A-392-74
British Columbia Packers Limited, Nelson Bros.
Fisheries Ltd., The Canadian Fishing Company
Limited, Queen Charlotte Fisheries Limited,
Tofino Fisheries Ltd., Seafood Products Limited,
J. S. McMillan Fisheries Ltd., Norpac Fisheries
Ltd., The Cassiar Packing Co. Ltd., Babcock
Fisheries Ltd., Francis Millerd & Co. Ltd. and
Ocean Fisheries Ltd. (Respondents) (Applicants)
v.
Canada Labour Relations Board (Respondents
Trial Division)
and
British Columbia Provincial Council United Fish
ermen and Allied Workers Union (Appellants)
(Respondents Trial Division)
and
Native Brotherhood of British Columbia, Fishing
Vessel Owners Association of British Columbia,
Pacific Trollers Association, Attorney General of
British Columbia, Attorney General of Newfound-
land and Attorney General of Nova Scotia
(Interveners)
Court of Appeal, Jackett C.J., Sheppard and
Smith D.JJ.—Vancouver, October 15, 16 and 20,
1975.
Jurisdiction—Application for prohibition—Union seeking
certification as bargaining agent for fishermen—No power of
certification in Canada Labour Relations Board—Prohibition
granted against Board—Appeal—Canada Labour Code,
R.S.C. 1970, c. L-1, s. 2, as am. S.C. 1972, c. 18, ss. 107, 108,
126, 146, 154—British North America Act, ss. 91(2), (10), (12),
(15),(16),(24).(29), 92(10),(13),(16).
Respondents were engaged in processing fish for sale to
outlets within and outside the Province of British Columbia.
They procured fish under contracts made in the Province with
the captains, crews and owners of fishing vessels. The fishing
was carried on within and outside provincial territorial waters.
Appellant union applied to the Canada Labour Relations Board
for certification as bargaining agent for the crews of the vessels
of which the captains, crews and owners entered into special
arrangements with the applicants, when a fishing boat returned
to port. The interveners, the Fishing Vessel Owners Association
of British Columbia and the Pacific Trollers Association, were
associations representing independent boat owners or crews
selling fish to various processors without any special arrange
ments. They were not involved in the certification, but support
ed the position of applicants. On a section 28 application for
review of the Board's jurisdiction, the Court of Appeal had held
([1973] F.C. 1194) that the Board's decision to hear the
application was not the type of decision reviewable under
section 122(1) of the Canada Labour Code, at least until the
Board had rendered the decision which it was specifically
authorized to render, that is, whether the Union was to be
certified or not. The Board failed to act on the Court's sugges
tion that it raise the question before the Court, under section
28(4) of the Federal Court Act. Respondents' application for
prohibition ([1974] 2 F.C. 913) was granted, and appellants
appeal therefrom.
Held, the appeal is dismissed. Section 91(12) of the British
North America Act authorizes Parliament to make laws in
relation to "fisheries", but does not extend beyond that to the
making of laws in relation to things reasonably incidental to
carrying on a fishing business, such as labour relations and
disposition of the products of the business when such things do
not in themselves fall within the concept of "fisheries."
Reference re Validity of the Industrial Relations and
Disputes Investigation Act [1955] S.C.R. 529; Attorney
General for British Columbia v. Attorney General for
Canada [1937] A.C. 377; Attorney General for Canada v.
Attorney General for British Columbia [1930] A.C. 111
and Canadian Pacific Railway v. Bonsecours [1899] A.C.
367, applied.
APPEAL.
COUNSEL:
S. R. Chamberlain for appellants, B.C. Pro
vincial Council et al.
D. Aylen, Q.C., for Canada Labour Relations
Board.
D. R. Munroe for Native Brotherhood of B.C.
W. K. Hanlin for Fishing Vessel Owners
Association of B.C.
P. D. Fraser for Pacific Trollers Association.
W. Burke-Robertson, Q.C., and G. S. Levey
for respondents, B.C. Packers et al.
K. A. Maclnnis for Attorney General of Nova
Scotia.
J. A. Nesbitt, Q.C., for Attorney General of
Newfoundland.
N. J. Prelypchan for Attorney General of
British Columbia.
SOLICITORS:
Rankin, Robertson, Giusti, Chamberlain &
Donald, Vancouver, for B.C. Provincial Coun
cil et al.
G. S. Levey, Vancouver, for B.C. Packers
Ltd., et al.
