A-737-84
Bernshine Mobile Maintenance Ltd. (Applicant)
v.
Canada Labour Relations Board (Respondent)
Court of Appeal, Urie, Ryan and Hugessen .lJ.—
Winnipeg, September 18; Ottawa, October 8,
1985.
Labour relations — Jurisdiction of Canada Labour Rela
tions Board — Reimer, interprovincial transportation business
within federal jurisdiction, contracting with applicant for vehi
cle maintenance work previously done by Reimer employees —
Issue of Board's jurisdiction over applicant raised when Union
complained transaction sale of business within Code s. 144 —
Whether applicant's maintenance activities integral part of
Reimer business, giving Board jurisdiction over applicant —
Application of tests in Supreme Court of Canada cases (Tele-
com Nos. I and 2) to determine whether services provided by
applicant vital, essential and integral part of Reimer's opera
tions — Canada Labour Code, R.S.C. 1970, c. L-1, s. 144 (as
am. by S.C. 1972, c. 18, s. 1), (1),(2),(5) — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 18.
Constitutional law — Distribution of powers — Labour
relations — Federal jurisdiction where integral to federal
competence over federal work, undertaking or business
Interprovincial trucking business being federal undertaking —
Contracting out tire maintenance and vehicle washing to com
pany under provincial jurisdiction — Whether latter becoming
federal undertaking — Factors to be considered in determining
constitutional competence — Supreme Court of Canada cases
on issue reviewed — Upon application of case law to facts,
labour relations jurisdiction over employees in question that of
core undertaking.
Reimer Express Lines Limited (Reimer) is in the business of
interprovincial road transportation and general freight haulage.
Being a federal undertaking, its labour relations fall under the
jurisdiction of the Canada Labour Relations Board (the
Board). Reimer did its own tire maintenance and vehicle
washing until it contracted that work out to the applicant, a
company incorporated under the laws of Manitoba whose
labour relations normally fall under provincial jurisdiction. The
work was done in Reimer's fully equipped wash bay and trailer
shop bay which Reimer leased to the applicant. In the relevant
period, the Reimer contract was the applicant's only business.
The union representing the Reimer maintenance men,
mechanics and washmen sought a declaration that the contract
ing out amounted to a sale of business from Reimer to Bern-
shine within the meaning of section 144 of the Canada Labour
Code. The Board declared that there had been a sale. The
Board held that it had constitutional jurisdiction over the
applicant on the basis that its activities constituted an integral
part of the Reimer business.
The issue in this section 28 application is whether the Board
has constitutional jurisdiction over the applicant because Bern-
shine's services are vital, essential and integral to the operation
of Reimer's federal undertaking.
Held, the application should be dismissed.
The tests to determine whether the Board has jurisdiction
over a company whose labour relations normally fall under
provincial jurisdiction were enunciated by the Supreme Court
of Canada in Telecom No. 1 and applied in L'Anglais and
Telecom No. 2.
(1) With respect to the test of the relationship of the
applicant's activities to the "core federal undertaking" i.e.
Reimer, it was found that there were virtually no Bernshine
operations other than those performed for Reimer.
(2) With respect to the test of corporate relationship, the fact
is that there was none, but that alone is not determinative of
the jurisdictional question.
(3) With respect to the test of the importance of the Reimer
contract for the applicant, it was determined that Reimer was
then the applicant's only customer.
(4) With respect to the test of the physical and operational
connection between the applicant and Reimer, it was found as a
fact by the Board, with ample evidence to support that finding,
that the work performed by the applicant for Reimer was an
integral part of Reimer's federal undertaking.
The fact that the work is relatively simple does not affect its
essentiality.
CASES JUDICIALLY CONSIDERED
APPLIED:
Northern Telecom Ltd. v. Communications Workers of
Canada, [1980] 1 S.C.R. 115; Northern Telecom Canada
Ltd. et al. v. Communication Workers of Canada et al.,
[1983] 1 S.C.R. 733; 147 D.L.R. (3d) 1.
REFERRED TO:
Reference re Industrial Relations and Disputes Act,
[1955] S.C.R. 529; Letter Carrier's Union of Canada v.
