Northern Telecom v. Communication Workers

Northern Telecom v. Communication Workers
Collection
Supreme Court Judgments
Date
1983-06-23
Report
[1983] 1 SCR 733
Case number
16652, 16682
Judges
Ritchie, Roland Almon; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; McIntyre, William Rogers; Chouinard, Julien; Lamer, Antonio
On appeal from
Federal Court of Appeal
Subjects
Constitutional law
Notes
SCC Case Information: 16682, 16652
Decision Content
SUPREME COURT OF CANADA
Northern Telecom v. Communication Workers, [1983] 1 S.C.R. 733
Date: 1983-06-23
Northern Telecom Canada Limited and Canadian Union of Communication Workers
Appellants;
and
Communication Workers of Canada and the Attorney General of Canada Respondents;
and
The Canada Labour Relations Board, the Attorney General of Quebec and the Attorney General of Ontario Third parties.
File Nos.: 16682 and 16652.
1982: June 8 and 9; 1983: June 23.
Present: Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.
ON APPEAL FROM THE FEDERAL COURT OF APPEAL
Constitutional law — Labour relations — Certification — Jurisdiction — Whether manufacturer's employees installing the product in federally controlled telecommunications network under federal or provincial jurisdiction — Canada Labour Code, R.S.C. 1970, c. L-1, s. 108 — Constitution Act, 1867, ss. 91(29) , 92(10) (a),(c), 101 .
Constitutional law — Courts — Legislative authority — Validity of Federal Court of Appeal's power to consider question referred by Canada Labour Relations Board decision — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(1),(4).
Appellant and respondent trade unions both sought certification from the Canada Labour Relations Board, under Part V of the Canada Labour Code, as bargaining agent for installers employed by Northern Telecom. The great bulk of the installers' work was physically installing sophisticated telecommunications equipment produced by Northern Telecom—an affiliate of Bell Canada—into Bell Canada's on-going and federally regulated telecommunications network. Bell Canada, in turn, bought most of its equipment from Northern Telecom. The installation process demanded a high degree of coordination between the two companies. The Board decided that the installers did not come within the federal labour jurisdiction, but instead of dismissing the applications, made a reference on a constitutional question
[page 734]
to the Federal Court of Appeal under s. 28(4) of the Federal Court Act. That Court found that the Canada Labour Relations Board had jurisdiction to grant certification. At issue here is whether Northern Telecom's installers should be assigned to the federal labour jurisdiction, or to the provincial jurisdiction as were the bulk of Northern Telecom's other employees. Also at issue is whether or not the Federal Court of Appeal had jurisdiction to entertain the constitutional question put to it.
Held (Beetz and Chouinard JJ. dissenting): The appeal should be dismissed.
Per Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ.: Section 28(4) of the Federal Court Act is intra vires. Here, that Court was in the same position as any other statutory court and therefore could determine a constitutional issue arising as a preliminary question in the review of an administrative action based on a law of Canada.
Per Ritchie, Estey, McIntyre and Lamer JJ.: The labour relations of Telecom's installers fell under federal jurisdiction. The macro-relationship between the installers' work in the subsidiary operation (Telecom) and the functioning of the federal core operation (Bell) were of prime concern here and not the micro-differences between Telecom's installers and their Bell counterparts. The installers' work was logically a step in the expansion or reconstruction of an operating telecommunications network for the switching equipment was in its finished state on delivery and yet the network was not complete until the equipment was installed. Then too, the installers' daily work routines were almost completely integrated with the up-grading of the telecommunications system in relation to its ongoing operation and the work was primarily done on Bell's premises. The corporate relationship of Bell and Telecom did not bear on the outcome here. The fact that the employment relationship extended over five provinces, while it did not bear on the constitutional outcome, fed the result.
Per Dickson J.: The work of Telecom's installers fell within the federal Parliament's jurisdictional competence. Functionally separate from Northern Telecom's other operations, this work was performed primarily on Bell Canada's premises and formed an integral part of
[page 735]
Bell Canada's federally regulated telecommunications network. The parent/subsidiary relationship existing between Bell Canada and Northern Telecom made the concept of integration all the stronger. So too, did the fact that the great bulk of the installers' work was performed for Bell Canada and the fact that the installation of new equipment in an on-going operation demanded a great deal of coordination between the companies. This work could not be considered as either maintenance or construction work in the sense used to place such work within the provincial jurisdiction.
