Bell Canada v. Quebec (Commission de la Santé et de la Sécurité du Travail)

Bell Canada v. Quebec (Commission de la Santé et de la Sécurité du Travail)
Collection
Supreme Court Judgments
Date
1988-05-26
Report
[1988] 1 SCR 749
Case number
19103
Judges
Dickson, Robert George Brian; Beetz, Jean; Chouinard, Julien; Lamer, Antonio; Wilson, Bertha; Le Dain, Gerald Eric; La Forest, Gérard V.
On appeal from
Quebec
Subjects
Constitutional law
Notes
SCC Case Information: 19103
Decision Content
bell canada v. quebec (csst), [1988] 1 S.C.R. 749
Commission de la santé et de la sécurité du travail and Ginette Bilodeau Appellants
v.
Bell Canada Respondent
and
Joanne Carrière‑Laniel, Communications Workers of Canada, the Attorney General of Quebec and the Attorney General of Canada Mis en cause
indexed as: bell canada v. quebec (commission de la santé et de la sécurité du travail)
File No.: 19103.
1986: January 30; 1988: May 26.
Present: Dickson C.J. and Beetz, Chouinard*, Lamer, Wilson, Le Dain and La Forest JJ.
on appeal from the court of appeal for quebec
Constitutional law‑‑Applicability of provincial legislation‑‑Occupational health and safety‑‑Federal undertaking‑‑Whether provincial legislation regulating health and safety in the workplace constitutionally applicable to federal undertaking‑‑Double aspect theory‑‑Impairment‑‑Conflict with federal statute‑‑Constitution Act, 1867, ss. 91(29) , in fine, 92(10), (13), (16)‑‑Act respecting occupational health and safety, S.Q. 1979, c. 63, ss. 33, 36, 37, 40 to 45‑‑Canada Labour Code, R.S.C. 1970, c. L‑1.
This appeal is part of a trilogy which also includes Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868, and Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board), [1988] 1 S.C.R. 897. The three appeals, which raise similar questions, were heard consecutively and essentially consolidated for purposes of the hearings. Different provisions of the same statute were at issue in this appeal and in Canadian National.
‑‑‑‑‑‑‑‑‑‑
A pregnant woman employed by Bell Canada expressed certain reservations about working on a VDT unit. In accordance with an agreement between Bell Canada and the union, her immediate superior offered her another position which she nevertheless refused. A month later, she gave her superior both a letter confirming that she was pregnant and a protective re‑assignment certificate (ss. 40 and 33 of the Act respecting occupational health and safety). Bell Canada challenged the protective re‑assignment application. The compensation officer of the Commission de la santé et de la sécurité du travail allowed the application and proceeded to pay the employee the compensation provided for in s. 36 of the Act. Bell Canada then presented a motion for evocation before the Superior Court, asking it to declare inter alia that ss. 33, 36, 37 and 40 to 45 of the Act do not apply to a federal undertaking. The Superior Court allowed the motion and the judgment was affirmed by a majority judgment of the Court of Appeal. This appeal raises two constitutional questions: whether ss. 33, 36, 37 and 40 to 45 of the Act are constitutionally applicable to Bell Canada; and, if so, are these sections inoperative in respect of Bell Canada in that they are incompatible or conflicting with federal legislation in the same area applicable to Bell Canada?
Held: The appeal should be dismissed. The first constitutional question is answered in the negative. In view of the answer to the first question, it is not necessary to answer the second.
(1) Inapplicability of provincial legislation
Although the objective of the Act respecting occupational health and safety is the elimination, at the source, of dangers to the health, safety and physical well‑being of workers, a detailed analysis of the whole of its provisions demonstrates that the pith and substance of the Act is working conditions, labour relations and the management of an undertaking. In entering the field of prevention of accidents in the workplace, as the legislator has the power to do, and in using, as probably could not be avoided in prevention matters, means such as the right of refusal, protective re‑assignment, detailed regulations, inspection and remedial orders, the legislator entered directly and massively into the field of working conditions and labour relations on the one hand and, on the other, into the field of the management and operation of undertakings. In doing so, the legislator precluded itself from aiming at and regulating federal undertakings by the Act.
