitual activities" are intimately related to the federal interest in nuclear energy, since the extent of the federal government's interest in nuclear power production is its interest in health, safety and security, matters completely within the daily control of those operating nuclear facilities. The provincial trappings of Ontario Hydro's nuclear facilities should not mask their essentially federal operational nature.
The federal jurisdiction over labour relations does not apply to all Ontario Hydro's employees. Only those actually employed on or in connection with facilities for the production of nuclear energy are federally regulated. The others remain under provincial jurisdiction pursuant to s. 92A(1) (c) of the Constitution Act, 1867 .
Parliament is not precluded from exercising its labour relations jurisdiction over Ontario Hydro employees involved in the production of nuclear energy by the fact that the province has exercised that jurisdiction for a long period. There is no doctrine of laches in the context of constitutional division of powers.
Per Sopinka, Cory and Iacobucci JJ. (dissenting): Parliament may, under its declaratory power, decide as a matter of policy to withdraw a work or an undertaking linked to a work from what would normally be provincial jurisdiction by declaring the work or undertaking to be a work for the general advantage of Canada, or of two or more provinces. Parliament's jurisdiction over a declared work, however, is not plenary and extends only to those aspects of the work which are integral to the federal interest in the work. This limit is consistent with the traditional approach to division of powers. The Constitution Act, 1867 set up a federalist system of government for Canada and should be interpreted so as not to allow the powers of either Parliament or the provincial legislatures to subsume the powers of the other. The federal declaratory power applies to works which fall within any of the categories assigned to the provinces under ss. 92 and 92A of the Constitution Act, 1867 . Parliament did not give up its declaratory power over nuclear electrical generating stations when s. 92A was added to the Constitution in 1982.
While the valid declaration in s. 18 of the Atomic Energy Control Act brought Ontario Hydro's nuclear electrical generating stations as works within Parliament's exclusive jurisdiction, control over labour relations at these facilities is not integral to Parliament's effective regulation of its interest in nuclear plants. The preamble to the Act provides a statement of the federal interest in atomic energy and the parameters of that interest in the operations of the nuclear electrical generating facilities. The federal interest in these facilities is the fact of nuclear production and all its attendant safety, health and security concerns. Nothing in the Act, the regulations or the licences reveals any interest in labour relations. Labour relations legislation is generally concerned with regulating the process of industrial relations and aims at securing both industrial peace and better working conditions for workers. The two potential labour relations concerns which could impact on the safe operation of a nuclear plant ‑‑ staffing and work stoppages ‑‑ are tempered by the conditions of the licences issued under the Act. Moreover, if specific safety issues were of concern to Parliament, it could legislate with respect to those issues under its valid interest in safety flowing from its jurisdiction over the declared works. This necessary trenching on provincial jurisdiction is more in harmony with the principles of federalism than is the wholesale withdrawing of labour relations from provincial jurisdiction. The conclusion that labour relations is not integral to the exercise of federal jurisdiction is strengthened by s. 92A of the Constitution Act, 1867 . This section expressly provides for provincial jurisdiction over the management of electrical generating sites, including those fuelled by nuclear reactors. Further, Ontario Hydro as a whole is a provincial undertaking. Provincial control over labour relations thus appears to be integral to provincial jurisdiction over the nuclear electrical generating facilities. Finally, for the same reason that labour relations of a federal undertaking must be regulated federally, labour relations of a provincial undertaking should be regulated provincially.
Like its jurisdiction under the declaratory power, Parliament's jurisdiction over atomic energy under the national concern branch of the p.o.g.g. power is not plenary and does not extend to the labour relations between Ontario Hydro and those of its employees employed in the nuclear electrical generating stations. Absent special circumstances, the same balancing principles of federalism apply to both the p.o.g.g. power and the declaratory power. Federal control over labour relations at Ontario Hydro's nuclear facilities is simply not required for the exercise of Parliament's jurisdiction over atomic energy. The labour relations at issue in this case are not part of the single, distinctive and indivisible matter identified as atomic energy.