Deputy Attorney General of Canada for
Canada Labour Relations Board.
D. R. Munroe, Vancouver, for Native Broth
erhood of B.C.
J. I. Bird, Q.C., Vancouver, for Fishing Vessel
Owners Association of B.C.
P. D. K. Fraser, Vancouver, for Pacific Troll -
ers Association. .
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is an appeal from a judg
ment delivered by the Trial Division' (pursuant to
an originating motion for a writ of prohibition
brought by the respondent companies) 2 prohibiting
the Canada Labour Relations Board from pro
ceeding "with the several applications" made by
the appellant, British Columbia Provincial Council
United Fishermen and Allied Workers Union, for
"certification" under the Canada Labour Code' as
bargaining agent for fishermen and crew of fishing
boats as employees of all or any of the respondent
companies (who are referred to by the learned
Trial Judge and are hereinafter referred to as "the
processors").
There was, before the learned Trial Judge, sub
stantial agreement on the underlying facts, which
are stated by him as follows [at page 916]:
The applicants ... are firms engaged in the business of
procuring various types of fish by means of purchases and also
by special arrangements with the captains, crews and owners of
fishing vessels. The processors then process and pack the fish
and sell it to outlets both inside and outside of the Province of
British Columbia.
The respondent Union has applied in the case of each of the
processors to the respondent Board for certification as official
bargaining agent for the crews of the fishing vessels, whose
[1974] 2 F.C. 913.
2 1.e. the respondents other than the Canada Labour Rela
tions Board.
R.S.C. 1970, c. L-1 as amended.
owners, captains and crews enter into special arrangements for
the sharing of the selling price of each catch with each of the
processor purchasers when a fishing boat returns to port.
[Pages 918-919]:
The facts are relatively simple and are undisputed. They are
contained almost entirely in the affidavit of one K. M. Camp-
bell, filed on the present motion on behalf of the processors.
Generally speaking, the latter purchase fish from the fishermen
on the basis of either written or oral agreements under which
provision is made for the payment to the fishermen of a
percentage of the proceeds from the purchase of each catch
which is delivered to the agents or servants of the processors,
where it is purchased by one of the processors. Each processor
provides a settlement accounting service under which an
accounting is made for each catch to the boat owner and crew
of the fishing vessel.
From the gross proceeds of the sale of the catch, termed the
"gross stock," certain agreed upon operating costs are first
deducted. From the balance, a percentage share known as the
"boat share" is credited to the owner of the boat. At times, the
boat is owned by the captain or partly by the captain and the
members of his crew or by other persons not members of the
crew and including at times the processors themselves.
Although it is not mentioned in the affidavit in support of the
motion, this fact was fully conceded by all parties and appears
from the proceedings before the Board. In any event, the "boat
share" goes to the owner or owners, whoever he or they may be.
From the remainder of the proceeds of the catch, known in
the industry as the "net stock credit," certain other costs, such
as the cost of food for the crew and other crew personnel
expenses incurred on the trip are deducted. The remaining
balance is divided among the crew including the captain in
accordance with previously agreed-upon shares. Where the
owner or part-owner is part of the crew as captain or otherwise
he also gets a share as such, in addition to the "boat share."
Where the catch is poor, resulting in a loss on the trip
(referred to as a "hole trip") the loss is charged to the owner
and crew in the same ratio as the "net stock credit" would have
been shared. A full accounting of the above is made for each
catch, to each member of the crew, by the processor, as
purchaser.
The contracts, oral or written, covering the purchase of fish
by the processors from the fishermen, delineate the minimum
prices to be paid for the fish and the manner and means of the
division of the "gross stock proceeds." All purchases made by
the processors are made in the Province of British Columbia.
Before referring to the questions that arise in
this case, it is expedient to make reference to the
legislative scheme involved.
For present purposes, the somewhat complicated
provisions of the Canada Labour Code concerning
"certification" 4 may be summarized in an over
simplified way. Pursuant to section 126, the
Canada Labour Relations Board (hereinafter
referred to as "the Board") may certify a "trade
union", which is, by definition, an "organization of
employees ... the purposes of which include the
regulation of relations between employers and
employees", as the "bargaining agent" for a bar
gaining "unit", which is, by definition, "a group of
two or more employees". Where the Board has
certified a bargaining agent for a bargaining unit,
the "employer of the employees" may (sections
146 et seq.) require the bargaining agent, or be
required by the bargaining agent, to "commence
collective bargaining" for the purpose of entering
into a "collective agreement", which, by definition,
is an agreement between an "employer" and a
"bargaining agent" containing provisions respect
ing "terms and conditions of employment and
related matters", and, once a collective agreement
is entered into, it is "binding" not only upon
"every employee in the bargaining unit" but also
upon the "employer" (section 154).