The Act, characterized as above, cannot be applied to the federal undertakings mentioned in s. 91(29) and s. 92(10) a., b. and c. of the Constitution Act, 1867 , without regulating essential parts of those undertakings and without making the Act, as a consequence of such an application, a statute dealing with matters that fall within the classes of subject mentioned in those subsections. For federal undertakings, working conditions and labour relations are matters falling within the classes of subject mentioned in s. 91(29) of the Constitution Act, 1867 , and consequently are within the exclusive jurisdiction of Parliament. It follows that this primary and exclusive jurisdiction precludes the application to those undertakings of provincial statutes relating to labour relations and working conditions, since such matters are an essential part of the very management and operation of such undertakings, as with any commercial or industrial undertaking. This is one facet of a more general rule‑‑that of the exclusivity of competent jurisdiction‑‑against making works, things or persons under the special and exclusive jurisdiction of Parliament subject to provincial legislation, when such application would bear on the specifically federal nature of the jurisdiction to which such works, things or persons are subject. Since these matters are within the exclusive authority of Parliament, it is not necessary to consider whether there is a conflict between the federal and provincial legislation.
(2) Double aspect theory
The double aspect theory cannot be relied on to support the applicability of the provincial statute to federal undertakings. An examination of the preventive scheme of the Act respecting occupational health and safety and the preventive scheme created by the federal legislator in Part IV of the Canada Labour Code demonstrates that both legislators are pursuing exactly the same objective by similar techniques and means. The exact correspondence of these two objectives, set forth in ss. 2 of the Act and 79.1 of the Code, indicates that there are not two aspects and two purposes depending on whether the legislation is federal or provincial. The two legislators have legislated for the same purpose and in the same aspect. Yet they do not have concurrent legislative jurisdiction in the case at bar, but mutually exclusive jurisdictions.
The formulation of the double aspect suggested by the Court of Appeal is incorrect in that it is based on an artificial distinction: the Act is considered differently depending on whether it is viewed from the standpoint of employer‑employee relations (labour relations) or of the employee alone (his health and safety). Such a distinction is impossible. The provisions of the Act represent working conditions for workers as much as for employers, in view of the correlation between their rights and their obligations. The health and safety of workers are no more than a purely nominal "aspect" and a goal that cannot be attained except by means of a labour relations system based on reciprocal rights and obligations of employers and workers. Working conditions remain a global concept which cannot be divided, and the Act treats them as such. It is impossible to sever the objective sought‑‑the health and safety of workers‑‑from the nature of the working conditions through which that objective finds expression.
In Alltrans the British Columbia Court of Appeal relied on the double aspect theory in finding that the preventive scheme created by the legislation of that province is applicable to federal undertakings. However, the Court of Appeal's reasoning depends on a mistaken determination that the preventive scheme cannot constitutionally be severed from the compensatory scheme established by the same legislation. Provincial workmen's compensation schemes are applicable to federal undertakings because they are not labour relations schemes and they do not constitute working conditions: they do not intervene to compensate workers until after the latter's health or safety has been affected. They also do not impinge on the management or operation of undertakings. They are statutory insurance schemes of no‑fault collective liability which replace the former schemes of individual civil liability based on fault. In view of this distinction, when a compensatory scheme and preventive scheme are included in the same statute, it follows that one not only can but one must distinguish between the constitutional law classification of compensatory schemes and that of preventive schemes for purposes of their application to federal undertakings.
(3) Concept of impairment
The appellants and the Attorney General of Quebec argued that the Act does not impair the operations and functioning of Bell Canada. This argument might be relevant if it were held that the application of the Act does not bear upon working conditions and labour relations as well as the management of a federal undertaking. Yet precisely because it must be held that the Act encroaches on fields which fall within the exclusive jurisdiction of Parliament and is, for this reason, not applicable to federal undertakings, it is not relevant whether the Act impairs or not the operations and functioning of Bell Canada and Canadian National. In order for the inapplicability of provincial legislation rule to be given effect, it is sufficient that the provincial statute which purports to apply to the federal undertaking affects a vital or essential part of that undertaking, without necessarily going as far as impairing or paralyzing it. If the application of a provincial statute to a federal undertaking has the effect of impairing or paralyzing it, that a fortiori is an almost certain sign that such application bears upon the specifically federal nature of the undertaking and constitutes an encroachment on the exclusive legislative authority of Parliament. Various provisions of the Act are likely to impair the operations and functioning of federal undertakings, which is an additional reason for regarding it as inapplicable to those undertakings, regardless of any conflict between federal and provincial legislation.
