Construction Montcalm Inc. v. Min. Wage Com.

Construction Montcalm Inc. v. Min. Wage Com.
Collection
Supreme Court Judgments
Date
1978-12-21
Report
[1979] 1 SCR 754
Judges
Laskin, Bora; Martland, Ronald; Ritchie, Roland Almon; Spence, Wishart Flett; Pigeon, Louis-Philippe; Dickson, Robert George Brian; Beetz, Jean; Estey, Willard Zebedee; Pratte, Yves
On appeal from
Quebec
Subjects
Constitutional law
Decision Content
COUR SUPRÊME DU CANADA
Construction Montcalm Inc. v. Min. Wage Com., [1979] 1 S.C.R. 754
Date : 1978-12-21
Construction Montcalm Inc. (Defendant) Appellant;
and
The Minimum Wage Commission (Plaintiff) Respondent;
and
The Attorney General of Quebec, the Attorney General of Alberta and the Attorney General of Saskatchewan Intervenors.
1978: February 2; 1978: December 21.
Present: Laskin C.J. and Martland, Ritchie, Spence, Pigeon, Dickson, Beetz, Estey and Pratte JJ.
ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC
Constitutional law — Construction of an airport on land belonging to the federal government — Contract with the federal government — Aeronautics — Nature of the undertaking — Application of provincial laws on wages and working conditions — British North Ameri­ca Act, ss. 91-92 — Minimum Wage Act, R.S.Q. 1964, c. 144 — Construction Industry Labour Relations Act, S.Q. 1968, c. 45 — Act respecting the Construction Industry, S.Q. 1970, c. 34 — Fair Wages and Hours of Labour Act, R.S.C. 1970, c. L-3, ss. 2, 3(1)(a).
The respondent Minimum Wage Commission sought to recover from appellant, Construction Montcalm Inc. (“Montcalm”), on behalf of the latter’s employees, wages, vacations and holidays and levies owed pursuant to the Minimum Wage Act and various provincial stat­utes governing labour relations in the construction industry. A constitutional issue arose whether such laws were applicable to employees of a Quebec building enterprise which, under a contract with the Crown in right of Canada, was doing construction work on the runways of a new international airport (Mirabel) on federal Crown land. The Superior Court judge answered in the negative, but a majority of the Court of Appeal concluded that Montcalm was subject to the wage legis­lation and decrees of the Province. Appellant appealed to this Court and made three submissions: (1) aeronau­tics is a class of subjects which comes under exclusive federal authority and comprises the construction of airports, including the conditions of employment of workers engaged in the construction of airports; furthermore, Mirabel airport is a federal work or undertaking; (2) provincial law does not apply on federal government lands; (3) the contract is governed by the Fair Wages and Hours of Labour Act, a federal statute.
Held (Laskin C.J. and Spence J. dissenting): The appeal should be dismissed.
Per Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Pratte JJ.: The issue must be resolved in the light of established constitutional principles, namely that the provinces have exclusive authority over labour relations and the terms of a contract of employment but, by way of exception to this principle, the federal Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal sub­ject (the Stevedoring case, [1955] S.C.R. 529). Thus Parliament has jurisdiction over the conditions of employment of a federal undertaking, that is one whose normal or habitual activities are a federal matter (Agence Maritime case, [1969] S.C.R. 851 and Letter Carriers’ case, [1975] 1 S.C.R. 178).
The first and primary argument of appellant does not meet the test set out in the Stevedoring case, as the construction of an airport is not in every respect an integral part of aeronautics. What wages shall be paid by an independent contractor like Montcalm to its employees engaged in the construction of runways is a matter so far removed from aerial navigation or from the operation of an airport that it cannot be said that the power to regulate this matter forms an integral part of federal competence over aeronautics. Notre-Dame de Bonsecours, [1899] A.C. 367, must be distinguished, since the impugned legislation does not purport to regu­late the structure of runways. Moreover, this argument implicitly but clearly ignores the requirement of the Agence Maritime and Letter Carriers’ cases that an undertaking cannot be characterized as a federal or provincial one on account of casual factors. In the case at bar, we have no choice but to presume that Montcalm is an ordinary building contractor, whose ordinary busi­ness is construction, a business which is not specifically federal. What a contractor builds is accidental, and the one work it happened to be constructing at the relevant time is not the decisive factor in determining the nature of the business.