Per Beetz and Chouinard JJ., dissenting: The Canada Labour Relations Board correctly decided that jurisdiction over the installers lay with the province. The construction and installation of certain components of the federal undertaking remained distinct from the operation of the undertaking. Provincial competence is the rule, and federal competence the exception, in the field of labour relations and the onus fell on the party seeking to establish the exception. In this "nicely balanced" case, the general rule of provincial competence should be the deciding factor and not the fact that the installers' work was on-going and indispensible to the operation of the federal undertaking.
[Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115, affirming [1977] 2 F.C. 406; In re the Validity of the Industrial Relations and Disputes Investigation Act (the Stevedores' case), [1955] S.C.R. 529, followed; Toronto v. Bell Telephone Co., [1905] A.C. 52; McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654; Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054; Attorney General of Canada v. Law Society of British Columbia (the Jabour case), [1982] 2 S.C.R. 307; Valin v. Langlois (1879), 3 S.C.R. 1; The Queen v. Thomas Fuller Construction Co. (1958) Ltd., [1980] 1 S.C.R. 695; Attorney General of Canada v. Canard, [1976] 1 S.C.R. 170; Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138; Canada Labour Relations Board v. Paul L'Anglais Inc., [1983] 1 S.C.R. 147; Consolidated Distilleries Ltd. v. Consolidated Exporters Corporation Ltd., [1930] S.C.R. 531; The Queen v. Ontario Labour Relations Board, Ex parte Northern Electric Co. Ltd., [1970] 2 O.R. 654; Northern Electric Co. Ltd. v. The Quebec Labour Court, unreported Quebec Court of Appeal decision, number 13,085, January 25, 1972; The Queen v. Ontario Labour Relations Board, Ex parte Dunn, [1963] 2 O.R. 301; Toronto Electric Commissioners v. Snider, [1925] A.C. 396; Attorney-General for Canada v. Attorney-General for Ontario (the Labour Convention case), [1937] A.C. 326;
[page 736]
Letter Carriers' Union of Canada v. Canadian Union of Postal Workers, [1975] 1 S.C.R. 178; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; Canadian Pacific Railway Co. v. Attorney-General for British Columbia (the Empress Hotel case), [1950] A.C. 122; Labour Relations Board of New Brunswick v. Eastern Bakeries Ltd., [1961] S.C.R. 72, referred to.]
APPEAL from a judgment of the Federal Court of Appeal, [1982] 1 F.C. 191, determining a question of law, relating to constitutional jurisdiction, referred by the Canada Labour Relations Board. Appeal dismissed, Beetz and Chouinard JJ. dissenting.
William S. Tyndale, Q.C., for the appellant Northern Telecom Ltd.
Philip Cutler, Q.C., and Pierre Langlois, for the appellant Canadian Union of Communication Workers.
Hélène LeBel and Janet Cleveland, for respondent Communication Workers of Canada.
Walter Nisbet, Q.C., for respondent Attorney General of Canada.
William H. Deverell, for the third party the Canada Labour Relations Board.
John Cavarzan, Q.C., for the third party the Attorney General of Ontario.
Jean-K. Samson and Jean-François Jobin, for the third party the Attorney General of Quebec.
The judgment of Ritchie, Estey, McIntyre and Lamer JJ. was delivered by
ESTEY J.—These proceedings originated with the difficulty of the proper assignment of the labour relations of certain employees of the appellant, Northern Telecom Canada Limited (herein-after referred to as "Telecom"), to either the federal or provincial jurisdiction. By applications made in May and September 1978 the appellant and respondent trade unions respectively sought certification under Part V of the Canada Labour Code, R.S.C. 1970, c. L-1, as the bargaining agent
[page 737]
for a unit composed of all installers employed by Telecom, Eastern Region.