(4) Conflict with federal legislation
A procedural conflict between the Canada Labour Code and the Act respecting occupational health and safety may suffice to render the provincial act inoperative if the conflict is irreconcilable or if it leads to a deadlock. While the mere duplication of two enactments certainly does not make the provincial act inoperative, the differences between the mechanisms resulting in re‑assignment in both statutes, between the rights conferred on workers under the two schemes, between the types of danger which give rise to the right, between the procedures and the avenues of appeal, appear to indicate a practical and functional incompatibility between the two groups of provisions. However, it is not necessary to decide this since the provincial statute is not applicable to Bell Canada.
Cases Cited
Followed: Commission du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767, aff'g [1966] Q.B. 301; Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529; Reference re Minimum Wage Act of Saskatchewan, [1948] S.C.R. 248; referred to: Schneider v. The Queen, [1982] 2 S.C.R. 112; Toronto Electric Commissioners v. Snider, [1925] A.C. 396; Canadian Pacific Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367; Natural Parents v. Superintendent of Child Welfare, [1976] 2 S.C.R. 751; Dick v. The Queen, [1985] 2 S.C.R. 309; Derrickson v. Derrickson, [1986] 1 S.C.R. 285; Workmen's Compensation Board v. Canadian Pacific Railway Co., [1920] A.C. 184; Hodge v. The Queen (1883), 9 App. Cas. 117; Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396; Smith v. The Queen, [1960] S.C.R. 776; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Rio Hotel Ltd. v. New Brunswick (Liquor Licencing Board), [1987] 2 S.C.R. 59; Attorney‑General for Canada v. Attorney‑General for Alberta, [1916] 1 A.C. 588; Re Alltrans Express Ltd. and Workers' Compensation Board of British Columbia (1980), 116 D.L.R. (3d) 79, rev'd (1983), 149 D.L.R. (3d) 385, rev'd [1988] 1 S.C.R. 897; Reference re Legislative Jurisdiction over Hours of Labour, [1925] S.C.R. 505; Letter Carriers' Union of Canada v. Canadian Union of Postal Workers, [1975] 1 S.C.R. 178; Agence Maritime Inc. v. Conseil canadien des relations ouvrières, [1969] S.C.R. 851; Attorney General of Canada v. St. Hubert Base Teachers' Association, [1983] 1 S.C.R. 498; Attorney‑General for Canada v. Attorney‑General for British Columbia, [1930] A.C. 111; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; Four B Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R. 1031; Northern Telecom Ltd v. Communications Workers of Canada, [1980] 1 S.C.R. 115; Cour des sessions de la paix du district de Montréal v. Association internationale des travailleurs en ponts, en fer structural et ornemental, local 711, [1970] C.A. 512; Re Field Aviation Co. and International Association of Machinists & Aerospace Workers Local Lodge 1579 (1974), 45 D.L.R. (3d) 751; Jebsens (U.K.) Ltd. v. Lambert (1975), 64 D.L.R. (3d) 574; Joyal c. Air Canada, [1976] C.S. 1211, rev. on other grounds [1982] C.A. 39; Re Culley and Canadian Pacific Air Lines Ltd., [1977] 1 W.W.R. 393; Re Attorney‑General of Quebec and A. & F. Baillargeon Express Inc. (1978), 97 D.L.R. (3d) 447; Re Canadian Pacific Ltd. and Attorney‑General of Alberta (1980), 108 D.L.R. (3d) 738; Bell Canada v. Commission de la santé et de la sécurité du travail, [1983] C.S. 677; Canadian Human Rights Commission v. Haynes (1983), 46 N.R. 381; Office de la construction du Québec c. Cie des chemins de fer nationaux du Canada, J.E. 83‑198; Great West Saddlery Co. v. The King, [1921] 2 A.C. 91; Attorney‑General for Ontario v. Israel Winner, [1954] A.C. 541; Campbell‑Bennett Ltd. v. Comstock Midwestern Ltd., [1954] S.C.R. 207; Scowby v. Glendinning, [1986] 2 S.C.R. 226; Re Forest Industries Flying Tankers Ltd. and Kellough (1980), 108 D.L.R. (3d) 686; Johannesson v. Rural Municipality of West St. Paul, [1952] 1 S.C.R. 292; Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868, rev'g [1983] C.A. 31, rev'g [1982] C.S. 99.
Statutes and Regulations Cited
Act respecting industrial accidents and occupational diseases, R.S.Q., c. A‑3.001.