Montcalm’s second submission cannot be admitted either. The exclusive power of the Province to make laws in relation to property and civil rights is territorially limited only by the words “in the Province”, and Mirabel is located in the Province. The enumeration of exclusive federal powers in s. 91 of the B.N.A. Act, including the power to make laws in relation to the public debt and property, operates as a limitation ratione materiae upon provincial jurisdiction, not as a territorial limitation. The impugned provisions do not relate to federal property, but they govern the civil rights of Montcalm and its employees on federal Crown lands; the latter do not constitute an extra-territorial enclave within provincial boundaries.
Montcalm’s third submission cannot succeed unless the impugned provisions are in conflict with the federal statute. It was incumbent upon Montcalm to establish that it could not comply with the provincial Act without committing a breach of the federal Act. Montcalm did not even attempt any such demonstration. Further, the impugned provisions add a term not to the contract between the federal government and Montcalm but to the contract between Montcalm and its employees, a term which is not incompatible with any applicable federal law.
Per Laskin C.J. and Spence J., dissenting: The con­tention that there can be a differentiation for constitu­tional purposes between construction and maintenance or operation of federal work or undertaking is inconsist­ent with a line of cases of the Privy Council and of this Court. In light of these precedents, the exclusive federal authority over aeronautics embraces authority over the construction as well as the maintenance of airports. Moreover, the case concerns a contract with the federal Crown for the execution of works on federal Crown land. Under s. 91(1A) of the B.N.A. Act, federal public property is within the exclusive domain of the federal Parliament, and the fact that what we have here is federal Crown property is itself enough to exclude pro­vincial legislation from any regulatory control over it and what is done on it. The contract between the Crown and Montcalm is also governed by federal statutes on wages and working conditions. If a province could extend its minimum wage legislation to such a federal Crown contract, this would be tantamount to adding a term to it, and it is clear that a Province cannot alter or modify the terms and conditions of a federal Crown contract entered into with a third party.
Toronto Electric Commissioners v. Snider, [1925] A.C. 396, followed; In re the validity of the Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529; In re the application of the Minimum Wage Act of Saskatchewan to an employee of a Revenue Post Office, [1948] S.C.R. 248; Quebec Minimum Wage Commission v. Bell Telephone Company of Canada, [1966] S.C.R. 767; Letter Carriers’ Union of Canada v. Canadian Union of Postal Workers, [1975] 1 S.C.R. 178; Canada Labour Relations Board v. City of Yellowknife, [1977] 2 S.C.R. 729; Agence Maritime Inc. v. Canada Labour Relations Board, [1969] S.C.R. 851; Johannesson. v. The Rural Municipality of West St. Paul, [1952] 1 S.C.R. 292; City of Toronto v. Bell Telephone Co., [1905] A.C. 52; Ottawa v. Shore and Horwitz Construction Co. (1960), 22 D.L.R. (2d) 247; R. v. Beaver Foundations Ltd. (1968), 69 D.L.R. (2d) 649; R. v. Concrete Column Clamps (1961) Ltd., [1972] 1 O.R. 42; Re United Association of Journeymen, etc. Local 496 and Vipond Automatic Sprinkler Co. Ltd. (1976), 67 D.L.R. (3d) 381; Madden v. Nelson and Fort Sheppard Railway Co., [1899] A.C. 626; Workmen’s Compensation Board v. Canadian Pacific Railway Company, [1920] A.C. 184; Campbell-Bennett Ltd. v. Comstock Midwestern Ltd., [1954] S.C.R. 207; Attor­ney General of the Province of Quebec v. Kellogg’s Co., [1978] 2 S.C.R. 211; Cardinal v. Attorney General of Alberta, [1974] S.C.R. 695; R. v. Smith, [1942] O.W.N. 387; Spooner Oils Ltd. v. Turner Valley Gas Conservation Board, [1933] S.C.R. 629; Ross v. Regis­trar of Motor Vehicles, [1975] 1 S.C.R. 5; Attorney General of Manitoba v. Manitoba Licence Holders’ Association, [1902] A.C. 73, referred to; R. v. Baert Construction Ltd., [1974] 4 W.W.R. 135, aff. by (1974), 51 D.L.R. (3d) 265, applied; Canadian Pacific Railway v. Notre-Dame de Bonsecours, [1899] A.C. 367, distinguished.