Canadian Union of Postal Workers et al., [1975] 1
S.C.R. 178; Construction Montcalm Inc. v. Minimum
Wage Commission, [1979] 1 S.C.R. 754; Canada Labour
Relations Board et al. v. Paul L'Anglais Inc. et al.,
[1983] 1 S.C.R. 147; 146 D.L.R. (3d) 202.
COUNSEL:
Grant Mitchell for applicant.
A. R. McGregor, Q.C. for General Teamsters
Local 979.
Dianne Pothier for respondent.
SOLICITORS:
Taylor, Brazzell, McCaffrey, Winnipeg, for
applicant.
Simkin, Gallagher, Winnipeg, for General
Teamsters Local 979.
Canada Labour Relations Board on its own
behalf.
The following are the reasons for judgment
rendered in English by
URIE J.: This is an application under section 28
of the Federal Court Act [R.S.C. 1970 (2nd
Supp.), c. 10] to review and set aside a decision of
the Canada Labour Relations Board (the
"Board") declaring that a transaction between
Reimer Express Lines Limited ("Reimer") and
Bernshine Mobile Maintenance Ltd. ("Bern-
shine") constituted a sale of a business within the
meaning of section 144 of the Canada Labour
Code [R.S.C. 1970, c. L-1 (as am. by S.C. 1972, c.
18, s. 1)], that Bershine was, therefore, a successor
employer to Reimer and since Reimer's business is
a work upon or in connection with a federal work,
undertaking or business, so is Bernshine's thus
conferring constitutional jurisdiction on the Board
to make the decisions in respect of the section 144
application.
I
THE FACTS
Reimer is in the business of interprovincial road
transportation and general freight haulage. Its
routes extend west from its home base at Winnipeg
to Vancouver and east to Toronto and Montreal.
Reimer has been a party to a voluntary labour
relationship with the General Teamsters Local 979
(the "Teamsters") for many years. The scope of
the bargaining unit represented by the Teamsters,
relevant to these proceedings, is limited to city
pick-up and delivery drivers, warehousemen, dock-
men, maintenance men, mechanics and washmen.
The evidence discloses that until Reimer entered
into two contracts with Bernshine (to which more
detailed reference will be made shortly) it had
used its own employees for tire maintenance and
for vehicle and trailer interior and exterior wash
ing. Albert Bernshine had, for some six years, been
employed by Reimer in that phase of the opera
tions. He was then a member of the Teamsters
local and his job was included in the bargaining
unit. Because he expressed the desire to get into
business for himself, he approached a Reimer
executive and negotiated an agreement to provide
the tire maintenance and washing services thereto-
fore performed by Reimer's own employees. He
then caused Bernshine to be incorporated as a
Manitoba company. It is wholly owned by him.
Two agreements each dated August 11, 1983 were
entered into between Reimer and Bershine. The
first was a lease whereby Reimer leased to Bern-
shine its fully equipped wash bay and trailer shop
bay in its maintenance building at 100 Milner
Street in Winnipeg for a monthly rental of $1000
increased in 6 months to $1050 per month. Reimer
remained responsible for maintaining the premises
and equipment in good repair.
The second agreement was for the provision of
the maintenance and washing of all tractors and
trailers used in Reimer's highway operations for a
flat monthly fee. Bernshine warranted that it had
or would obtain sufficient personnel to carry out
the contractual duties required of it.
Each agreement was for a term of one year
subject to termination by either party on 30 days'
notice.
There is some evidence that a very small amount
of business has been generated outside of the
Reimer contract but as the Board held:
... the reality is that at the present time the Reimer contract is
his [Bernshine's] only business. Bernshine's employees perform
the same tasks that Reimer's employees did. Not only does
Bernshine operate on Reimer's premises, it also uses Reimer's
equipment and supplies including soap, tires and even tire
patches. Bernshine's only input is labour just the same as the
Teamsters' members had been who were laid off.
It is abundantly clear from the evidence that the
maintenance of tires is very important to Reimer
and for competitive, as well as hygienic reasons,
clean trucks and clean trailers, both interior and
exterior, are important.
In particular, paragraph 2 of the performance
agreement dated August 11, 1983 expressly recog
nizes the importance of tire maintenance to the
Reimer operations. It states that Bernshine repre
sents and warrants "that it has or will obtain
sufficient personnel and equipment to carry out its
duties in maintaining the said tires used by
Reimer ... in good operation condition at all
times, recognizing that the said tires are critical to
the successful operation of Reimer ... and that it
will be necessary to provide repairs and mainte
nance on a daily continual 24 hour basis, including
Sundays and holidays."