It follows that it is the Ontario Labour Relations Act which constitutionally applies to the labour relations between Ontario Hydro and those of its employees at its nuclear electrical generating facilities. Had the Canada Labour Code been applicable, however, Ontario Hydro would not have been immune from the operation of federal labour legislation by virtue of interjurisdictional Crown immunity.
Cases Cited
By La Forest J.
Applied: Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; referred to: Commission du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767; Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868; Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board), [1988] 1 S.C.R. 897; City of Montreal v. Montreal Street Railway Co., [1912] A.C. 333; Wilson v. Esquimalt and Nanaimo Railway Co., [1922] 1 A.C. 202; Canadian Pacific Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367; Chamney v. The Queen, [1975] 2 S.C.R. 151; The Queen v. Thumlert (1959), 20 D.L.R. (2d) 335; Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529; Letter Carriers' Union of Canada v. Canadian Union of Postal Workers, [1975] 1 S.C.R. 178; Reference re Legislative Jurisdiction over Hours of Labour, [1925] S.C.R. 505; Re Canada Labour Code, [1992] 2 S.C.R. 50; Shur Gain Division, Canada Packers Inc. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, [1992] 2 F.C. 3; Reference re Waters and Water‑Powers, [1929] S.C.R. 200; Luscar Collieries Ltd. v. McDonald, [1925] S.C.R. 460; Reference re Disallowance and Reservation, [1938] S.C.R. 71; Severn v. The Queen (1878), 2 S.C.R. 70; Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Attorney‑General for Ontario v. Winner, [1954] A.C. 541; R. v. Picard, Ex parte International Longshoremen's Association, Local 375 (1967), 65 D.L.R. (2d) 658; Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115; Reference re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Canadian Industrial Gas & Oil Ltd. v. Government of Saskatchewan, [1978] 2 S.C.R. 545; Central Canada Potash Co. v. Government of Saskatchewan, [1979] 1 S.C.R. 42; British Columbia Power Corp. v. Attorney‑General of British Columbia (1963), 44 W.W.R. 65; Re Tank Truck Transport Ltd. (1960), 25 D.L.R. (2d) 161 (H.C.), aff'd [1963] 1 O.R. 272 (C.A.); Reference re Anti‑Inflation Act, [1976] 2 S.C.R. 373; R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; Pronto Uranium Mines Ltd. v. Ontario Labour Relations Board, [1956] O.R. 862; Denison Mines Ltd. v. Attorney‑General of Canada, [1973] 1 O.R. 797; Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3; Alberta Government Telephones v. Canada (Canadian Radio‑television and Telecommunications Commission), [1989] 2 S.C.R. 225.
By Lamer C.J.
Considered: Pronto Uranium Mines Ltd. v. Ontario Labour Relations Board, [1956] O.R. 862; referred to: Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868; Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board), [1988] 1 S.C.R. 897; Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529; Northern Telecom Canada Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733; Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115; R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; Alberta Government Telephones v. Canadian Radio‑television and Telecommunications Commission, [1985] 2 F.C. 472; Reference re Upper Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; Central Canada Potash Co. v. Government of Saskatchewan, [1979] 1 S.C.R. 42.
