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A-486-75
City of Yellowknife (Applicant) v.
Canada Labour Relations Board and Public Ser vice Alliance of Canada (Respondents)
Court of Appeal, Thurlow, Urie and Ryan JJ.— Ottawa, November 6 and 20, 1975.
Judicial review—Canada Labour Relations Board certifying respondent Alliance as bargaining agent for certain employees of applicant—Whether Part V of Canada Labour Code applies to employees of applicant—Canada Labour Code, R.S.C. 1970, c. L-1, ss. 2, 108 as am. S.C. 1972, c. 18—Municipal Ordinance, R.O.N.W.T. 1974, c. M-15—Northwest Territories Act, R.S.C. 1970, c. N-22, ss. 13 (c),(1),(h),(s),(u),(x)—British North America Act, ss. 91(29), 92(8),(10),(13),(16).
The Canada Labour Relations Board certified the PSAC as bargaining agent for employees (with certain exceptions) of applicant, a municipality incorporated by the Commissioner in Council of the Northwest Territories under the Municipal Ordinance. Applicant applies to review and set aside the deci sion, claiming that the Canada Labour Code, Part V, does not apply to its employees.
Held, the Board lacked jurisdiction. Absent from powers conferred on the Commissioner in Council is any power corre sponding to that of a provincial legislature under section 92(10) of the British North America Act with respect to local works and undertakings. Section 108 of the Canada Labour Code applies "in respect of employees ... employed upon or in connection with ... any federal work, undertaking or business." This expression is defined in section 2, and the key words are "work, undertaking or business." The use of this expression in its context in the definition coupled with the use of the expres sion "federal work, undertaking or business" so defined con fines the operation of the Act to works, undertakings and businesses with respect to which Parliament has authority to legislate. The statute should be read as legislation with respect to works and undertakings that are under federal legislative jurisdiction, whether by reason of section 91(29) and the exceptions to section 92(10) of the B.N.A. Act, or otherwise, and to businesses subject to federal legislative jurisdiction. "Business" seems to refer primarily to commercial or industrial matters, not to activities or functions as a whole normally carried out by a municipal corporation. Nor are these activities as a whole a work or undertaking within the meaning of the expression. The Board erred in treating the whole opération of the City as a "work, undertaking or business" within the meaning of the definition.
Toronto Electric Commissioners v. Snider [1925] A.C. 396, applied.
JUDICIAL review. COUNSEL:
G. A. Lucas for applicant.
D. Aylen, Q.C., for respondent Canada
Labour Relations Board.
M. Joyal, Q. C., and G. Robichon for respond
ent Public Service Alliance of Canada.
SOLICITORS:
Station & Lucas, Edmonton, for applicant.
Deputy Attorney General of Canada for respondent Canada Labour Relations Board.
Honeywell, Wotherspoon, Ottawa, for respondent Public Service Alliance of Canada.
The following are the reasons for judgment rendered in English by
THURLOW J.: This is an application to review and set aside a decision of the Canada Labour Relations Board certifying the respondent, Public Service Alliance of Canada, under section 126 of the Canada Labour Code, as the bargaining agent for a unit of employees of the applicant comprising:
All employees of the City of Yellowknife, Northwest Territo ries, excluding those employed as secretary-treasurer-manager, assistant secretary-treasurer, solicitor, consulting planning engineer, superintendent, assistant works superintendent, city clerk, executive assistant, executive secretary, accountant, pur chasing agent, chief law enforcement officer, law enforcement constable, fire chief, deputy fire chief, fire captain, fire preven tion officer, fireman, and fire fighter, and excluding the part- time employee in charge of the Hardie House way station.
The principal issue raised is whether Part V of the Canada Labour Code applies to the employees of the applicant. A second issue is whether the Board erred in holding that the constitution of PSAC permitted the admission of the employees in ques tion as members of the Alliance.
The applicant is a municipal corporation incor porated under legislation passed by the Commis sioner in Council of the Northwest Territories. Its establishment, organization, proceedings, powers and functions are prescribed by the Municipal
Ordinance, chapter M-15 of the Revised Ordi nances of the Northwest Territories, 1974. Its activities include the making and enforcement of local by-laws, the raising of money for municipal purposes by land taxation and licensing of busi nesses, and the provision of normal municipal or local government services such as fire protection, building inspection, snow removal, garbage collec tion, recreational facilities, the opening and main tenance of streets, water supply and sewers.
Its employees, apart from those classed as man agement, include personnel engaged in general administration, building inspection, licensing, fire protection, by-law enforcement, and operating the recreational facilities and the public works depart ment which provides the sewer, water and other city services. Some of these employees have been excluded from the bargaining unit as defined by the Board's certificate, but the definition itself is all embracing, save for particular exceptions, and is not related to the employees engaged in any single or particular facet of the applicant's activities.