This general legislative scheme for bringing
about a regulation of relations between an employ
er and all the persons employed by him in a
particular unit of employees is now well under
stood with respect to relations between persons
who fall within the ordinary sense of the words
"employer" and "employee". Generally speaking,
from a constitutional point of view in Canada,
such relations fall, except where exceptions are
found in section 91 of the British North America
Act, within the legislative jurisdiction of the pro
vincial legislatures; and so we find that Part V of
the Canada Labour Code, which is entitled
"Industrial Relations" and contains the provisions
concerning "certification", is applicable only (sec-
tion 108) 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 such
employees "in their relations with such employees"
and that, by definition (section 2), "federal work,
4 As amended by S.C. 1972, c. 18.
undertaking or business" means, in the Canada
Labour Code, a work, undertaking or business
"within the legislative authority of the Parliament
of Canada." 5 While the latter definition does not
say so explicitly, it is suggested that it is implicit in
it that a work, undertaking or business is only a
"federal work, undertaking or business" within the
meaning of those words in the different parts of
the Canada Labour Code if such work, undertak
ing or business is within the legislative authority of
the Parliament of Canada in so far as the subject
matter of the appropriate part of the Canada
Labour Code is concerned. 6 The certification
provisions of the Canada Labour Code only apply,
therefore, in respect of persons who fall within the
ordinary meaning of "employee" and "employer",
to a work, undertaking or business that is of such a
nature that Parliament has authority to make laws
regulating relations between the operator thereof
and his employees.
A problem arises in this case because Part V of
the Canada Labour Code contains a definition of
"employee" for the purposes of that Part that
extends the meaning of "employee" to include "a
dependent contractor" which term is defined, for
the purposes of Part V, to include a fisherman
"who is not employed by an employer" but who is
a party to a contract under the terms of which he
is entitled to a "part of the proceeds of a joint
fishing venture in which he participates".' (It is to
be noted that there is no corresponding provision
adding a similar artificial meaning to the word
"employer" or to the expression "terms and condi
tions of employment" in the definition of "collec-
tive agreement" although the power of the Canada
Labour Relations Board to deal with the applica
tions for certification that are the subject matter of
the judgment appealed from is dependent upon
reading those expressions as though such meanings
have been impliedly added.)
All the applications for certification giving rise
to the proceedings in this case follow the same
general pattern. The appellant makes the applica-
5 Compare Reference re Validity of the Industrial Relations
and Disputes Investigation Act [ 1955] S.C.R. 529.
6 Presumably every work, undertaking or business is within
the legislative authority of Parliament in so far as certain laws,
such as criminal laws, are concerned.
7 See section 107(1).
tion as a "trade union", one of the processors is
shown, by the application, as the "employer" and
the "bargaining unit" desired is described, by the
application, as consisting of "fishermen" delivering
to the processor under terms of agreements "pro-
viding payment to said fishermen of a percentage
of the proceeds received from fish so delivered, in
the Province of British Columbia and adjacent
waters."
The principal attack, made by the processors by
the application in the Trial Division, on the juris
diction of the Board to grant certification to the
appellant pursuant to such applications is that the
subject matter of the "law" authorizing such cer
tification, if the Canada Labour Code does author
ize it, is beyond the legislative authority of the
Canadian Parliament. The subsidiary attack,
which need not be considered unless the first
attack fails, is that, properly construed, the
Canada Labour Code does not authorize certifica
tion in the circumstances of this case.
The attack based on the unconstitutionality of
the portion of the Canada Labour Code in ques
tion involves a consideration of the following provi
sions of the British North America Act:
91. It shall be lawful for the Queen, by and with the Advice
and Consent of the Senate and House of Commons, to make
Laws for the Peace, Order, and good Government of Canada,
in relation to all Matters not coming within the Classes of
Subjects by this Act assigned exclusively to the Legislatures of
the Provinces; and for greater Certainty, but not so as to
restrict the Generality of the foregoing Terms of this Section, it
is hereby declared that (notwithstanding anything in this Act)
the exclusive Legislative Authority of the Parliament of
Canada extends to all Matters coming within the Classes of
Subjects next herein-after enumerated; that is to say,-
2. The Regulation of Trade and Commerce.
12. Sea Coast and Inland Fisheries.
15. Banking, Incorporation of Banks, and the issue of Paper
Money.