By Iacobucci J. (dissenting)
The King v. Eastern Terminal Elevator Co., [1925] S.C.R. 434; Bell Canada v. Quebec (Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868; Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board), [1988] 1 S.C.R. 897; Commission de transport de la Communauté urbaine de Québec v. Canada (National Battlefields Commission), [1990] 2 S.C.R. 838; Reference re Waters and Water‑Powers, [1929] S.C.R. 200; The Queen v. Thumlert (1959), 20 D.L.R. (2d) 335; Quebec Railway Light & Power Co. v. Town of Beauport, [1945] S.C.R. 16; Commission du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767; Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529; Chamney v. The Queen, [1975] 2 S.C.R. 151; Shur Gain Division, Canada Packers Inc. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, [1992] 2 F.C. 3; General Motors of Canada Ltd. v. City National Leasing, [1989] 1 S.C.R. 641; Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753; R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Citizens Insurance Co. of Canada v. Parsons (1881), 7 App. Cas. 96; Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Toronto Electric Commissioners v. Snider, [1925] A.C. 396; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115; Reference re Anti‑Inflation Act, [1976] 2 S.C.R. 373; Pronto Uranium Mines Ltd. v. Ontario Labour Relations Board, [1956] O.R. 862; Central Western Railway Corp. v. U.T.U., [1989] 2 F.C. 186.
Statutes and Regulations Cited
Act to amend the Act incorporating "The Bell Telephone Company of Canada", S.C. 1882, c. 95, s. 4.
Atomic Energy Control Act, R.S.C., 1985, c. A‑16 , preamble, ss. 9 (b), 18 .
Atomic Energy Control Regulations, C.R.C. 1978, c. 365, ss. 7(2), (3), 8, 9(2), 11(1), 13(1), 17, 27, 28.
Bell Canada Act, S.C. 1987, c. 19, s. 5 .
Canada Labour Code, R.S.C., 1985, c. L‑2, ss. 2 "federal work, undertaking or business", 2(h), 4.
Cape Breton Development Corporation Act, R.S.C., 1985, c. C‑25, s. 35 .
Constitution Act, 1867, ss. 55 , 56 , 57 , 90 , 91 , 91(29) , 92(10) , (13) , (16) , 92A(1) (c), (6) .
Constitution Act, 1982, s. 50 .
Labour Relations Act, R.S.O. 1980, c. 228.
Labour Relations Act, R.S.O. 1990, c. L.2.
Power Corporation Act, R.S.O. 1990, c. P.18.
Treaty on the Non‑Proliferation of Nuclear Weapons, Can. T.S. 1970 No. 1, Art. III.
Authors Cited
Adams, George W. Canadian Labour Law, 2nd ed. Aurora, Ont.: Canada Law Book, 1993 (loose‑leaf).
Beatty, David M. Putting the Charter to Work: Designing a Constitutional Labour Code. Kingston: McGill‑Queen's University Press, 1987.
Brun, Henri, et Guy Tremblay. Droit constitutionnel, 2e éd. Cowansville: Yvon Blais, 1990.
Cairns, Robert D., Marsha A. Chandler and William D. Moull. "Constitutional Change and the Private Sector: The Case of the Resource Amendment" (1986), 24 Osgoode Hall L.J. 299.
Csik, B. J. "International Guidance on the Qualifications of Nuclear Power Plant Operations Personnel". In Operational Safety of Nuclear Power Plants, vol. II. Vienna: International Atomic Energy, 1984, 315.
Hanssen, Kenneth. "The Federal Declaratory Power Under the British North America Act" (1968‑69), 3 Man. L.J. 87.
Hogg, Peter W. Constitutional Law of Canada, vol. 1, 3rd ed. (Supplemented). Scarborough, Ont.: Carswell, 1992 (loose‑leaf).
Hogg, Peter W. "The Charter of Rights and American Theories of Interpretation" (1987), 25 Osgoode Hall L.J. 87.
IAEA Yearbook 1992. Vienna: International Atomic Energy Agency, 1992.
La Forest, Gérard V., and Associates. Water Law in Canada: The Atlantic Provinces. Ottawa: Information Canada, 1973.
Lajoie, Andrée. Le pouvoir déclaratoire du Parlement: Augmentation discrétionnaire de la compétence fédérale au Canada. Montréal: Presses de l'Université de Montréal, 1969.
Laskin's Canadian Constitutional Law, vol. 1, 5th ed. By Neil Finkelstein. Toronto: Carswell, 1986.