Act respecting labour standards, R.S.Q., c. N‑1.1 [formerly S.Q. 1979, c. 45], ss. 52, 78, 79, 89, 94 [am. 1980, c. 5, s. 9], 122.
Act respecting occupational health and safety, S.Q. 1979, c. 63 [now R.S.Q., c. S‑2.1].
Act respecting the Ministère de la Santé et des Services sociaux, R.S.Q., c. M‑19.2, s. 1 [am. 1985, c. 23, ss. 12, 24].
Canada Labour Code, R.S.C. 1970, c. L‑1 [am. 1977‑78, c. 27], ss. 79, 79.1 [ad. 1984, c. 39, s. 17], 80 to 106.1.
Charter of human rights and freedoms, R.S.Q., c. C‑12, ss. 46 [repl. 1979, c. 63, s. 275], 55.
Constitution Act, 1867, ss. 91(29) , in fine, 92(10), (13), (16).
Constitution of the International Labour Organisation, 15 U.N.T.S. 40, preamble.
Industrial Health and Safety Regulations, B.C. Reg. 585/77.
International Covenant on Economic, Social and Cultural Rights, 993 U.N.T.S. 4, art. 7.
Labour Code, R.S.Q., c. C‑27.
Minimum Wage Act, R.S.Q. 1977, c. S‑1.
Regulation respecting labour standards, R.R.Q. 1981, c. N‑1.1, r. 3.
Workers Compensation Act, R.S.B.C. 1979, c. 437.
Workmen's Compensation Act, R.S.Q. 1977, c. A‑3.
Authors Cited
Bradet, Denis et Bernard Cliche, Martin Racine et France Thibault. Droit de la santé et de la sécurité du travail: la loi et la jurisprudence commentées. Cowansville: Yvon Blais Inc., 1986.
David, Éric. "Le droit à la santé comme droit de la personne humaine" (1985), 2 R.Q.D.I. 63.
Gibson, Dale. "Interjurisdictional Immunity in Canadian Federalism" (1969), 47 Can. Bar Rev. 40.
Gibson, Dale. The `Federal Enclave' Fallacy in Canadian Constitutional Law" (1976), 14 Alta. L. Rev. 167.
Hogg, Peter W. Constitutional Law of Canada, 2nd ed. Toronto: Carswells, 1985.
Laskin, Bora. Laskin's Canadian Constitutional Law, vol. 1, 5th ed. By Neil Finkelstein. Toronto: Cars­wells, 1986.
Lippel, Katherine. "Droit des travailleurs québécois en matière de santé (1885‑1981)" (1981‑82), 16 R.J.T. 329.
Ontario, Ministry of Labour. Report on the Administration of the Occupational Health and Safety Act, vol. 1. By G. G. McKenzie et J. I. Laskin, 1987.
Québec. Ministre d'État au développement social. Santé et sécurité au travail. Québec: Éditeur officiel du Québec, 1978.
Rochefort, Daniel. "Difficultés d'application de la Loi sur la santé et la sécurité du travail". Dans Les aspects juridiques de la santé et de la sécurité au travail. Formation permanente du Barreau du Québec, cours 64, 1982.
Weiler, Paul C. "The Supreme Court and the Law of Canadian Federalism" (1973), 23 U.T.L.J. 307.
APPEAL from a judgment of the Court of Appeal for Quebec, [1984] C.A. 510, 16 D.L.R. (4th) 345, affirming a judgment of the Superior Court, J.E. 82‑1021, authorizing a writ of evocation to be issued. Appeal dismissed.
Yves Tardif and Henri Brun, for the appellants.
François Mercier, Q.C., and Raymond Buist, for the respondent.
Jean‑François Jobin, for the mis en cause the Attorney General of Quebec.
Gaspard Côté, Q.C., for the mis en cause the Attorney General of Canada.
English version of the judgment of the Court delivered by
1. Beetz J.‑‑
I‑‑Introduction
2. This appeal is the third of a trilogy. All three appeals raise similar questions which may be stated as one: is a provincial statute regulating health and safety in the workplace, like the statutes at issue, constitutionally applicable to a federal undertaking?
