A-172-74
Butler Aviation of Canada Limited (Applicant)
v.
International Association of Machinists and Aero
space Workers (Respondent)
and
Canada Labour Relations Board
and
The Attorney General of Canada (mis -en-cause)
Court of Appeal, Jackett C.J., Pratte J. and Hyde
D.J.—Montreal, May 20 and 22, 1975.
Judicial review—Labour relations—Applicant operating
ground service business for aircraft—Canada Labour Rela
tions Board certifying respondent union as bargaining agent of
applicant—Whether Board has jurisdiction—Whether federal
work, undertaking or business—Canada Labour Code, R.S.C.
1970, c. L-1, ss. 2, 108, as am.—Industrial Relations and
Disputes Investigation Act, S.C. 1948, c. 54, s. 53.
Applicant, operator of an aircraft ground service business,
applies to review and set aside a decision of the Canada Labour
Relations Board certifying respondent union as bargaining
agent for certain employees at its Montreal Airport facility.
Applicant maintains that the Board lacks jurisdiction because
the employees are not "employed upon or in connection with
the operation of any federal work, undertaking or business" as
found in section 108 of the Canada Labour Code.
Held, dismissing the application, the Board properly decided
that it had jurisdiction. The applicant provides services to,
among others, Air Gaspé; any argument that that company's
undertaking is outside federal jurisdiction is ruled out by the
Johannesson decision. The words "employed upon or in connec
tion with the operation of' (section 108) have been held to
include undertakings where the business or services are "an
integral part, or necessarily incidental to the operation of a
federal work, undertaking or business". Here, the re-fuelling of
aircraft between flights is obviously "necessarily incidental" to
an operation within federal jurisdiction, as is the general servic
ing provided by applicant.
Johannesson v. The Rural Municipality of West St. Paul
[1952] 1 S.C.R. 292; Reference re Validity of Industrial
Relations and Disputes Investigation Act [1955] S.C.R.
529 and Letter Carriers Union v. C.U.P.W. [1975] S.C.R.
178, followed. Murray Hill Limousine Service Limited v.
Batson [1965] Q.B. 778, disagreed with. Field Aviation
Company Limited v. Alberta Board of Industrial Rela
tions [1974] 6 W.W.R. 596, discussed.
JUDICIAL review.
COUNSEL:
G. Dancasse for applicant.
No one for respondent.
F. Mercier, Q.C., for mis -en-cause.
SOLICITORS:
Pouliot, Mercure, LeBel, Prud'homme, Verdy
& Desrochers, Montreal, for applicant.
No one for respondent.
Stikeman, Elliot, Tamaki, Mercier & Robb,
Montreal, for mis -en-cause.
The following are the reasons for judgment
delivered orally in English by
HYDE D.J.: This is a section 28 application to
review and set aside a decision of the Canada
Labour Relations Board certifying the respondent
union as the bargaining agent for the employees of
the applicant company "employed at its Montreal
International Airport facility excluding foremen,
persons above the rank of foreman, office, clerical
and sales staff".
The applicant contends that the Board has no
jurisdiction in that the employees in question are
not, under the terms of section 108 of the Canada
Labour Code:
employed upon or in connection with the operation of any
federal work, undertaking or business ... .
Section 2 of the Code states:
"federal work, undertaking or business" means any work,
undertaking or business that is within the legislative author
ity of the Parliament of Canada, including without restrict
ing the generality of the foregoing:
(e) aerodromes, aircraft or a line of air transportation ....
The evidence which the Board had before it in
reaching the decision that it has jurisdiction is
rather unsatisfactory being limited to the testimo
ny of Thomas F. Green the General Manager of
the applicant company, a subsidiary of a U.S.
corporation of similar name. When I say unsatis
factory, I am referring to a lack of preciseness in
the details of the work which it carries out and a
lack of information as to the circumstances under
which the work is carried on.
Mr. Green did give, however, some description
in reply to applicant's counsel's request to outline
"Butler Aviation's operations that they wanted to
extend to Canada, at the time", where he said:
They wanted to start up a line service which would include
general re-fuelling, maintenance and avionics, ground handling
of private corporation and commercial aircraft ....
Further on, when he was asked what the company
did at Montreal Airport location, he said:
Briefly, we are in the ground service business for private and
corporate aircraft, which would include parking, re-fuelling,
baggage handling, customer service ....