APPEAL against a decision of the Court of Appeal[1] reversing a judgment of the Superior Court. Appeal dismissed, Laskin C.J. and Spence J. dissenting.
François Mercier, Q.C., and Rolland Forget, for the appellant.
Benoit Belleau, André Tremblay and Serge Benoît, for the respondent.
Olivier Prat, for the intervenor, the Attorney General of Quebec.
William Henkel, Q.C., and C. J. Cummings, for the intervenor, the Attorney General of Alberta.
William N. Lawton, for the intervenor, the Attorney General of Saskatchewan. The judgment of Laskin C.J. and Spence J. was delivered by
THE CHIEF JUSTICE (dissenting)—This appeal, which is here by leave of this Court, involves the question whether certain Quebec wage decrees, applicable to employment in the construction industry in Quebec, may constitutionally be enforced against a Quebec construction company in respect of its employees engaged in the carrying out of a contract on federal Crown land for the construction of runways for the new Mirabel airport that was being built in a region of the Prov­ince of Quebec. The question was answered in the negative by Carignan J. of the Quebec Superior Court but on appeal a majority of the Quebec Court of Appeal, Montgomery J.A. dissenting, concluded that the appellant contractor was sub­ject to the wage legislation and decrees of the Province in the carrying out of the contract with the federal Crown.
In my opinion, Montgomery J.A. was right and the majority of the Quebec Court of Appeal wrong. Turgeon J.A. (with whom Crête J.A. agreed) in giving the majority judgment, acknowl­edged the exclusive jurisdiction of Parliament in relation to aeronautics, but drew a distinction be­tween the construction of an airport and the opera­tion or maintenance of a completed airport. It was his view that because the construction of the run-ways related to an airport not yet in being, it could not be said that the exclusive federal power in relation to aeronautics was being invaded; and hence the contractor remained subject to provin­cial legislation respecting the wage entitlement of his employees while they were engaged on the federal project, and until the project was com­pleted and the airport was in operation. What Turgeon J.A. appears to have fixed is a temporal test for the exercise of constitutional authority. Montgomery J.A. in his dissenting reasons has shown sufficiently how unreal the temporal test is, saying that “[it] could have this curious result: that if limited operation should start at the new airport before construction were completed, then the construction workers would at that time pass from provincial to federal jurisdiction”. I think the proper approach, supported by the cases discussed below, is a functional test under which there can be no constitutional distinction between the construction and operation of a feder­al work or undertaking or any facility which only the Parliament of Canada could authorize. It has, however, been urged by the respondent and by the supporting intervenors that, even accepting the functional test, provincial legislation may still apply to certain aspects of the construction as contrasted with the operation of the federal work. This position is, in my opinion, no less unreal than the view taken by Turgeon J.A. It might just as well be argued that construction could not proceed without a provincial or municipal building permit, a proposition which has only to be stated to be revealed as completely unsupportable: see Ottawa v. Shore and Horwitz Construction Co.[2] and cf. City of Toronto v. Bell Telephone Co.[3]
The case, which originated in a claim by the Quebec Minimum Wage Commission to recover on behalf of the appellant’s employees the defic­iency in wages and allied monetary items, pursu­ant to Quebec legislation and decrees, was argued on certain admissions which were as follows:
[TRANSLATION] 1. Defendant is a construction com­pany and as such obtained from Her Majesty the Queen in right of Canada contracts for the construction of runways at the new International Airport located at Ste. Scholastique, district of Terrebonne, province of Quebec;
2. All the aforementioned work was specifically authorized by the federal legislative authority and was awarded to defendant by orders of the Governor General in Council;
3. All the aforementioned work was carried out on land belonging to Her Majesty the Queen in right of Canada;
4. Defendant admits paragraph 1 of the statement of claim; [on the standing of the Commission as against the defendant]
5. Defendant admits the quantum of the claim in so far as it is subordinate to and governed by provincial legislation; When leave was sought to come here, appropri­ate steps were taken to propound a constitutional question which was formulated as follows:
Are the Minimum Wage Act, R.S.Q. 1964, c. 144, the Construction Industry Labour Relations Act, Statutes of Quebec 1968, c. 45, an Act Respecting the Construc­tion Industry, Statutes of Quebec 1970, c. 34, and an Act to amend the Construction Industry Labour Rela­tions Act and the Supplemental Pension Plans Act, Statutes of Quebec 1971, c. 46, as well as Decrees 4599 and 4795 of 1970 and amendments, enacted by the National Assembly of Quebec and the Lieutenant-Gov­ernor in Council, which statutes and decrees govern, in Quebec, the labour relations in the construction industry, rendered inoperative with regard to the construction workers employed by contractors doing construction work under contracts with the Queen in Right of Canada on lands owned by the Crown in Right of Canada and if not, are they inoperative with regard to the job site at Mirabel?