3. The first appeal is that of Alltrans Express Ltd. v. British Columbia (Workers' Compensation Board), [1988] 1 S.C.R. 897 ("Alltrans"). The federal undertaking in question is a trucking business with exclusively interprovincial and international operations. The orders challenged by the undertaking are those of a report by an inspector of the Workers' Compensation Board (the "Board"). That report found certain breaches of the Industrial Health and Safety Regulations, B.C. Reg. 585/77 (the "Regulations"), and noted in particular that, in the maintenance and repair workshops of Alltrans Express Ltd., workers employed by Alltrans wore running shoes instead of the safety boots prescribed by the Regulations. The report ordered Alltrans Express Ltd. to ensure that its workers wore the regulation safety boots. It further ordered the business to establish and maintain a safety committee, in accordance with the Regulations. The Regulations were promulgated by the Board under the Workers Compensation Act, R.S.B.C. 1979, c. 437, and the inspector's report was made in accordance with that Act and the regulations adopted pursuant to it. Alltrans Express Ltd. by a petition asked the Court to declare the orders contained in the inspection report invalid on the ground that they fell within the exclusive legislative jurisdiction of the Parliament of Canada.
4. The second appeal is that of Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R. 868 ("Canadian National"). A collision between two trains owned by Canadian National Railway Co. cost the lives of three employees of that federal undertaking and injured a fourth. An inspector, Christiane Courtois, initiated an investigation into the railway accident and sent subpoenas to Canadian National employees. In doing so, she was acting pursuant to ss. 62 and 177 to 193 of the Act respecting occupational health and safety, S.Q. 1979, c. 63 (the "Act"), which require an employer to prepare an accident report and empower an inspector appointed by the Commission de la santé et de la sécurité du travail (the "C.S.S.T.") to investigate and issue remedial orders requiring any person to comply with the Act or regulations and fixing a time within which such person must comply. Canadian National sought by evocation to halt the holding of this investigation on the ground, inter alia, that the Act does not constitutionally apply to them and that the inspector had no jurisdiction to hold the investigation.
5. Finally, in the appeal at bar ("Bell Canada"), the question is whether the Act, and in particular its ss. 33, 36, 37 and 40 to 45, regarding the protective re‑assignment of a pregnant worker, are constitutionally applicable to respondent Bell Canada, another federal undertaking.
6. If it is found that the Act is constitutionally applicable to Canadian National and to Bell Canada, it will also be necessary to decide whether the provisions of this provincial Act are rendered inoperative on account of their inconsistency with the valid provisions of a federal statute. This second question no longer arises in Alltrans, as all parties now concede that there is no conflict between the provincial and the federal statutes.
7. In Alltrans, the Attorney General of British Columbia and the Attorney General of Canada intervened at trial, the former in support of the Board's position and the latter in support of the position of Alltrans Express Ltd. The Attorney General of Quebec also intervened in Alltrans in this Court, where he supported the conclusions of the Attorney General of British Columbia.
8. The Attorney General of Quebec and the Attorney General of Canada were impleaded at trial in Canadian National and in Bell Canada, and in all courts they supported, in the one case, the position of C.S.S.T., and in the other, the positions of Canadian National and Bell Canada.
9. In this Court, the three appeals were heard consecutively in the order indicated above, but were essentially joined for purposes of the hearing. Counsel heard in the second and third appeals thus adopted arguments put forward in the first or the second, and also answered questions put by the Court in the first or second appeal. Additionally, the judgment of the Quebec Court of Appeal in Bell Canada was based, at least in part, on reasons of the British Columbia Court of Appeal in Alltrans, and the Superior Court judgment in Canadian National referred to the trial judgment in Alltrans.
10. As the three appeals were treated jointly to this extent, the applicable principles will only have to be reviewed once.
11. Finally, the provisions at issue in Canadian National and in Bell Canada are various provisions of the same statute, the Act. These provisions will have to be examined in the context of the Act as a whole and the general scheme of the Act looked at in order to characterize and classify it for constitutional purposes. Here again, it will only be necessary to examine the Act once.
12. It is the case at bar, heard last of the three, which, in my view, best lends itself to examination of the Act and of the applicable principles, and I will begin with it.
II‑‑Facts
13. The facts are not in dispute. The trial judge summarized them to the satisfaction of Monet J.A., dissenting in the Court of Appeal, and Beauregard and Tyndale JJ.A., in the majority, had no reservations in this regard. In its factum respondent accepted the statement of facts contained in appellants' factum, but added certain other facts alleged under oath in its motion for evocation, which in any case must be taken as proven at this stage of the proceedings.
14. The following composite statement closely follows these three summaries, and indeed largely adopts their wording:
The C.S.S.T. is an agency created by s. 137 of the Act. It is a corporation within the meaning of the Civil Code and is responsible, inter alia, for implementing the Act.