16. Savings Banks.
24. Indians, and Lands reserved for the Indians.
29. Such Classes of Subjects as are expressly excepted in the
Enumeration of the Classes of Subjects by this Act assigned
exclusively to the Legislatures of the Provinces.
And any Matter coming within any of the Classes of Subjects
enumerated in this Section shall not be deemed to come within
the Class of Matters of a local or private Nature comprised in
the Enumeration of the Classes of Subjects by this Act assigned
exclusively to the Legislatures of the Provinces.
92. In each Province the Legislature may exclusively make
Laws in relation to Matters coming within the Classes of
Subjects next herein-after enumerated; that is to say,-
10. Local Works and Undertakings other than such as are of
the following Classes:—
a. Lines of Steam or other Ships, Railways, Canals, Tele
graphs, and other Works and Undertakings connecting the
Province with any other or others of the Provinces, or
extending beyond the Limits of the Province:
b. Lines of Steam Ships between the Province and any
British or Foreign Country:
c. Such Works as, although wholly situate within the
Province, are before or after their 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.
13. Property and Civil Rights in the Province.
16. Generally all Matters of a merely local or private Nature
in the Province.
At the outset, it must be emphasized that this is
not a case where the law attacked is a law regulat
ing relations between an employer and persons
employed by that employer under contracts for
services.' The law attacked in this case is rather a
law that, for purposes of the constitutional attack,
is assumed to be a law regulating the negotiation
of contracts for the sale or other disposition of fish
by fishermen who are "not employed by an
employer" to a processor who is not their employ
er. Such law may be regarded, if the necessary
assumptions are made to give it the effect that all
parties seem to assume that it was intended to
have, as a law regulating the sale of fish or as a
law regulating that part of the business of fishing
or of a "fisheries" business that constitutes dispos
al of the fish after they have been caught.
In my view, assuming that Part V of the Canada
Labour Code can be read as impliedly extending
the meaning of the word "employer" to a person in
the position of a processor in this case and as
impliedly extending the meaning of "terms and
8 In respect of such employees, Part V of the Canada Labour
Code would appear to be a compound of a number of "laws",
within the meaning of that word in section 91, each of which is
in relation to a particular class of activity or class of business
that falls within some portion of section 91.
conditions of employment" to the terms on which
fishermen sell or dispose of fish to a processor, the
"law" resulting from extension of Part V to the
regulation of such sales or dispositions is clearly
not within the authority conferred on Parliament
by section 91 of the British North America Act
unless it can be regarded as a law "in relation to"
a matter coming within the class of subjects set out
in section 91(12), namely "Sea Coast and Inland
Fisheries". In my view it is not fairly arguable, and
it was not argued in this Court, that, as framed,
such "law" is a law in relation to a subject falling
within
(a) "The regulation of trade and commerce"
(as section 91(2) has been interpreted by the
jurisprudence), 9
(b) "Indians",
(c) a work or undertaking to which section
91(29) applies,
(d) the implementation of treaties, or
(e) any other class of subjects not assigned by
the British North America Act to the legisla
tures of the provinces.
With considerable hesitation, I have concluded
that, as framed, such law is not a law in relation to
a subject falling within the class of subjects "Sea
Coast and Inland Fisheries". '°
In so far as prior decisions are concerned, sec
tion 91(12) has not been found to go beyond what
may be described conveniently, but not precisely,
as police regulation of "fisheries" regarded as
9 Compare Attorney General for British Columbia v. Attor
ney General for Canada [1973] A.C. 377.
10 By virtue of section 108 of the Canada Labour Code, Part
V only applies to persons employed upon or in connection with
the operation of a "work", an "undertaking" or a "business".