The Attorney General of Quebec had intervened in the Court of Appeal and he was joined in interven­tion here by the Attorney General of Alberta and the Attorney General of Saskatchewan. The admissions of fact aforementioned and the course of argument before this Court made it clear that the issue here was much narrower than that set out in the constitutional question propounded at the request of the appellant. It may perhaps be useful to point out here that neither the Chief Justice, before whom ex parte applications to state consti­tutional questions usually come, nor the other members of the Court who may be asked to set such questions, seek to thwart an applicant in posing such questions unless it is very clear that there is no constitutional issue that arises in the litigation. The members of the Court do assist in formulating the questions sought to be put but simply as a matter of insisting on clarity. The responsibility rests initially on the applicant who is, of course, aware that once a constitutional question is propounded for the consideration of the Court notice thereof must be given to the Attorney General of Canada and to the Attorneys General of the Provinces. The appellant in this Court pitched his argu­ment in the main on the exclusive federal power in relation to aeronautics, drawing at the same time on parallel situations arising in respect of construc­tion concerning other activities or enterprises within exclusive federal legislative authority. One such activity involving construction was considered by this Court in Campbell-Bennett Ltd. v. Com­stock Midwestern Ltd.,[4] where what was in issue was the right to assert a mechanic’s lien under provincial legislation against an oil pipe line extending from a point in Alberta to a point in British Columbia, and hence a work or undertak­ing falling within the excepting words in s. 92(10)(a) of the British North America Act so as to be subject to federal legislative authority. That case is, no doubt, distinguishable from the present one, if only because the enforcement of a mechan­ic’s lien, involving the possibility of sale, would involve dismemberment of an enterprise under fed­eral regulatory control. I point to it, however, because the fact that it may have been under construction did not make it any less within feder­al jurisdiction than it would have been if it had been in operation and was undergoing repairs.
The contention that there can be a differentia­tion for constitutional purposes between construc­tion and maintenance or operation of a federal work or undertaking is inconsistent with a line of cases beginning with C.P.R. v. Notre-Dame de Bonsecours[5], dealing with railways which come under federal regulatory authority. In that case, the Privy Council supported the exclusive author­ity of the Parliament of Canada to prescribe regu­lations for the construction, repair and alteration of the railway and for its management. It also said that a Province would be exceeding its powers “if it attempted [to interfere] with the structure or management of a work withdrawn entirely from provincial jurisdiction, such as a work authorized by the Dominion by legislation in execution of its powers under s. 92(10)(a)” (at p. 226). What is true as to railways must be equally true as to airports. I do not see how it can be suggested that construction referable to a railway is within exclu­sive federal competence but construction in respect of a federal enterprise, like an airport or a urani­um mine that does not move across provincial boundaries is not. If a company engaged in the construction of an interprovincial railway was working across provincial boundaries, could it be suggested that its employees would be subject to provincial wage legislation according to which side of a provincial boundary it was working on at a particular period?