At all relevant times, Ginette Bilodeau was a compensation officer with C.S.S.T.
Bell Canada is a telecommunications undertaking incorporated by a special Act of the Parliament of Canada and has been declared to be for the general advantage of Canada. It operates a telecommunications network linking Quebec with Ontario and part of the Northwest Territories.
At all relevant times Joanne Carrière‑Laniel was employed by Bell Canada in Valleyfield as a telephone operator. The telephone exchange in which she worked handled, inter alia, long distance calls requiring operator assistance and the directory assistance service.
At all relevant times, the Communications Workers of Canada Union was certified by the Canada Labour Relations Board to represent Bell Canada employees, including Mrs. Carrière‑Laniel. It had negotiated a collective agreement with Bell Canada for the bargaining unit that included Mrs. Carrière‑Laniel. This agreement was in effect from March 30, 1980 to November 24, 1981. In it Bell Canada and the union agreed that a pregnant employee who was reluctant to work on a VDT unit had a choice of applying for unpaid leave or being assigned other duties within the bargaining unit. This agreement was first expressed in a letter and then in a memorandum of understanding, which was then incorporated in the collective agreement when it was renewed on March 22, 1982.
Bell Canada planned to convert the Valleyfield telephone exchange to VDT units on May 23, 1981. When Mrs. Carrière‑Laniel learned of her employer's intention in this regard, knowing she was pregnant, she expressed certain reservations to her immediate superior on May 5, 1981 about working with VDT units. On May 11, her superior offered her another position. Mrs. Carrière‑Laniel refused.
On May 23, 1981 the Valleyfield office was equipped with VDT units. Mrs. Carrière‑Laniel was then on leave until June 7. By various applications, the first of which was made on June 5, 1981, Mrs. Carrière‑Laniel obtained unpaid maternity leave for the period from June 8, 1981 to July 18, 1982. Mrs. Carrière‑Laniel has not been back to work for Bell Canada since May 23, 1981. She finally resigned on July 9, 1982.
In the meantime, on June 9, 1981 Mrs. Carrière‑Laniel gave her immediate superior a letter from a physician confirming that she was pregnant. On the same day she gave her superior a protective re‑assignment certificate (ss. 40 and 33 of the Act). On July 7, 1981, Bell Canada challenged this protective re‑assignment application on the form provided for the purpose.
Ginette Bilodeau had the responsibility of deciding on the application for protective re‑assignment by Mrs. Carrière‑Laniel. In an undated decision she allowed the application and proceeded to have the C.S.S.T. pay Mrs. Carrière‑Laniel the compensation provided for in s. 36 of the Act, in this case, the sum of $5,535.81.
15. By its motion in evocation Bell Canada is asking the Court to declare that the undated decision by Ginette Bilodeau, apparently already put into effect, was ultra vires the C.S.S.T. and cannot be set up against applicant, and if necessary to quash and set aside that decision. It is also asking the Court to declare that ss. 33, 36, 37 and 40 to 45 of the Act do not apply to it.
16. It may be added that if the Act does not apply to Bell Canada, the latter would not be required to pay Mrs. Carrière‑Laniel an indemnity amounting to five regular working days, which the C.S.S.T. directed it to pay its former employee pursuant to s. 36 of the Act.
III‑‑Summary of Applicable Principles
17. To facilitate an understanding of the judgments of the lower courts and the arguments put forward by the parties, I think it is best to summarize at the outset the rules which have so far been applied by the courts and in accordance with which this Court must resolve the question stated at the start of these reasons and presented by the three appeals. These rules are well known and most of them need only be stated in the form of propositions: a more critical study of them can be made when it comes time to apply them to the circumstances of the case at bar, namely the classification of the impugned legislation.
Proposition One
18. General legislative jurisdiction over health belongs to the provinces, subject to the limited jurisdiction of Parliament ancillary to the powers expressly conferred by s. 91 of the Constitution Act, 1867 or the emergency power relating to the peace, order and good government of Canada: Schneider v. The Queen, [1982] 2 S.C.R. 112, at p. 137, reasons of Dickson J.‑‑as he then was‑‑writing for seven judges of this Court. This jurisdiction has historically been seen as resting with the provinces under s. 92(16) of the Constitution Act, 1867 , "Generally all Matters of a merely local or private Nature in the Province", although the considerable dimensions of this jurisdiction were probably not foreseen in 1867.