II
THE ISSUE
The Teamsters' complaint to the Board that the
contracting out of the tire and wash services con
stituted an unfair labour practice on the part of
both Reimer and Bernshine was dismissed by the
Board. As earlier stated, the Teamsters also sought
a declaration from the Board that the contracting
out amounted to a sale of business from Reimer to
Bernshine within the meaning of section 144 of the
Canada Labour Code.
The relevant subsections of that section read as
follows:
144. (1) In this section,
"business" means any federal work, undertaking or business
and any part thereof;
"sell", in relation to a business, includes the lease, transfer and
other disposition of the business.
(2) Subject to subsection (3), where an employer sells his
business,
(a) a trade union that is the bargaining agent for the
employees employed in the business continues to be their
bargaining agent;
(b) a trade union that made application for certification in
respect of any employees employed in the business before the
date on which the business is sold may, subject to this Part,
be certified by the Board as their bargaining agent;
(c) the person to whom the business is sold is bound by any
collective agreement that is, on the date on which the busi
ness is sold, applicable to the employees employed in the
business; and
(d) the person to whom the business is sold becomes a party
to any proceeding taken under this Part that is pending on
the date on which the business was sold and that affects the
employees employed in the business or their bargaining
agent.
(5) Where any question arises under this section as to
whether or not a business has been sold or as to the identity of
the purchaser of a business, the Board shall determine the
question.
The Board made a declaration that there had
been a sale of business from Reimer to Bernshine
within the meaning of the section. In making that
declaration, the Board held, contrary to what
Bernshine alleged, that it had constitutional juris
diction over Bernshine on the basis that, although
Bernshine has no corporate relationship with
Reimer, its activities constitute an integral part of
the Reimer business which is conceded by all
parties to be a federal core undertaking. In a
constitutional sense, then, Bernshine's operations
in relation to the Reimer agreements were federal
and thus were within the constitutional jurisdiction
of the Board.
The sole issue in this application then is, does
the Board have the constitutional jurisdiction
which it claims over Bernshine because its business
of providing tire repair services and tractor and
trailer washing services to Reimer was vital, essen
tial and integral to the operation of Reimer's
federal undertaking of interprovincial truck trans
portation?
III
THE JURISPRUDENCE
The principles applicable in cases of this kind
have evolved over many years and are now well
defined. Nonetheless, their application presents, as
in this case, some difficulty. A brief review of the
jurisprudence from which the principles were de
veloped would be useful.
It is by now trite law that federal jurisdiction
over labour relations is an exception to the general
rule of provincial competence in the field. Federal
jurisdiction over labour relations arises when such
jurisdiction is integral to federal competence over
some federal work, undertaking or business. As
stated earlier, it is common ground that Reimer's
transportation business, by reason of its interpro-
vincial character, is a federal undertaking. Wheth
er the contracting out of its tire maintenance and
vehicle and trailer washing services to a company
which, from a labour relations point of view, falls
normally under provincial jurisdiction is, likewise,
a federal undertaking is the neat question requir
ing resolution in this case.
The definitive judgment of the Supreme Court
of Canada is Northern Telecom Canada Ltd. et al.
v. Communication Workers of Canada et al.,
[1983] 1 S.C.R. 733; 147 D.L.R. (3d) 1 [Telecom
No. 2]. There Estey J. (with whom Ritchie J.,
McIntyre J. and Lamer J., concurred) reviewed
the historical background of proceedings before
labour boards and courts as well as leading
Supreme Court decisions such as Reference re
Industrial Relations and Disputes Act, [1955]
S.C.R. 529 (the Stevedoring case); Letter Carri
er's Union of Canada v. Canadian Union of Postal
Workers et al., [1975] 1 S.C.R. 178; Construction
Montcalm Inc. v. Minimum Wage Commission,
[1979] 1 S.C.R. 754. No useful purpose would be
served in further discussion of those and other
decisions reviewed by Mr. Justice Estey. Suffice it
to say, that based thereon the majority of the
Court concluded that installers of Northern Tele-
com equipment performed work which was an
integral part of the operations of Bell Canada's
telecommunications system which all parties
agreed was a federal undertaking.