The Eastern Region with respect to which certification is sought is all the operations relating to installers of Telecom carried on east of a vertical line drawn through Brighton in eastern Ontario. The Eastern Region extends easterly from this line through Quebec and across the Atlantic provinces. The Western Region, with which we are not concerned, includes installers employed by Telecom who perform like services west of the Brighton line.
An installer is a highly qualified employee who is engaged in the physical installation of the products of Telecom and its affiliated companies (and occasionally the equipment made by others) in the telephone network operated by Bell Canada (hereinafter referred to as "Bell") and in the facilities operated by other customers of Telecom. It is conceded that Bell and its telephone system is a federal work or undertaking, having been declared to be so in 1882 by the Parliament of Canada in 1882 (Can.), c. 95, s. 4, pursuant to s. 92(10) (c) of the Constitution Act, 1867 . The Privy Council in Toronto v. Bell Telephone Co., [1905] A.C. 52, found the undertaking of the company to fall within the federal orbit under s. 92(10)(a) and s. 91(29) of the Constitution Act.
The appellant, Canadian Union of Communication Workers (hereinafter referred to as the "CUCW"), is the bargaining agent for the installers of the appellant Telecom in the Eastern Region pursuant to original certification in 1945 under the Quebec labour relations laws and subsequent voluntary recognition in the eastern part of the province of Ontario and in the provinces east of Quebec. The Communication Workers of Canada (hereinafter referred to as the "CWC") represents the installers of Telecom in the Western Region following certification in 1950 by the Ontario Labour Relations Board. The federal Board, after hearing the presentation of the two applications for certification with respect to installers employed
[page 738]
in the Eastern Region, determined that the employees in question did not come within the federal labour jurisdiction, but rather than dismissing the applications, made a reference on a constitutional question to the Federal Court of Appeal pursuant to s. 28(4) of the Federal Court Act of Canada. The Board, after a lengthy unanimous award [reported at (1980), 41 di 44], concluded [at pp. 90-941:
Our appreciation of the totality of the written and verbal evidence adduced leads us to conclude the installers in the eastern region are not employed upon or in connection with a federal work, undertaking or business .... The problem of characterization for constitutional purposes is whether you focus on the installation and testing as the first step in the creation, maintenance and operation of the federal work, undertaking or business or the last step in the manufacture and delivery of specialized (and warranted) products, delivery of which is accepted when it is established they are functioning properly. The colour of the valley depends on whether you view it from the sunny or shaded slope.
[…]
We have considered the test as expressed by the Supreme Court of Canada and as formulated by us for Part V of the Canada Labour Code in Marathon Realty Company Limited, supra, and have concluded the labour relations of these employees is provincially regulated. For labour relations purposes as well as constitutional law purposes we view the installers' activity as manufacturing related more so than an integral part of the area within federal competence. There is no doubt the system cannot operate without the equipment installed by these employees. It can also be said it could not operate without the phone book. Since 1970 that separate function has been treated as within the provincial jurisdiction.
[…]
Any nagging doubts we have in this case, we have resolved in favour of the implicit constitutional presumption in favour of provincial jurisdiction.
[…]
We postpone making any final decision with respect to these two certification applications until we learn of the Federal Court of Appeal's determination on our jurisdiction.
[page 739]
The Board then issued an order in which the following question was referred to the Federal Court of Appeal:
Does the Board have constitutional jurisdiction to grant an application for certification with respect to the employees sought to be represented in these two applications for certification?
This question is propounded by the Board purportedly pursuant to s. 28(4) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10:
28....
(4) A federal board, commission or other tribunal to which subsection (1) applies may at any stage of its proceedings refer any question or issue of law, of jurisdiction or of practice and procedure to the Court of Appeal for hearing and determination.