Constitutionally, a local work or undertaking in a province is,
as such, within the legislative jurisdiction of the provincial
legislature unless it falls within paragraph a., b. or c. of section
92(10) of the British North America Act and it is not suggested
here that the law under attack can be supported as a law in
relation to such a work or undertaking or a work or undertak
ing that is not a local work or undertaking in any province. It
must, therefore, be supported, if it is to be supported, as being
in relation to a "business" that falls within section 91.
property rights, the activity of removing fish from
the water or the places where that activity is
carried on. Clearly, so regarded, section 91(12) is
not broad enough to authorize a law in relation to
the sale of fish after it has been caught." The
difficult question raised by this case is whether the
word "fisheries" in section 91(12) also embraces a
fishing or "fisheries" business as such, in which
event, a law regulating the business could regulate
the whole of the management of the business,
which would include labour relations between the
operator of the business and his employees and the
disposition of the fish after it is taken from the
water.
Without pretending to have made a careful
analysis of all the cases, reading sections 91 and 92
of the British North America Act together, in the
light of the study that I made of the decisions with
reference to section 91(2) for the purposes of
MacDonald v. Vapor Canada Limited, 12 it would
seem to me that the regulation of businesses as
such has been carved out of section 91(2) by
decisions that are binding on this Court and has
been left to the provincial legislatures as being the
regulation of matters of a merely local or private
nature in the respective provinces except where the
regulation of a particular class of business falls
within a specific portion of section 91, such as
(a) a head of section 91 enumerating a specific
class of business such as "banking",
(b) a work or undertaking (which has been held
to extend to "management") 13 that is èxcluded
from section 92 by section 92(10) and thus falls
within section 91(29), or
(c) the introductory words of section 91, where
the circumstances make resort thereto
appropriate.
Most other heads of federal power, as it seems to
me, relate to subject matters other than the regula
tion of businesses as such—although a particular
law of some other character, such as a criminal
11 Compare Attorney General for Canada v. Attorney Gener
al for British Columbia [1930] A.C. 111.
12 [ 1972] F.C. 1156 (see page 1164).
13 Compare Canadian Pacific Railway v. Bonsecours [1899]
A.C. 367 per Lord Watson at page 372.
law, may substantially affect the operation of busi
nesses. It follows that, as I read the relevant
provisions of the British North America Act, heads
such as "Navigation and Shipping" and "Sea
Coast and Inland Fisheries" like heads such as
"weights and measures" and "criminal law" pro
vide for laws in relation to activities of the kind
specified whether carried on by persons engaged in
business or otherwise and are not heads under
which the carrying on of a business as such can be
regulated. With some hesitation, therefore,
because I am only too aware that there are dicta in
the decisions, and there are portions of the defini
tion of "federal work, undertaking or business" in
the Canada Labour Code, that do not seem to
accord with my reasoning, I have concluded that
section 91(12) authorizes Parliament to make laws
in relation to "fisheries" but does not extend
beyond that to the making of laws in relation to
things reasonably incidental to carrying on a fish
ing business, such as labour relations and disposi
tion of the products of the business, when such
things do not in themselves fall within the concept
of "fisheries".
I am of opinion, therefore, that the appeal
should be dismissed. Counsel should be heard on
the question of costs.
* * *
The following are the reasons for judgment
delivered orally in English by
SHEPPARD D.J.: I agree that the wording of
section 91(12) of the British North America Act,
namely, "Sea Coast and Inland Fisheries" does not
extend to the regulating of the business of fishing
as such and the appeal is therefore dismissed.
* * *
The following are the reasons for judgment
delivered orally in English by
SMITH D.J.: I have had the advantage of read
ing the reasons for judgment of my lord the Chief
Justice and agree with him that this appeal should
be dismissed. I fully agree that in the light of prior
decisions head 12 of the British North America
Act, "Sea Coast and Inland Fisheries", is not
broad enough to authorize Parliament to enact
legislation in relation to the business of fishing, in
so far as that business is concerned with labour
relations or with the sale of fish after they have
been caught.
Jackett C.J., quite logically groups head 10 of
section 92 of the British North America Act,
"Navigation and Shipping", with head 12 of sec
tion 91 in holding that the word "Shipping" does
not include the business of shipping. However, in
view of some of the opinions expressed in the
Supreme Court of Canada in Reference re The
Industrial Relations and Disputes Investigation
Act, R.S.C. 1952, c. 152 and its applicability in
Respect of Certain Employees of the Eastern
Canada Stevedoring Company Limited [1955]
S.C.R. 529, I am in some doubt whether head 10
of section 92 can safely be grouped in this way
with head 12 of section 91. In any event the point
is not before us in this appeal.
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.