Moull, William D. "The Legal Effect of the Resource Amendment ‑‑ What's New in Section 92A ". In J. Peter Meekison, Roy J. Romanow and William D. Moull, Origins and Meaning of Section 92A : The 1982 Constitutional Amendment on Resources. Montréal: Institute for Research on Public Policy, 1985, 33.
APPEALS from a judgment of the Ontario Court of Appeal (1991), 1 O.R. (3d) 737, 43 O.A.C. 184, 77 D.L.R. (4th) 277, 91 CLLC {PP} 14,014, setting aside a judgment of the Divisional Court (1989), 69 O.R. (2d) 268, 33 O.A.C. 302, 60 D.L.R. (4th) 542, 89 CLLC {PP} 14,044, quashing a decision of the Ontario Labour Relations Board, [1988] OLRB Rep. Feb. 187. Appeals dismissed, Sopinka, Cory and Iacobucci JJ. dissenting.
Neil Finkelstein, Jeffrey W. Galway and George Vegh, for Ontario Hydro.
R. Ross Wells and Christopher M. Dassios, for CUPE ‑‑ C.L.C. Ontario Hydro Employees Union, Local 1000.
Kathleen A. MacDonald, for the respondent the Ontario Labour Relations Board.
Paul J. J. Cavalluzzo, for the respondent Society of Ontario Hydro Professional and Administrative Employees.
Eric A. Bowie, Q.C., Lewis E. Levy, Q.C., and Roslyn J. Levine, for the respondent the Attorney General of Canada.
M. Philip Tunley and John Terry, for the intervener the Attorney General for Ontario.
Alain Gingras and André Couture, for the intervener the Attorney General of Quebec.
Bruce Judah, for the intervener the Attorney General for New Brunswick.
The following are the reasons delivered by
Lamer C.J. --
I. Introduction
I have read with interest the thorough and thoughtful reasons of my colleague, Justice Iacobucci, and although I agree with much of his analysis of the law applicable to these appeals, I cannot, with respect, agree with his disposition of these appeals. Although there are two appeals before the Court, they are in substance one, and I shall refer to the proceedings herein as "the appeal".
I agree with Iacobucci J. that Parliament's legislative jurisdiction over works such as nuclear generating stations, whether it arises pursuant to a declaration under s. 92(10) (c) of the Constitution Act, 1867 , or pursuant to Parliament's power under s. 91 of that Act to make laws for the peace, order and good government of Canada (the "p.o.g.g." power), is not "plenary". Rather, federal jurisdiction over such works must be carefully described to respect and give effect to the division of legislative authority on which our federal constitutional scheme is based. Under s. 92(10)(c), I fully agree with Iacobucci J. that "Parliament's jurisdiction over a declared work must be limited so as to respect the powers of the provincial legislatures but consistent with the appropriate recognition of the federal interests involved" (p. 404). The p.o.g.g. power is similarly subject to balancing federal principles, limiting the federal government's p.o.g.g. jurisdiction to "the national concern aspects of atomic energy . . . namely the fact of nuclear production and its safety concerns" (p. 425).
However, I cannot agree with Iacobucci J.'s assessment of how this balance ought to be struck; specifically, I am of the view that the power to regulate the labour relations of those employed on or in connection with facilities for the production of nuclear energy is integral to Parliament's declaratory and p.o.g.g. jurisdictions. I reach this conclusion through an examination of the national and international regulatory framework applicable to the production of nuclear energy, previous decisions of this and other courts respecting constitutional jurisdiction over labour relations, and the effect of s. 92A(1) (c) of the Constitution Act, 1867 .
II. Analysis
A. Regulatory Framework
(a) The Atomic Energy Control Act
The production of nuclear energy in Canada is regulated by legislation (the Atomic Energy Control Act, R.S.C., 1985, c. A-16 (the "AECA ")), regulations made under that Act, and licences granted by the Atomic Energy Control Board pursuant to that Act and the regulations.