In Northern Telecom Ltd. v. Communications
Workers of Canada, [1980] 1 S.C.R. 115 (Tele-
com No. 1) Dickson J. (as he then was), speaking
on behalf of the Court, found that the record then
before the Court lacked essential constitutional
facts to enable the Court to determine the issue of
whether or not Telecom's installers, when install
ing equipment for Bell Canada on its premises,
were engaged in a federal undertaking. In so find
ing, Mr. Justice Dickson outlined the nature of the
inquiries necessary to elicit the facts required to
determine constitutional competence, dividing
them into four general categories. The categories
are the following [page 135]:
(1) the general nature of Telecom's operation as a going
concern and, in particular, the role of the installation
department within that operation;
(2) the nature of the corporate relationship between Telecom
and the companies that it serves, notably Bell Canada;
(3) the importance of the work done by the installation depart
ment of Telecom for Bell Canada as compared with other
customers;
(4) the physical and operational connection between the instal
lation department of Telecom and the core federal under
taking within the telephone system and, in particular, the
extent of the involvement of the installation department in
the operation and institution of the federal undertaking as
an operating system.
In Telecom No. 2, Dickson J. in his concurring
opinion, approached the characterization of the
work done by the Telecom installers by utilization
of the facts elicited in the inquiries under the
previous four categories. In his reasons for judg
ment, Estey J. had this to say [at pages 755-756
S.C.R.; 25-26 D.L.R.] in response to the queries
necessary to satisfy the four guidelines:
The federal core undertaking there and here is of course the
Bell interprovincial telecommunications network. The subsidi
ary operation is that of Telecom carried on by the Telecom
installers in the installation in this network of switching and
transmission equipment manufactured in the main by Telecom
though some of the equipment so installed derives from other
sources. The corporate relationship between Bell and Telecom
was the subject of argument here and below. Telecom is a
wholly-owned subsidiary of Northern Telecom Limited which
in turn is 60.5 per cent owned by Bell. For some years prior to
1973, 100 per cent of the shares of Northern Telecom Limited
were owned by Bell, but since that date, 39.5 per cent of the
shares have been held by the public. Thus assisted by the
extensive record in this appeal which was denied to the courts
in Telecom 1980, these four directing guidelines may be
reduced to fit the facts and issues here in this way:
1. The principal and dominant consideration in determining
the application of the principle enunciated in the Steve
dores' case is an examination of "the physical and opera
tional connection" between the installers of Telecom and
the federal core undertaking, the telephone network, and
in particular the extent of the involvement of the installers
in the establishment and operation of the federal undertak
ing as an operating system. I have here taken the liberty of
paraphrasing in the terminology of the present record
consideration numbered 4 above as enunciated by Dickson
J. in the 1980 judgment of this court.
2. The constitutional assessment by the judicial tribunal of
the appropriate assignment of labour relations jurisdiction-
ally then must consider, as a subsidiary but not unimpor
tant consideration:
(a) the importance of the work done by the installers of
Telecom for Bell as compared with other customers of
Telecom (and here again I respectfully adopt the
language of Dickson J. from consideration no. 3,
supra); and,
(b) the corporate interrelationship between Bell and Telecom
(consideration no. 2 in the 1980 judgment of Dickson
J. The consideration raised in Point 1 of the Telecom
1980 judgment, supra, is discussed later in these
reasons).
Later in his reasons Estey J. concluded that the
corporate relationship of Bell and Telecom was not
a factor bearing on the outcome of that litigation.
Thus, category 2 of the four categories was
answered. Insofar as category 1 was concerned,
after analyzing the facts he concluded at pages
766-767 S.C.R.; 35 D.L.R. that:
The almost complete integration of the installers' daily work
routines with the task of establishing and operating the tele
communications network makes the installation work an inte
gral element in the federal works. The installation teams work
the great bulk of their time on the premises of the telecom
munications network. The broadening, expansion and refurb
ishment of the network is a joint operation of the staffs of Bell
and Telecom. The expansion or replacement of the switching
and transmission equipment, vital in itself to the continuous
operation of the network, is closely integrated with the com
munications delivery systems of the network. All of this work
consumes a very high percentage of the work done by the
installers.