It is not only provincial wage legislation but other controls referable to construction that appear to me to be inapplicable to enterprises within exclusive federal regulatory control. In City of Toronto v. Bell Telephone Co., supra, the Privy Council was faced with a contention that a com­pany, authorized by federal legislation to carry on a telephone business, and in that connection to construct and maintain its lines along or under any public highways or streets, was required to obtain municipal permission to construct its lines in the municipality of Toronto. The submission was rejected and the Privy Council supported the view that legislative jurisdiction was to be judged by the terms of the empowering enactment. Moreover, and on this its view is particularly relevant here, the Privy Council also rejected the contention that federal jurisdiction did not arise until there was an actual connection of the telephone lines between different provinces. This opinion denies, in my view, the basis of Turgeon J.A.’s judgment that there is a valid distinction to be made on constitu­tional grounds between the construction of an enterprise that is within federal regulatory author­ity and the operation of such an enterprise. The distinction becomes more obviously empty if it is sought to be applied to differentiate, for constitu­tional purposes, new construction and construction by way of repair of an operating enterprise. I wish to refer in this connection to the judg­ment of this Court in Quebec Minimum Wage Commission v. Bell Telephone Company of Canada[6]. There the appellant Commission purported to impose certain levies upon the respond­ent, pursuant to the provincial Minimum Wage Act and by-laws enacted thereunder, measured by a fractional percentage of the wage paid to its employees. As is the case here, there was no express exclusion of federal enterprises nor, indeed, any express inclusion, and so the question was whether the provincial provisions could consti­tutionally be applied to the respondent. This Court, affirming the Quebec Court of Appeal said “no”, relying mainly on the judgments of the Court In re the application of the Minimum Wage Act of Saskatchewan to an employee of a Revenue Post Office[7] and on the Stevedoring[8] case. Again, I see nothing in this Bell Telephone case that turns on a distinction between construction and opera­tion. Martland J., who spoke for the Court, was concerned of course with an operating enterprise but this factual situation would not appear to have been a determining consideration in excluding the application of the provincial directives. I refer to two passages in his reasons, at pp. 772 and 774 respectively:
... I feel that the regulation and control of the scale of wages to be paid by an interprovincial undertaking, such as that of the respondent, is a matter for exclusive federal control.
... a statute which deals with a matter which, apart from regulatory legislation, would have been the subject matter of contract between employer and employee, e.g., rates of pay or hours of work, affects a vital part of the management and operation of the undertaking to which it relates. This being so, if such regulation relates to an undertaking which is within s. 92(10)(a), (b) or (c), in my opinion it can only be enacted by the federal parliament.
It is worthwhile to dwell briefly on the Sas­katchewan Minimum Wage case, supra. It involved an attempt by the Province of Saskatchewan wan [sic] to apply its wage legislation to a person employed temporarily by the postmistress of a revenue post office to work exclusively in post office operations. There was a contract situation there as here, but admittedly, the postmistress was an employee of the Crown and the appellant herein was not. The essential point, in my view, was the exclusive involvement in the work of the post office, a federal Crown enterprise. This Court emphasized that the employment was in the busi­ness of the post office. More closely related to the present case is the situation in the Stevedoring case where a stevedoring company, not itself oper­ating the enterprise which was subject to exclusive federal regulatory control, was held bound in its relations with its employees, working exclusively on loading and unloading ships engaged in interna­tional service, by federal labour relations legisla­tion.
So far I have been dealing with the issue before this Court in terms only of the exclusive federal authority in relation to aeronautics, embracing authority over the construction as well as the maintenance of airports. There is, however, a wider and more telling basis for supporting the judgment at trial and the dissenting reasons of Montgomery J.A. I refer to the fact that we are dealing here with a contract with the federal Crown for the execution of works on federal Crown land.