The Commissioner in Council of the Northwest Territories is established as a legislative body for the Territories by the Northwest Territories Act, R.S.C. 1970, c. N-22. Its legislative powers resemble those of the provincial legislatures. In particular the Commissioner in Council is author ized by section 13, subject to the Act, and any other Act of the Parliament of Canada, to make ordinances in relation to:
(c) municipal institutions in the Territories, including local administrative districts, school districts, local improvement districts and irrigation districts;
(h) property and civil rights in the Territories;
(x) generally, all matters of a merely local or private nature in the Territories.
Noticeably absent from the powers conferred is any power corresponding to that of provincial legislatures under head (10) of section 92 of the British North America Act, 1867, with respect to
local works and undertakings. The powers, how ever, include:
(f) the incorporation of companies with territorial objects including tramways and street railway companies but exclud ing railway, steamship, air transport, canal, telegraph, tele- _
phone or irrigation companies.
(s) the closing up, varying, opening, establishing, building, management or control of any roads, streets, lanes or trails on public lands;
(u) the establishment, maintenance and management of hos pitals in and for the Territories;
I turn now to Part V of the Canada Labour Code. Section 108 provides:
108. This Part applies in respect of employees who are employed upon or in connection with the operation of any federal work, undertaking or business and in respect of the employers of all such employees in their relations with such employees and in respect of trade unions and employers' organ izations composed of such employees or employers.
The expression "federal work, undertaking or business" is defined by section 2 of the Act as
meaning:
... any work, undertaking or business that is within the legisla tive authority of the Parliament of Canada, including without restricting the generality of the foregoing:
(a) a work, undertaking or business operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship anywhere in Canada;
(b) a railway, canal, telegraph or other work or undertaking connecting any province with any other or others of the provinces, or extending beyond the limits of a province;
(c) a line of steam or other ships connecting a province with any other or others of the provinces, or extending beyond the limits of a province;
(d) a ferry between any province and any other province or between any province and any other country other than Canada;
(e) aerodromes, aircraft or a line of air transportation;
(f) a radio broadcasting station;
(g) a bank;
(h) a work or undertaking that, although wholly situated within a province, is before or after its execution declared by the Parliament of Canada to be for the general advantage of Canada or for the advantage of two or more of the provinces; and
(i) a work, undertaking or business outside the exclusive legislative authority of provincial legislatures;
For present purposes the important part of this definition is the expression "work, undertaking or business," which appears in the general outline and in paragraphs (a) and (i). The use of this
expression in its context in the definition, coupled with the use of the expression "federal work, undertaking or business" so defined, appears to me to confine the operation of the statute to works, undertakings and businesses in respect to which Parliament has authority to legislate. While it may incidentally affect the rights of parties concerned the statute is not to be regarded as legislation in relation to property or civil rights in any province. If it were to be so regarded it would, at least as far as concerns any of the provinces, be ultra vires. Toronto Electric Commissioners v. Snider'. It should be read and interpreted as legislation in relation to works and undertakings that are under federal legislative jurisdiction, whether by reason of the effect of head (29) of section 91 and the exceptions to head (10) of section 92 of the British North America Act, 1867, or otherwise, and to businesses which are the subject of federal legisla tive jurisdiction.
With respect to businesses, banking is a ready example. But while the word "business" is not confined or restricted to that subject matter it seems to me that in its context in the definition, preceded as it is in each instance by the words "work, undertaking or", it does not have the very broad meaning it might have in other contexts. Without attempting any definition of the term in its context it seems to me to refer primarily to activities of a commercial or industrial nature. It does not appear to me to refer to the activities or functions, as a whole, normally carried out by municipal corporations, even though in the ordi nary use of language such activities and functions can readily be called the business of such a corporation.
Nor do I think these activities, as a whole, are a work or undertaking within the meaning of the expression. These words appear to me to be used in the same sense as they are used in head (10) of section 92 of the British North America Act, 1867. Head (10) is one of sixteen heads of legislative subjects which include heads (8), "Municipal Institutions in the Province", (13), "Property and Civil Rights in the Province", and (16) "Generally all Matters of a merely local or private Nature in the Province". In this context it would I think be
[1925] A.C. 396.
strained to hold that legislation in respect of the normal activities, as a whole, of a municipal corpo ration set up to carry out functions of local govern ment and to provide normal municipal services was referable to the power to legislate in relation to local works and undertakings. Some of the activi ties which a municipal institution is authorized to carry out might be referable to that legislative subject but that is a very different thing from saying that all the various activities of such a local government institution as a whole constitute a local work or undertaking within the meaning of that head.
Here what the Board appears to have done is to treat the whole operation of the City of Yellow- knife as a "work, undertaking or business" within the meaning of the definition and to proceed to certify a bargaining agent for a bargaining unit comprising (with certain particularized excep tions) all the City's employees.
In my opinion, the Board in so doing exceeded its jurisdiction and the certificate should therefore be set aside. In view of this conclusion it is un necessary to consider the second issue raised by the applicant.
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URIE J. concurred.
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RYAN J. concurred.
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