He stated that the company had an agreement
with Shell Canada Limited in respect of its
re-fuelling operations, had no "direct contractual
relations" with the Airport, and leased the hangars
and the building from which it operated from
"Maritime Aviation and Terminals". The services
as outlined were contracted for by the pilot in
command or the owner of the aircraft. The passen
gers are not charged any fee for the assistance
given them. Mr. Green summed up the nature of
the business as:
Gas station such as you would utilize for your car, aircraft
would use us the same way ....
This comparison does not appear to me to be that
accurate as the company provides hangar parking,
passenger lounge facilities and baggage handling,
which would seem to be more than porterage.
It is clear, however, that the only aircraft han
dled are those arriving or departing from Montreal
Airport whose main runways are adjacent to and
connected with the applicant's parking ramps for
aircraft. While most of the aircraft it services are
private ones it does take care of the planes of Air
Gaspé, which provide regularly scheduled flights
out of Montreal to various points in eastern
Quebec, and Air Caravan, which operates a char-
ter service, and it hopes to attract other airlines as
well.
Any argument that Air Gaspé's undertaking
might not come within the federal jurisdiction is
ruled out by the decision of the Supreme Court of
Canada in Johannesson v. The Rural Municipali
ty of West St. Paul [ 1952] 1 S.C.R. 292 where
Kellock J. said at page 314:
... it is impossible to separate intra-provincial flying from
inter-provincial flying ...
The words "employed upon or in connection
with the operation of" (used in section 108 supra)
were carried forward into the Canada Labour
Code from its predecessor statute the Industrial
Relations and Disputes Investigation Act' and
have been held by the Supreme Court to include
those undertakings where the business of or ser
vices supplied by the employer "is an integral part
of or necessarily incidental to the operation of a
federal work, undertaking or business" (see Estey
J. in Reference re Validity of Industrial Relations
and Disputes Investigation Act [1955] S.C.R. 529
at page 566 and Letter Carriers Union v. C.U.P. W.
[1975] S.C.R. 178).
The applicant advances the majority decision of
the Quebec Court of Appeal in Murray Hill
Limousine Service Limited v. Batson [1965] Q.B.
778 which held that the porters provided by the
company at the Montreal Airport were for the
convenience of the passengers and as Montgomery
J. said (page 785):
Their services were not provided for the passengers by the
airlines as one of the services incidental to the purchase of a
ticket ... .
That is not the case which we have before us. If
one uses Mr. Green's general description of the
service supplied by his company—"a gas station"
for aircraft—it is difficult to conceive how the
customers it services could operate their planes or
their businesses of transportation by air without
those services, whether provided by it or by some
one else.
What we have to consider in this case is whether
a particular local operation is an "integral part of,
S.C. 1948, c. 54, s. 53.
or necessarily incidental" (in a practical and com
mercial way) to an operation within federal legis
lative jurisdiction. The operation here is of the
same general character as that considered by the
Alberta Court of Appeal in Field Aviation Com
pany Limited v. Alberta Board of Industrial
Relations [1974] 6 W.W.R. 596. Where the cases
differ is that in Field Aviation there was proof that
the company had a certain status, which helped to
clarify the matter, under the Federal Department
of Transport Air Regulations, which proof we do
not have in the present case although Mr. Green
testified that certain maintenance work was solicit
ed, which would undoubtedly require compliance
with such regulations.
Obviously there is no clear cut test that can be
applied in each instance. However, I consider that
the re-fuelling of an aircraft between flights is
obviously "necessarily incidental" to its operation
as is the general servicing that the applicant pro
vides. There is no suggestion that its employees
assisting passengers with their baggage are porters
privately hired by those passengers, but just the
opposite is implied by Mr. Green's use of the term
"baggage handling". The applicant's employees
are employed by it to provide services to passen
gers incidental to their travel on aircraft, which
services it engages with the pilot or owner of such
aircraft to perform. Its lounge facilities are also for
the convenience of arriving and departing passen
gers in the same way as the terminal building
serves the much more extensive traffic in the main
airport—it is just a matter of degree.
I conclude, therefore, that the Board properly
decided that it had jurisdiction in the matter and I
would dismiss the application.
* * *
JACKETT C.J. concurred.
* * *
PRATTE J. concurred.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.