The Federal Court of Appeal [at [1982] 1 F.C. 191] answered the question in the affirmative. Chief Justice Thurlow found the Court had jurisdiction to receive this reference from the Board and to answer the question put, whether it came up through s. 28(4) of the Federal Court Act or whether by judicial review under subs. (1) of that section. All parties agreed in the Federal Court (and indeed here) that Bell's telecommunication system is a federal undertaking. The installers of Telecom are not engaged in the manufacture of the Telecom equipment in question but only in its installation, and 80 per cent of this work is carried out on Bell premises. Thurlow C.J. concluded, therefore, [at p. 202] that they are "... participating in the carrying on of the federal undertaking itself ...." Ryan J. concurred with the Chief Justice and also with Le Dain J. who likewise answered [at p. 203] the question affirmatively because:
....the close functional relationship of the work of the installers to the operation of the Bell undertaking tips the balance in favour of federal jurisdiction . . . . But the installation is related in a very close and complex manner to the operation of the telecommunications equipment which is the heart of the Bell undertaking ....
….For this reason I think they must be regarded as employed upon or in connection with the operation of the Bell undertaking.
[page 740]
Jurisdiction of the Federal Court of Appeal to Entertain the Referred Question
The Federal Court Act establishing the Federal Court of Appeal finds its base in s. 101 of the Constitution Act, 1867 which empowers Parliament to establish ". . . Courts for the better Administration of the Laws of Canada". As has been stated by this Court on many occasions, the expression "Laws of Canada" refers to existing federal legislation, regulations and federal common law, and not to potential legislation within federal constitutional competence: McNamara Construction (Western) Ltd. v. The Queen, [1977] 2 S.C.R. 654 and Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054. With issues arising under s. 18 of the Federal Court Act, relating as it does to the jurisdiction of the Trial Division and its relationship to the provincial superior courts, we are not here concerned. Section 28 of that Act accords to the Federal Court of Appeal jurisdiction in judicial review of orders of federal boards, as defined in the Act and which includes the Canada Labour Relations Board with which we are here concerned, under subs. (1). By subsection (4), supra, a federal board may refer ". . . any question or issue of law, of jurisdiction or of practice and procedure to the Court of Appeal for hearing and determination".
Chief Justice Thurlow, in the Court below, concluded that the jurisdiction of the Court of Appeal, for the purposes of these proceedings, was the same whether the issue arose by way of review under subs. (1) or by a question raised under subs. (4). Whether this be so or not it is abundantly clear that the question posed by the Board raises a question of law or jurisdiction and clearly invokes the procedure authorized by subs. (4). The question is whether subs. (4) may properly be included in the Federal Court Act by Parliament.
In Jabour (Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307), this Court was concerned with the competency of the provincial courts, faced with the purported
[page 741]
exclusivity of the Federal Court under s. 18 of the Federal Court Act, to entertain proceedings challenging the constitutionality or constitutional application of a federal statute. This Court there found the historic jurisdiction of the provincial superior court undisturbed by federal legislation which removed the judicial review by such court of administrative action taken by a federal board pursuant to a federal statute.
We are here faced with the converse challenge, that is, the competence of the Federal Court to determine the constitutionality of federal legislation, either inherent or in its application in given circumstances. A part of the reasoning in the Jabour case, at p. 328, deals analogically with this converse:
At the same time it would leave the provincially-organized superior courts with the invidious task of execution of federal and provincial laws, to paraphrase the Valin case [Valin v. Langlois (1879), 3 S.C.R. 1] while being unable to discriminate between valid and invalid federal statutes so as to refuse to "execute" the invalid statutes .... Moreover, it would amount to an attempt by Parliament to grant exclusive jurisdiction to the Federal Court to administer the "laws of Canada" while the validity of those laws remained unknown.
It is inherent in a federal system such as that established under the Constitution Act, that the courts will be the authority in the community to control the limits of the respective sovereignties of the two plenary governments, as well as to police agencies within each of these spheres to ensure their operations remain within their statutory boundaries. Both duties of course fall upon the courts when acting within their own proper jurisdiction. The Jabour case, supra, was concerned with the superior courts of general jurisdiction in the provinces, but the same principles apply to courts of subordinate jurisdiction when they are acting within their limited jurisdiction as described by their constituting statute. Such courts must, in the application of the laws of the land whether they be federal or provincial statutes, determine, where the issue arises, the constitutional integrity of the measure in question. Such a court of limited
[page 742]
jurisdiction must, of course, be responding to a cause properly before it under its statute.