The declaration in s. 18 AECA , that "[a]ll works and undertakings constructed (a) for the production, use and application of atomic energy ... are, and each of them is declared to be, works or a work for the general advantage of Canada" is the primary indication of Parliament's interest in the production of atomic energy. The scope of that interest is suggested by the preamble to the AECA , which states:
Whereas it is essential in the national interest to make provision for the control and supervision of the development, application and use of atomic energy and to enable Canada to participate effectively in measures of international control of atomic energy that may hereafter be agreed on;
I cannot, with respect, agree that the preamble does not reveal a federal interest in regulating labour relations. Rather, I think that stating Parliament's interest in the "control and supervision of the . . . application and use of atomic energy" directly implicates regulation of the activities involved in that application and use, which in turn involves the regulation of those employed in producing nuclear power. In fact, Iacobucci J. agrees at p. 416 that "the uniquely federal aspect of Ontario Hydro's nuclear electrical generating stations is the fact of nuclear production, with all its attendant safety, health and security concerns" (emphasis added). With respect, I believe that all of the concerns attendant on the production of nuclear energy arise in the regulation of labour relations at nuclear production facilities, as is shown by the way in which the general content of the preamble is particularized in the AECA and its regulations.
As the discussion below of the regulations made under the AECA makes clear, the Atomic Energy Control Board is given broad regulation-making power, through which the production of nuclear energy is primarily controlled and supervised. Section 9 (b) AECA , for example, allows the Board to make regulations "for developing, controlling, supervising and licensing the production, application and use of atomic energy". It is through this regulation-making power that the Board has made clear the federal government's interest in labour relations matters affecting nuclear energy, and to which I shall now turn.
(b) The Atomic Energy Control Regulations
The Atomic Energy Control Regulations, C.R.C. 1978, c. 365, evince a strong federal interest in the employment of the men and women who operate Ontario Hydro's nuclear production facilities. Although none of the provisions seek to regulate the collective bargaining process, or refer explicitly to terms or conditions which must be included in collective agreements covering such workers, the regulations do show in a more general way that Parliament's interest in health, safety and security at nuclear production facilities is in large part an interest in the employment of those persons who operate such facilities.
An application made to the Atomic Energy Control Board, under s. 7(2) in Part I of the regulations, for a licence to, inter alia, use any prescribed substance must, if the Board so requires, set out "(g) a description of the qualifications, training and experience of any person who is to use the prescribed substance". The licence granted by the Board may include conditions respecting measures to be taken to protect against excessive doses of radiation (s. 7(3)(a)), instruction to be given to workers respecting radiation hazards and procedures (s. 7(3)(c)), measures to be taken against theft, loss or unauthorized use of prescribed substances (s. 7(3)(f)), and the qualifications, training and experience of anyone who is to use or supervise the use of prescribed substances (s. 7(3)(g)).
Similar provisions govern the licensing procedure for operating a nuclear facility described in Part II of the regulations.
Where a licence has been issued, records must be kept of the names of all persons involved in the use and handling of prescribed substances, doses of radiation received by any person, and medical examinations required under the regulations (Part III, s. 11(1)).
Part IV of the regulations concerns security, and prohibits unauthorized disclosure of various types of information about prescribed substances and nuclear facilities (s. 13(1)). Furthermore, the Board may designate "protected places" for secrecy into which unauthorized persons may not enter.
Part V of the regulations concerns health and safety, and s. 17 requires radiation dosage notification and examination procedures for atomic radiation workers, as well as prohibiting some persons from working as atomic radiation workers. Indeed, Part V is almost exclusively concerned with employees at nuclear facilities such as Ontario Hydro's.
Part VI, the general part of the regulations, imposes several employment-related obligations on licensees, including providing appropriate safety equipment and clothing, and providing adequate warning to any person (which would include employees) who may be affected by an escape of radioactive material. Employees are under similar obligations to observe safety procedures and use safety equipment and clothing.