Proposition Two
19. In principle, labour relations and working conditions fall within the exclusive jurisdiction of the provincial legislatures: these matters fall into the class of subjects mentioned in s. 92(13) of the Constitution Act, 1867 , "Property and Civil Rights in the Province": Toronto Electric Commissioners v. Snider, [1925] A.C. 396 ("Snider").
Proposition Three
20. Notwithstanding the rule stated in proposition two, Parliament is vested with exclusive legislative jurisdiction over labour relations and working conditions when that jurisdiction is an integral part of its primary and exclusive jurisdiction over another class of subjects, as is the case with labour relations and working conditions in the federal undertakings covered by ss. 91(29) and 92(10) a., b. and c. of the Constitution Act, 1867 , that is undertakings such as Alltrans Express Ltd., Canadian National and Bell Canada. It follows that this primary and exclusive jurisdiction precludes the application to those undertakings of provincial statutes relating to labour relations and working conditions, since such matters are an essential part of the very management and operation of such undertakings, as with any commercial or industrial undertaking: Reference re Minimum Wage Act of Saskatchewan, [1948] S.C.R. 248 (the "Postal Service Case 1948"); Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529 (the "Stevedoring Case"); Commission du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767 ("Bell Canada 1966"). This third proposition reflects, at least in part, a constitutional theory which commentators who have criticized it have called the theory of "interjurisdictional immunity". I will return to this below.
21. It should however be noted that the rules stated in this third proposition appear to constitute only one facet of a more general rule: works, such as federal railways, things, such as land reserved for Indians, and persons, such as Indians, who are within the special and exclusive jurisdiction of Parliament, are still subject to provincial statutes that are general in their application, whether municipal legislation, legislation on adoption, hunting or the distribution of family property, provided however that the application of these provincial laws does not bear upon those subjects in what makes them specifically of federal jurisdiction: Canadian Pacific Railway Co. v. Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367 ("Bonsecours"); Natural Parents v. Superintendent of Child Welfare, [1976] 2 S.C.R. 751 ("Natural Parents"); Dick v. The Queen, [1985] 2 S.C.R. 309; Derrickson v. Derrickson, [1986] 1 S.C.R. 285.
Proposition Four
22. Several years before the exclusive legislative jurisdiction of Parliament over the working conditions and management of federal undertakings was recognized and established, the Judicial Committee of the Privy Council had held that provincial workmen's compensation schemes were applicable to federal undertakings: Workmen's Compensation Board v. Canadian Pacific Railway Co., [1920] A.C. 184 ("Workmen's Compensation Board").
23. Viscount Haldane, writing the reasons of the Judicial Committee, described the right of a victim of an industrial accident or the members of the victim's family as follows, at p. 191:
The right conferred...is the result of a statutory condition of the contract of employment...This right arises, not out of tort, but out of a workman's statutory contract.
24. However, in Bell Canada 1966, Martland J., writing the unanimous reasons for judgment, took a different view at pp. 773‑74 of the right conferred by the legislation impugned in Workmen's Compensation Board:
Compensation was payable not by the employer, but out of a fund administered by the Board to which employers were required to contribute. Viscount Haldane (p. 191) refers to the employee's right under the Act as the result of a "statutory condition of employment", but I think it is more accurately described as a statutory right. The Act did not purport to regulate the contract of employment. What it did do was to create certain new legal rights which were to be in lieu of all rights of action to which the employee or his dependants might otherwise have been entitled at common law or by statute.
25. It should be noted that, side by side with workmen's compensation statutes which have a compensatory purpose, legislators have in recent decades gradually adopted other legislation with a preventive purpose.
26. In British Columbia the preventive provisions, which are the only ones in question, were incorporated into the Workers Compensation Act which as its title indicates also contains compensatory provisions. Some have even concluded that the compensatory provisions have become a matter of secondary importance. This was observed by Lambert J.A., writing the reasons of the British Columbia Court of Appeal in Alltrans (1983), 149 D.L.R. (3d) 385, at p. 389:
In Mr. Justice Tysoe's report as commissioner on a commission of inquiry into the Workmen's Compensation Act of British Columbia dated November 25, 1965, and published by the Queen's Printer for British Columbia in 1966, he said, at p. 118, that the principal "purpose of the Act is not to furnish financial benefits; and that the first object is to keep work‑connected injuries to a minimum, and the second is the restoration of injured workmen, physically and economically".