This is the position of the Federal Court in these proceedings. It is a statutory court. Its parent statute clearly authorizes the proceeding with which it is here engaged. Its parent statute in turn is valid under the Constitution, at least so far as the existence of the court is concerned. The jurisdictional challenge narrows down to whether Parliament may properly include subs. (4) in s. 28 under which subsection the constitutional or jurisdictional question is here framed and advanced. This question was sensed or anticipated in Valin v. Langlois (1879), 3 S.C.R. 1, per Taschereau J. at pp. 74 and 76:
ln my opinion, for the administration of its laws, Parliament can either have recourse to the Provincial Courts already in existence, or create new courts, as it chooses.
... I see in the B.N.A. Act many instances where Parliament can alter the jurisdiction of the Provincial Civil Courts. For instance, I am of opinion, that Parliament can take away from the Provincial Courts all jurisdiction over bankruptcy and insolvency, and give that jurisdiction to Bankruptcy Courts established by such Parliament; I also think it clear, that Parliament can say, for instance, that all judicial proceedings on promissory notes and bills of exchange shall be taken before the Exchequer Court or before any other Federal Court. This would be certainly interfering with the jurisdiction of the Provincial Courts. But, I hold that it has the power to do so quoad all matters within its authority.
Pigeon J., in The Queen v. Thomas Fuller Construction Co. (1958) Ltd., [1980] 1 S.C.R. 695, in discussing another aspect of the nature of the jurisdiction of the Federal Court, stated at p. 713:
It must be considered that the basic principle governing the Canadian system of judicature is the jurisdiction of the superior courts of the provinces in all matters federal and provincial. The federal Parliament is empowered to derogate from this principle by establishing additional courts only for the better administration of the laws of Canada.
[page 743]
Closer to the bone of this problem is the observation by Beetz J. in Attorney General of Canada v. Canard, [1976] 1 S.C.R. 170, at p. 216:
Once it is conceded that the Minister has jurisdiction to appoint an administrator, the exercise of this jurisdiction can only be reviewed in accordance with the Indian Act and the Federal Court Act and not by the Courts of Manitoba. It is true that the latter's jurisdiction had not been questioned by the appellants, presumably because the action taken by the respondent challenged the constitutional validity and the operation of the Indian Act and the Manitoba Courts had jurisdiction to adjudicate upon this issue as well as upon appellants' counterclaim. The Courts of Manitoba could not on the other hand hear an appeal from the Minister's decision or otherwise review it.
Although speaking in another context, Chief Justice Laskin has written: "The question of the constitutionality of legislation has in this country always been a justiciable question." See Thorson v. Attorney General of Canada, [1975] 1 S.C.R. 138, at p. 151. Here the questioned activity of the Federal Court is simply its right to determine, under its statute, the constitutionality of a federal statute where that issue arises in the course of a proceeding which has arisen under an admittedly valid proceeding conducted before a federal board as defined in the Federal Court Act and under an admittedly valid federal statute, the Canada Labour Code, supra. That the Federal Parliament can direct the review of the actions of a federal board to the Federal Court is no longer in doubt in our law. Whether the action of the Board can be questioned by a proceeding under s. 28(1) or (4) would not appear to be of much importance; the constitutional propriety of the Board action, actual or proposed, may arise in each case. The efficiency of the administration of justice is promoted by the contemplation of the issue under subs. (4) rather than reviewing the issue as a fait accompli under subs. (1). If, in the operations of subs. (1), Parliament can require the Federal Court to review the actions of the Canada Labour Relations Board, and if in the course of that review the Court must determine as a condition precedent the validity of the Board's action from a constitutional viewpoint,
[page 744]
it would seem to matter little that the same question with the same ancillary steps attached is raised in futuro rather than in retrospect. It is not, therefore, in my view, a violation of the parliamentary limits under s. 101 of the Constitution Act to include subs. (4) in s. 28.