Federal public property is within the exclusive domain of Parliament under s. 91(1A), and wheth­er or not the words “public property” therein carry a wider significance than what is comprehended by federal Crown property, the fact that what we have here is federal Crown property is itself enough to exclude provincial legislation from any regulatory control over it and what is done on it. I refer to the judgment of this Court given by Duff C.J.C. in Spooner Oils Ltd. v. Turner Valley Gas Conservation Board[9], at pp. 643-44 where he said this: ... The Dominion Lands Act and the Regulations enacted pursuant to it, give statutory effect to plans for dealing with Dominion public lands, including lands containing petroleum and natural gas, which, it must be assumed, were conceived by Parliament, and the authorities nominated by Parliament, as calculated to serve the general interest in the development and exploi­tation of such lands and the minerals in them. It is not competent to a provincial legislature pro tanto to nullify the regulations, to which Parliament has given the force of law in execution of such plans, by limiting and restricting the exercise of the rights in the public lands, created by such regulations in carrying the purpose of Parliament into effect. Indeed, an administrative order, which the legislature has professed to endow with the force of statute, directed against a tract of public land, the property of the Dominion, held by a lessee under the Regulations of 1910 and 1911, and which professed to regulate the exercise, by the lessee, of his right to take gas and petroleum from the demised lands, would truly be an attempt to legislate in relation to a subject reserved for the exclusive legislative jurisdiction of the Dominion by s. 91(1), “The Public*** Property” of the Dominion.
There was in force in relation to the Mirabel airport property a contract between the Crown and the appellant. That contract was governed, inter alia, by the Fair Wages and Hours of Labour Act, R.S.C. 1970, c. L-3. Section 3(1)(a) of the Act reads as follows:
3. (1) ..
(a) all persons in the employ of the contractor, sub-contractor, or any other person doing or contracting to do the whole or any part of the work contemplated by the contract shall during the continuance of the work be paid fair wages;
“Fair wages” is defined in s. 2 of the Act in these terms:
2. In this Act
“fair wages” means such wages as are generally accepted as current for competent workmen in the district in which the work is being performed for the character or class of work in which such workmen are respec­tively engaged; but shall in all cases be such wages as are fair and reasonable and shall in no case be less than the minimum hourly rate of pay prescribed by or pursuant to Part III of the Canada Labour Code; Part III of the Canada Labour Code, to which the definition points, deals with standard hours, wages, vacations and holidays. The relevant provisions thereof as they appear in the Code, being R.S.C. 1970, c. L-l, s. 35 as enacted by R.S.C. 1970 (2nd Supp.), c. 17, s. 8, are as follows:
35. (1) Except as otherwise provided by or under this Division, an employer shall pay to each employee of the age of seventeen years and over a wage at the rate of not less than one dollar and seventy-five cents an hour or not less than the equivalent of that rate for the time worked by him where the wages of the employee are paid on any basis of time other than hourly.
(1.1) The Governor in Council may from time to time, by order, increase the minimum hourly wage established by subsection (1), but no order made under this subsection is of any force or effect until a date specified in the order that is at least three months after the date of publication thereof in the Canada Gazette.
Since the Parliament of Canada has specified a minimum wage (and, indeed other monetary advantages in Part III of the Canada Labour Code which it is unnecessary to list) and the provision so made is by statute (s. 3(1)(a) of the Fair Wages and Hours of Labour Act) made a condition of the contract with the appellant, I think it is not within the competence of the Province to extend its minimum wage legislation to such a federal Crown contract. This would be tantamount to adding a term to it and I think it is clear that a Province cannot alter or modify the terms and conditions of a federal Crown contract entered into with a third party.
There is another point worth notice. The respondent Commission does not allege in its demand that the particular employees of the appellant were working on other projects during the period in which it was engaged in carrying out the contract with the federal Crown. I should have thought that this would have been mentioned if it was the fact. However, even if they were working elsewhere from time to time, it would not alter my conclusion. The matter would then be simply one of making the appropriate calculations and keeping proper accounts to exclude work done under the federal Crown contract from subjection to the provincial decrees.
Mention was made during the course of the argument of the difficulty that could be presented where a contractor having a collective agreement with its employees governed by provincial law undertook a federal Crown project. Would a sepa­rate certification of the employees’ union be required and what would happen to the existing collective agreement? These issues do not arise here and I would not find them insoluble if they did. I point out only that the issues would be the same if the contractor was involved in operation or maintenance rather than construction, having regard to the admission that where operation and maintenance of a federal Crown project under a contract with the Crown are concerned, the rela­tions of the contractor and its employees are com­pletely outside of provincial wage regulation.