I think that it can be foreseen how these stringent and detailed obligations of licensees such as Ontario Hydro might be reflected in collective agreements between the management and employees of nuclear facilities, especially where dosage monitoring, notification, and protection are concerned. The various restrictions on who may be employed at the facility might be incorporated into the collective agreement. The Atomic Energy Control Board's training and experience requirements might influence the negotiation and drafting of promotion and seniority clauses. An employee's failure to use the required safety equipment, or to observe required safety procedures, could be the subject of discipline governed by the collective agreement. The labour relations board might have to distinguish between a legitimate plant shut-down and an illegal lock-out during a labour dispute. The requirement that the collective agreement conform to the regulatory requirements of the statute, regulations and licence might be relevant to proceedings to determine whether the parties were bargaining in good faith. Other examples of the mutual concerns in the regulations and most collective agreements are not difficult to anticipate.
I draw these parallels not to suggest that the regulations will dictate the substantive content of collective agreements for those employed on or in connection with nuclear energy production facilities, but rather to show that the matters of concern to management and labour in drafting and negotiating a collective agreement are reflected in the regulations, and that the interests in both cases are quite similar. As is the case with the AECA , Parliament's regulation of nuclear facilities, under the concerns of health, safety and security, includes a strong employment and labour relations component.
(c) Licences
One of the licences described in the AECA and the regulations has been put before this Court (Reactor Operating Licence No. 10/86, for the Bruce Nuclear Generating Station "A").
Article A.A.3 sets out detailed staffing requirements, including written Atomic Energy Control Board approval of certain employees, minimum staffing requirements, and notice of staffing changes. Article A.A.19 requires the prompt reporting of any attempted or actual breaches of security, threats or sabotage (sub-article (iv)), and of "actual or impending instances of industrial disputes or civil demonstrations which could affect the safety or security of the nuclear facility" (sub-article (v)), and "any event which constitutes or reveals a violation of the conditions of this licence, the Physical Security Regulations or the Atomic Energy Control Regulations" (sub-article (ix)). This last sub-article covers all of the personnel requirements of the regulations and licence described above.
It is said that the lack of any imposition of federal control over labour disputes in the licence indicates that such control is not integral to federal jurisdiction. However, with respect, I believe that what demonstrates that jurisdiction over labour relations is integral to federal jurisdiction over the production of energy power is not an actual exercise of that jurisdiction (indeed, no such jurisdiction has been exercised in this case, as I discuss below), but a commonality of interests and concerns between the existing federal regulatory framework, and the matters to which labour relations legislation is addressed. The licence provisions do indicate a strong and compelling federal interest in labour relations matters at nuclear facilities, not the least of which is the reporting of potential labour disturbances because of their serious health, safety and security implications. It appears to me that the reporting of labour disturbances to the Atomic Energy Control Board, mandated by the licence, in fact dovetails neatly with federal regulation and supervision of the disturbance itself.
Therefore, I think that the domestic regulation of the production of nuclear energy demonstrates a strong federal interest in the employment of those employed on or in connection with facilities for the production of nuclear energy. Where those employees are unionized, that federal interest extends to the labour relations regime which governs the relationship between the employer and the employees, through their bargaining agent.
(d) International Regulation
The production of nuclear energy is also closely monitored and regulated at the international level, primarily by the International Atomic Energy Agency ("IAEA") and the treaties and agreements negotiated through the IAEA to which Canada is a party. The IAEA is mainly concerned with the promotion of the peaceful and safe use of atomic energy, and the prevention of the diversion of nuclear materials to non-peaceful uses.
Many of the security provisions affecting employees in the regulations described above (especially those in Part IV), and the licences under which nuclear facilities operate, can be traced to Canada's international obligations in the field of nuclear energy. Canada is a "non-nuclear weapon"