It follows from Canard, supra, and more recently from the decision of this Court in Canada Labour Relations Board v. Paul L'Anglais Inc., [1983] 1 S.C.R. 147 that the same constitutional question might be brought before a provincial court by its appropriate process. A question of administrative review by the Federal Court under the Federal Board's parent statute, which raises no constitutional question, could not be so referred to the provincial superior court. The nexus between the Federal Court and the constitutional issue here arising is the proceeding under the Federal Court Act which in turn arises from the patently valid proceedings of the Board conducted under the admittedly valid provisions of the Canada Labour Code. In these surrounding circumstances the Federal Court is in the same position as any statutory court, provincial or federal, and therefore can determine the constitutional issue arising as a threshold question in the review of the administrative action in issue.
To conclude otherwise would, in paraphrase of the Jabour decision, supra, leave a federal court established "for the better administration of the laws of Canada" in the position of having to participate in the execution and administration of such laws without the authority, let alone the duty, of first assuring itself that the statute before the Court is a valid part of the "laws of Canada". Anglin C.J.C., in Consolidated Distilleries Ltd. v. Consolidated Exporters Corporation Ltd., [1930] S.C.R. 531, at p. 534, said that the expression "laws of Canada" must mean " ... laws enacted by the Dominion Parliament and within its competence". I read the reasons of the Chief Justice of
[page 745]
this Court in McNamara, supra, and Quebec North Shore, supra, as being to the same effect.
One final note should be added to this jurisdictional discussion. The Constitution Act, 1867 , as amended, is not of course a "law of Canada" in the sense of the foregoing cases because it was not enacted by the Parliament of Canada. The inherent limitation placed by s. 101 , supra, on the jurisdiction which may be granted to the Federal Court by Parliament therefore might exclude a proceeding founded on the Constitution Act. That may be so, as was discussed in the Jabour judgment, supra, but we are here concerned with a proceeding that originates in the Canada Labour Code and in which is raised a question as to the reach and applicability of that federal statute under the Constitution, in the circumstances disclosed in the record of the C.L.R.B. This aspect of the appeal is dealt with by the Attorney General of Quebec as an intervener in his factum as follows:
[TRANSLATION] ... the Federal Court of Appeal is competent to decide a question of law, even of a constitutional nature, when that question is raised, as it is in the case at bar, in connection with a proceeding or principal action based on the application of federal law.
and with which I respectfully agree.
In my view, therefore, subs. (4) is validly incorporated in s. 28 by Parliament in the enactment, the Federal Court Act, and the Federal Court accordingly was acting within its proper constitutional jurisdiction when it answered the question below.
History of this Labour Litigation
Because it will shorten the review required of the evidence taken by the Board to outline some aspects of the origins of this litigation, I now turn to the earlier proceedings undertaken by some or all of these parties in connection with the appropriate labour relations jurisdiction.
[page 746]
A. Eastern Region (with which these proceedings are concerned)
1. 1945: The Quebec Labour Relations Board certified the predecessor to the CUCW as the bargaining agent on behalf of all non-supervisory hourly rated employees of Telecom in the Province of Quebec including the installers.
2. 1945: Telecom and the CUCW entered into a collective agreement in which Telecom recognized the CUCW as the bargaining agent for all installers "whose base point is in the Province of Quebec", which included all installers in the Eastern Region. This is the present status of Eastern Region installers labour relations.
3. 1968: The CWC and the United Steelworkers of America, Local 8001, respectively applied to the Labour Boards of Ontario and Quebec for certification as the bargaining agent for Eastern Region installers in each of these provinces, and each Union intervened in the other Union's proceedings. Telecom and the CUCW objected on constitutional grounds claiming the employees were not subject in their labour relations to provincial jurisdiction. The Ontario Labour Relations Board found the work of the installers in Ontario to be within provincial labour relations jurisdiction. The Quebec authorities reached the same result. Telecom and the CUCW thereupon challenged both the results in court and in both instances succeeded. In Ontario Lacourcière J., then sitting in the High Court of Ontario, found the appropriate jurisdiction over these labour relations to be federal: The Queen v. Ontario Labour Relations Board, Ex parte Northern Electric Co. Ltd., [1970] 2 O.R. 654. The Quebec Court of Appeal in proceedings in evocation came to the same conclusion in Northern Electric Co. Ltd. v. The Quebec Labour Court, unreported decision number 13,085, January 25, 1972.