In the result, I would allow the appeal, set aside the judgment of the Quebec Court of Appeal and restore the judgment at trial. The appellant should have its costs throughout.
The judgment of Martland, Ritchie, Pigeon, Dickson, Beetz, Estey and Pratte JJ. was delivered by
BEETZ J.—My conclusions differ from those of the Chief Justice whose reasons I have had the advantage of reading. He has quoted the admis­sions relating to the factual context of this case as well as the constitutional question and stated the views of the courts below. I am accordingly relieved from the task of doing the same.
The claim of the Minimum Wage Commission is a civil claim to recover wages, paid vacations and holidays, health insurance premiums and other social security levies from Construction Montcalm Inc. (Montcalm), a building contractor, on behalf of the latter’s employees, together with ancillary levies and penalties for a total amount of $13,481.24 the quantum of which is not in dispute. This amount is claimed pursuant to various provi­sions of the Minimum Wage Act, R.S.Q. 1964, c. 144 and amendments, the Construction Industry Labour Relations Act, S.Q. 1968, c. 45, An Act respecting the construction industry, S.Q. 1970, c. 34 and orders in council and ordinances passed under the authority of these Acts. Some of the provisions were enacted in 1970 for the temporary settlement of problems caused by labour strife then prevailing in the Quebec construction industry; but in the main these measures are laws of general application regulating labour relations and the conditions of employment, including wages, in the Quebec construction industry. It was not dis­puted, as indeed it could not be, that laws of this kind relate to matters coming within the class of subjects of property and civil rights in the Province and are intra vires of the provincial legislature. The issue is whether such laws are constitutionally applicable to the employment of workers employed by a building contractor who, under contract with the Crown in right of Canada, is doing construc­tion work on the runways of a new international airport (Mirabel) on federal Crown land.
The issue must be resolved in the light of estab­lished principles the first of which is that Parlia­ment has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule: Toronto Electric Commissioners v. Snider[10]. By way of exception however, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject: In re the validity of the Industrial Relations and Disputes Investigation Act[11] (the Stevedoring case). It follows that primary federal competence over a given subject can prevent the application of provincial law relating to labour relations and the conditions of employment but only if it is demonstrated that federal authority over these matters is an integral element of such federal competence; thus, the regulation of wages to be paid by an undertaking, service or business, and the regulation of its labour relations, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one; In re the application of the Minimum Wage Act of Saskatchewan to an employee of a Revenue Post Office[12], (the Reve­nue Post Office case); Quebec Minimum Wage Commission v. Bell Telephone Company of Canada[13] (the Bell Telephone Minimum Wage case); Letter Carriers’ Union of Canada v. Canadian Union of Postal Workers[14] (the Letter Carriers’ case). The question whether an under-taking, service or business is a federal one depends on the nature of its operation: Pigeon J. in Canada Labour Relations Board v. City of Yellowknife[15], at p. 736. But, in order to determine the nature of the operation, one must look at the normal or habitual activities of the business as those of “a going concern”, (Martland J. in the Bell Tele­phone Minimum Wage case at p. 772), without regard for exceptional or casual factors; otherwise, the Constitution could not be applied with any degree of continuity and regularity; Agence Maritime Inc. v. Canada Labour Relations Board[16] (the Agence Maritime case); the Letter Carriers’ case.
The main submission made on behalf of Montcalm starts from the premise that aeronautics is a class of subjects which comes under exclusive fed­eral authority; Johannesson v. The Rural Munici­pality of West St. Paul[17]. It was contended that aeronautics comprises the matter of airports and that the construction of airports, including the conditions of employment of workers engaged in the construction of airports, whoever employs them, is an integral part of aeronautics. The issue was also discussed as if the Mirabel airport were a federal work or undertaking, and it could indeed be argued that an international airport is a work which forms part of an undertaking connecting a province with a foreign country or extending beyond the limits of a province. An obiter dictum of Lord Watson in Canadian Pacific Railway v. Notre-Dame de Bonsecours[18] (the Notre-Dame de Bonsecours case) at p. 372 was quoted to us in support of Montcalm’s main submission:
.. the Parliament of Canada has, in the opinion of their Lordships exclusive right to prescribe regulations for the construction, repair and alteration of the railway, and for its management, and to dictate the constitution of the company;
(Underlining is mine.)