While the facts in the two Telecom cases are
substantially different from those in the case at
bar, the tests enunciated by Dickson J. in Telecom
No. 1 and applied by the concurring opinions of
the majority in Telecom No. 2, are wholly appli
cable, it seems to me, in determining the constitu
tional competence of the Board in this case.
Before leaving the jurisprudential aspect of this
case, it should be observed that in the case of
Canada Labour Relations Board et al. v. Paul
L'Anglais Inc. et al., [1983] 1 S.C.R. 147; 146
D.L.R. (3d) 202, decided just a few months before
the judgment in Telecom No. 2 and which was
heavily relied upon by counsel for the appellant
here, the Supreme Court applied the Telecom
No. 1 tests and principles although, on the facts of
that case, reached the conclusion that the activities
of two subsidiaries of what was conceded to be a
core federal undertaking, were not integral, vital
or essential to the core undertaking. Their
employee relations were, thus, not within the con
stitutional jurisdiction of the Canada Labour
Relations Board.
Iv
APPLICATION OF THE JURISPRUDENCE
It was the contention of counsel for the appel
lant that the Board decision under review failed to
apply the tests enunciated in Telecom No. 1 and
applied in L'Anglais and Telecom No. 2. He fur
ther submitted, inter alfa, in his Memorandum of
Fact and Law, the following in support of his
contention that the kinds of matters considered
relevant to determine the L'Anglais case were
equally relevant in this case and should have been
considered by the Board here:
1. Bernshine's activities of washing trucks and repairing tires
are not activities within the competence of Parliament.
2. Those activities are not an integral part of operating
Reimer's interprovincial trucking business making it neces
sary for the Federal Government to exercise jurisdiction
over the employees of Bernshine.
3. Bernshine holds out its services of washing trucks and
repairing tires to the public at large. At the time of the
hearing, after only six months in operation, Reimer was its
principal customer but in time, Bernshine hopes to attract
a wide variety of customers because it is in his self-interest
to become independent of Reimer.
4. A business may provide truck washing and tire repair
service to trucks that travel interprovincially without
thereby becoming an interprovincial business.
5. By an analogy to the Paul L'Anglais case, this Court may
pose the question whether activities such as washing trucks
and repairing tires would fall within the field of provincial
trucking if performed by a company unrelated to the
company that operates the federal undertaking. The Court
in Paul L'Anglais concluded that the answer was "clearly
no" (p. 169 S.C.R.; 219 D.L.R. supra). Selling truck
washing and tire repair services does not make the provider
of these services a federal work. Furthermore these activi
ties are not indispensable to operating an interprovincial
trucking business. Indeed, Reimer obtains these services
across Canada by contracting out the bulk of its mainte
nance to businesses no more or no less unrelated to Reimer
than Bernshine except that the latter leases space and
equipment from Reimer. These leases are arms's length
transactions as the facts set out indicate.
To answer these submissions, it would be useful
to adapt the tests from Telecom No. 1, to the facts
of this case.
(1) The general nature of Reimer's operation as a going
concern and, in particular, the role of the tire maintenance
and tractor and trailer washing services as part of that
operation.
At page 133 of the judgment in Telecom No. 1,
Dickson J. said:
In the case at bar, the first step is to determine whether a
core federal undertaking is present and the extent of that core
undertaking. Once that is settled, it is necessary to look at the
particular subsidiary operation, i.e., the installation department
of Telecom, to look at the "normal or habitual activities" of
that department as "a going concern", and the practical and
functional relationship of those activities to the core federal
undertaking.
In making these investigations in Telecom
No. 2, Dickson J. found at page 770 S.C.R.; 4
D.L.R. of the judgment that the installers were
"functionally quite separate from the rest of Tele-
com's operations". Whether or not there is func
tional separation is an inquiry which need not be
made in this case. The fact is that there are
virtually no Bernshine operations other than those
performed for Reimer. At its highest, at the time
of the Board hearing, Bernshine hoped that it
might develop some outside business to comple-
ment its Reimer operations. However, no such
outside business existed at that time. There were,
for all practical purposes, no operations relating to
intraprovincial trucking. Thus, there did not exist
any separation of functions to which regard might
be had as an element in the characterization of
Bernshine's business.