[page 747]
B. Western Region (with which these proceedings are not directly concerned)
1. 1946: An employees' association failed to achieve certification before the O.L.R.B. but were certified for all employees, including installers, working under the Toronto head office under the Wartime Labour Relations Regulations. This presumably included all the employees in the Western Region.
2. 1950: The CWC replaced the first bargaining agent and the O.L.R.B. certified the CWC as the agent for the installers. Telecom apparently raised no constitutional issue.
3. 1958: The CWC applied to the Canada Labour Relations Board for certification as the bargaining agent for all installers employed in the Western Region. The C.L.R.B. found that it did not have jurisdiction.
4. 1963: An employees' association had been certified by the O.L.R.B. in 1961 to represent all employees in Telecom's manufacturing facilities in Bramalea, Ontario. No mention is made of installers in this bargaining unit. The High Court of Ontario refused to quash the O.L.R.B. decision on the grounds that the manufacturing operations, there the subject of the proceedings, were properly within the field of provincial labour relations; R. v. Ontario Labour Relations Board, Ex parte Dunn, [1963] 2 O.R. 301.
5. 1970: The High Court of Ontario (Lacourcière J.) found the O.L.R.B. to be without jurisdiction over the installers' labour relations (supra, item 3, Eastern Region).
C. Eastern and Western Regions after 1971
1. In the Eastern Region, Telecom and the CUCW continued to conduct their labour relations pursuant to the Quebec labour relation laws.
2. In the Western Region, in 1972, Telecom and the CWC recognized the federal jurisdiction by written agreement.
[page 748]
3. 1974: CWC applied to the Canada Labour Relations Board to be certified to represent the supervisory installers in the Western Region. The Board found it had jurisdiction. Telecom appealed and failed in the Federal Court of Appeal. Northern Telecom Ltd. v. Communications Workers of Canada, [1977] 2 F.C. 406; and in this Court, [1980] 1 S.C.R. 115. Both courts considered that the record before them did not make a decision possible on this important question of jurisdiction.
There is, therefore, no evidence upon which this Court can find that the Board acted beyond its jurisdiction.
[…]
It might be added that, in my view, the facts raise a very difficult question from a jurisdictional and constitutional point of view, upon which this Court should not make a pronouncement in the absence of a full exploration of the facts relating to the jurisdictional and constitutional question as such. [Per Jackett C.J., at pp. 409-10.]
The judgment in this Court was given by Dickson J. who wrote at pp. 139 and 141:
On the evidence in the record, this Court is simply not in a position to resolve the important question of constitutional jurisdiction over the labour relations of the employees involved in the installation department of Telecom.
[…]
I think we must leave that question to another day and dismiss the appeal simply on the basis that the posture of the case is such that the appellant has failed to show reversible error on the part of the Canada Labour Relations Board.
4. Telecom objected to the Canada Labour Relations Board's dealing with the two applications for certification filed in 1978 by the CUCW and the CWC, which give rise to these proceedings, on the grounds of a lack of constitutional jurisdiction in the Board.
5. The CUCW applied to the Quebec Labour Relations Board for certification as the bargaining agent for the installers, some time in 1978-79. Nothing appears in the record as to where this proceeding stands.
[page 749]
6. The parties to the current certification proceedings leading to this appeal, before the C.L.R.B., requested that the Board make a reference to the courts on the question of constitutional jurisdiction. I quote from the unanimous reasons of the Board, [supra, at pp. 71-72]:
The final step is these proceedings in which the Board's jurisdiction is questioned. This is, however, not to be the last step. The parties have informed the Board they wish a determination by a judicial authority. They urged the Board to make a reference of the constitutional issue to the Federal Court of Appeal. The hearing on these cases proceeded on the footing that our decision was only the first step in a new march to the Supreme Court of Canada.