The construction of an airport, it was argued, is as much a matter for exclusive federal control as the construction of a federal railway.
In my view, the main submission is not supported by the principles enunciated above: it does not meet the test set out in the Stevedoring case according to which Parliament has no authority over labour relations except in so far as such authority is an integral element of its primary jurisdiction over some other matter; furthermore, it implicitly but clearly ignores the requirement of the Agence Maritime and Letter Carriers’ cases that an undertaking, service or business be not characterized as a federal or provincial one on account of casual factors.
The construction of an airport is not in every respect an integral part of aeronautics. Much depends on what is meant by the word “construc­tion”. To decide whether to build an airport and where to build it involves aspects of airport con­struction which undoubtedly constitute matters of exclusive federal concern: the Johannesson case. This is why decisions of this type are not subject to municipal regulation or permission: the Johannesson case; City of Toronto v. Bell Telephone Co.[19]; the result in Ottawa v. Shore and Horwitz Con­struction Co.[20] can also be justified on this ground. Similarly, the design of a future airport, its dimen­sions, the materials to be incorporated into the various buildings, runways and structures, and other similar specifications are, from a legislative point of view and apart from contract, matters of exclusive federal concern. The reason is that deci­sions made on these subjects will be permanently reflected in the structure of the finished product and are such as to have a direct effect upon its operational qualities and, therefore, upon its suita­bility for the purposes of aeronautics. But the mode or manner of carrying out the same decisions in the act of constructing an airport stand on a different footing. Thus, the requirement that workers wear a protective helmet on all construction sites including the construction site of a new airport has everything to do with construction and with provincial safety regulations and nothing to do with aeronautics: see R. v. Beaver Foundations Ltd.[21] and R. v. Concrete Column Clamps (1961) Ltd.[22] See also Re United Association of Journey-men, etc. Local 496 and Vipond Automatic Sprin­kler Co. Ltd.[23], where Cavanagh J. of the Alberta Supreme Court held that “the fact of construction of a building called an air terminal does not ... show that the construction is connected with aeronautics” and that, while an aerodrome is a federal work, employees constructing such a build­ing are subject to provincial labour relations legis­lation. In my opinion what wages shall be paid by an independent contractor like Montcalm to his employees engaged in the construction of runways is a matter so far removed from aerial navigation or from the operation of an airport that it cannot be said that the power to regulate this matter forms an integral part of primary federal compe­tence over aeronautics or is related to the opera­tion of a federal work, undertaking, service or business. (For the purpose of the main submission, it is unnecessary to express any view as to whether Parliament could, in a provision of an ancillary nature, incidentally touch upon the conditions of employment of workers engaged in the construc­tion of airports).
The Notre-Dame de Bonsecours case is relied on by Montcalm. The Judicial Committee held that provincial legislation prescribing the cleaning of ditches was intra vires of the provincial legisla­ture and applicable to a federal railway since it did not affect the structure of the railway. Lord Wat­son’s dictum, quoted above, is preceded by this statement: (at p. 372)
The British North America Act, whilst it gives the legislative control of the appellants’ railway qua railway to the Parliament of the Dominion, does not declare that the railway shall cease to be part of the provinces in which it is situated, or that it shall, in other respects, be exempted from the jurisdiction of the provincial legislatures.
(Underlining is mine.)
Lord Watson’s dictum is then followed by the following passage (at pp. 372 and 373):
It was obviously in the contemplation of the Act of 1867 that the “railway legislations”, strictly so called, appli­cable to those lines which were placed under its charge should belong to the Dominion Parliament. It therefore appears to their Lordships that any attempt by the Legislature of Quebec to regulate by enactment, wheth­er described as municipal or not, the structure of a ditch forming part of the appellant company’s authorized works would be legislation in excess of its powers. If, on the other hand,