27. In Quebec, the Workmen's Compensation Act, R.S.Q. 1977, c. A‑3, in force at the time of the events giving rise to these proceedings, was repealed in 1985 and replaced by the Act respecting industrial accidents and occupational diseases, R.S.Q., c. A‑3.001. Both the former and the new industrial accident legislative regimes have retained their compensatory character, even though the 1985 statute is administered by the C.S.S.T., replacing the Commission des accidents du travail. By comparison, the very elaborate scheme of preventive measures is contained instead in the Act and also, in part, in the Act respecting labour standards, R.S.Q., c. N‑1.1.
28. What was held by the Judicial Committee in Workmen's Compensation Board to be applicable to a federal undertaking was the compensatory scheme established by the statute at issue in that case.
29. It is true that this statute also included a provision empowering the Board to enact preventive regulations, and the Judicial Committee mentions this provision at p. 190; but the primary purpose of the impugned legislation is determined by the Judicial Committee at p. 188:
It was passed in 1916, and its primary purpose is to confer on workmen, out of an accident fund which it established, compensation for personal injury by accident arising out of and in the course of their employment.
Proposition Five
30. Proposition five is the double aspect theory, which appears to have been stated for the first time in Hodge v. The Queen (1883), 9 App. Cas. 117, at p. 130:
...subjects which in one aspect and for one purpose fall within sect. 92, may in another aspect and for another purpose fall within sect. 91.
31. It follows from this theory that two relatively similar rules or sets of rules may validly be found, one in legislation within exclusive federal jurisdiction, and the other in legislation within exclusive provincial jurisdiction, because they are enacted for different purposes and in different legislative contexts which give them distinct constitutional characterizations.
32. Thus the prohibition from driving a motor vehicle imposed following a conviction for driving while intoxicated may be the penalty for a criminal offence, validly enacted by Parliament, just as the suspension of a driving licence may be validly prescribed by a province for highway safety reasons: Provincial Secretary of Prince Edward Island v. Egan, [1941] S.C.R. 396.
33. Similarly, false prospectuses may be the subject of valid federal legislation from the criminal law standpoint, as well as of equally valid provincial legislation from the standpoint of regulating securities trading: Smith v. The Queen, [1960] S.C.R. 776.
34. Similarly, rules regarding "insider trading" may be regarded as belonging to corporate law within exclusive federal jurisdiction in the case of federally‑incorporated companies and as regulation of trade in securities within exclusive provincial jurisdiction, applicable to federally‑incorporated companies, provided the latter are not singled out and their essential powers are not impaired: Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161.
35. So too public nudity may be prohibited by Parliament in a criminal law context, and also be the subject of provincial regulation of entertainment in public houses operated under a provincial licence: Rio Hotel Ltd. v. New Brunswick (Liquor Licencing Board), [1987] 2 S.C.R. 59.
36. However, in Attorney‑General for Canada v. Attorney‑General for Alberta, [1916] 1 A.C. 588, Viscount Haldane issued a warning about the double aspect theory. This is what he said about this theory, at p. 596:
...[it] is now well established, but none the less ought to be applied only with great caution . . . .
37. The reason for this caution is the extremely broad wording of the exclusive legislative powers listed in ss. 91 and 92 of the Constitution Act, 1867 and the risk that these two fields of exclusive powers will be combined into a single more or less concurrent field of powers governed solely by the rule of paramountcy of federal legislation. Nothing could be more directly contrary to the principle of federalism underlying the Canadian Constitution: see Laskin's Canadian Constitutional Law (5th ed. 1986), vol. 1, at p. 525.
38. The double aspect theory is neither an exception nor even a qualification to the rule of exclusive legislative jurisdiction. Its effect must not be to create concurrent fields of jurisdiction, such as agriculture, immigration and old age pensions and supplementary benefits, in which Parliament and the legislatures may legislate on the same aspect. On the contrary, the double aspect theory can only be invoked when it gives effect to the rule of exclusive fields of jurisdiction. As its name indicates, it can only be applied in clear cases where the multiplicity of aspects is real and not merely nominal.
IV‑‑Judgments of Lower Courts
39. After reviewing the case law and analysing the Act, Marquis J. of the Superior Court held that the provisions of the Act impugned here, and indeed the Act in its entirety, are intended to apply to working conditions, and that by the numerous day‑to‑day obligations which they impose on Bell Canada they have a significant impact on the administration or management of that federal undertaking. He accordingly concluded that the impugned provisions are constitutionally in