Before turning to the evidence and the findings or conclusions drawn therefrom below, it is necessary to gather together the principles developed in this Court and elsewhere which are applicable in judicial proceedings such as these. As was said by this Court in the Telecom 1980 case, supra, (per Dickson J. at p. 130):
But what is in question here is not the Board's administrative jurisdiction in the classic sense of that term, but whether the jurisdiction given by Parliament to the Canada Labour Relations Board, through s. 108 of the Code, extends to the labour relations of the employees engaged in the work, undertaking or business here at issue, i.e., the installation department of Telecom. The answer to the question posed in the order granting leave must be found, not in the principles of judicial review of administrative action, but in the principles governing the constitutional division of authority over labour relations.
It is by now trite to say that such an appraisal of the place of any given labour relations in Canadian constitutional law starts with the general rule that authority over labour relations is provincial. See Toronto Electric Commissioners v. Snider, [1925] A.C. 396. Indeed it was many years after the Canadian adherence to the Treaty of Versailles and the related treaties and conventions which dealt with these matters, as well as Attorney-General for Canada v. Attorney-General for Ontario (the Labour Convention case), [1937] A.C. 326, that the outlines of the federal presence in the field began to emerge. The first comprehensive
[page 750]
federal regulation of such matters came about during World War II when detailed regulations were promulgated establishing and supporting the operation of the Wartime Labour Relations Board. There followed more detailed federal legislation in the form of The Industrial Relations and Disputes Investigation Act, 1948 (Can.), c. 54, and culminating in the current Canada Labour Code, supra, of which s. 108 and s. 2 are of principal interest on this appeal.
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.
2. In this Act
"federal work, undertaking or business" means any work, undertaking or business that is within the legislative authority of the Parliament of Canada, including without restricting the generality of the foregoing:
[…]
(b) a railway, canal, telegraph or other work or undertaking connecting any province with any other or others of the provinces, or extending beyond the limits of a province;
(h) a work or undertaking that, although wholly situated within a province, is before or after its execution declared by the Parliament of Canada to be for the general advantage of Canada or for the advantage of two or more of the provinces; .. .
It was not, however, until the In re the Validity of the Industrial Relations and Disputes Investigation Act (the Stevedores' case), [1955] S.C.R. 529, that this Court established the basic criteria of federal jurisdiction in this field. It was in the Stevedores' case that the constitutional underpinnings of the federal presence in labour relations came in for its first detailed scrutiny. The statutory provision with which the Court dealt was s. 53 of the 1948 Act which was the precursor of s. 108 of the present Canada Labour Code. The case concerned the labour relations of a stevedoring company which was engaged under seasonal contracts
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with a group of shipping companies engaged in the operation of regular shipping schedules between ports in Canada and ports outside Canada. The employer in question supplied the stevedoring and terminal services in the port of Toronto to these shipping companies and this was the exclusive undertaking of the employer. The Court held that the labour relations between the employer and the stevedores so engaged fell within federal jurisdiction, as the services supplied to what was undoubtedly a shipping and navigation undertaking within s. 91 of the Constitutional Act formed an integral part of that shipping undertaking. The judgments in the Stevedores' case became the basis for the constitutional determination, as between federal and provincial jurisdiction, of the appropriate applicable laws in labour relations. It was not until the appeal in Letter Carriers' Union of Canada v. Canadian Union of Postal Workers, [1975] 1 S.C.R. 178, came before this Court that the subject was authoritatively revisited. There the Court was dealing with the constitutional assignment of the labour relations of an employer engaged largely under contract with the Canada Post Office. The Saskatchewan Labour Relations Board had certified the Union as the collective bargaining agent for these employees. Ritchie J., writing for a unanimous Court, in construing s. 108(1) of the Canada Labour Code, drew upon the Stevedores' case by referring at p. 185 to the discussion in that case (per Chief Justice Kerwin at p. 535) of s. 53 of the 1948 Act:
... the Act ... should not be construed to apply to employees who are employed at remote stages, but only to those whose work is intimately connected with the work, undertaking or business. In pith and substance the Act relates only to matters within the classes of subjects within the specific heads of s. 91 of the British North America Act.
Ritchie J. then proceeded (at p. 186) to adopt the test prescribed in the Stevedores' case (per Estey J. at p. 568):
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If, therefore, the work of stevedoring as performed under the foregoing contract