(2) The nature of the corporate relationship between Bern-
shine and the sole company it serves, namely, Reimer.
As Dickson J. observed in Telecom No. 2, at
page 771 S.C.R.; 5 D.L.R. of the judgment "Cor-
porate relationships are not determinative in
assessing constitutional jurisdiction". Estey J. con
cluded that the corporate relationship between Bell
and Telecom was not a factor bearing on the
outcome of that case. At best a relationship or lack
thereof is a factor to be taken into account in the
overall assessment of the nature of the particular
functional relationship. If there is an operational
or functional relationship, the absence of any cor
porate relationship, as here, does not preclude a
finding that a firm providing a vital, essential or
integral service to a core federal undertaking falls
within federal constitutional jurisdiction. There
fore, while Bernshine undoubtedly has no corpo
rate relationship with Reimer, that fact alone is
not determinative in the resolution of the jurisdic
tional question.
(3) The importance of the work done by Bernshine for Reimer
as compared with other customers.
The necessity for this inquiry arises from the
constitutional principle that federal jurisdiction
over labour relations will not be founded on excep
tional or casual factors. Dickson J. found in Tele-
com No. 2 [at page 771 S.C.R.; 5 D.L.R.], that
"The installers' work for Bell Canada is neither an
exceptional nor a casual factor", a finding based
on the facts that Bell bought 90% of its switching
and transmission equipment from Telecom, 95% of
which was installed by Telecom and 80% of the
work of Telecom installers was performed for Bell.
In this case, since, at the time of the hearing,
Reimer was Bernshine's only customer, the impor-
tance of the Reimer work to it is obvious. It
certainly cannot be said that it was exceptional or
casual. In that sense, its situation differs markedly
from that of suppliers of gas and oil at the various
roadside service stations upon which the highway
transport drivers must from time to time rely when
shortages of fuel occur. Counsel for the appellant
attempted to equate Bernshine's operations to
those of such suppliers. This is not to say, of
course, that every company which provides tire
maintenance and truck wash services to a federal
transport business falls under federal jurisdiction.
Whether they do or not must, in part, depend on
determining whether or not the services they pro
vide are casual or exceptional. On the peculiar
facts of this case they were certainly not.
(4) The physical and operational connection between Bern-
shine and the core federal undertaking, Reimer, and, in
particular the extent of the involvement of Bernshine in
the operation and institution of the federal undertaking as
an operating interprovincial trucking operation.
Dickson J. in Telecom No. 2, found [at page
772 S.C.R.; 5 D.L.R.] this factor "be to the most
critical in determining whether the federal Parlia
ment or the provincial legislature has constitution
al jurisdiction." Estey J. agreed with this assess
ment. It is the factor where the test of "vital",
"essential" or "integral" comes into play.
Chouinard J. in the L'Anglais case, supra, at
page 169 S.C.R.; 219 D.L.R. observed that "Sell-
ing sponsored air time and producing programs
and commercial messages does not make the seller
or producer a television broadcaster. Furthermore,
the activities are not indispensable to the Télé-
Métropole Inc. operation." The requisite inquiry
thus is one of fact, viz., is the nature of the work
performed by Bernshine for Reimer essential, vital
or integral to the Reimer operations?
The Board found as a fact that it was. At pages
26 and 27 of the Board's reasons, it was said:—
In the present case, as long as the work was being done "in
house" by Reimer, the parties had assumed the truck wash and
tire repair operations fell within federal jurisdiction as do the
rest of Reimer's operations. Does anything change because of
the fact that the services are now performed by Bernshine, a
separate company with no corporate connection with Reimer?
We think not.
In a labour relations sense Bernshine is a separate company
and a separate employer compared to Reimer, but in a constitu
tional sense Bernshine's business is an integral part of Reimer's
federal undertaking. We therefore conclude that this Board has
constitutional jurisdiction over Bernshine. (Emphasis added.)
There seems ample support for this finding in
the evidence not the least cogent of which is the
fact that the parties themselves described it as
such in their agreement dated August 11, 1983.
There, as earlier pointed out, Bernshine in war
ranting in paragraph 2 that it would have suffi
cient personnel and equipment to carry out its
duties recognized "that the said tires are critical to
the successful operation of Reimer".
Moreover, without trucks Reimer's business
could not be carried on. Without proper tires the
trucks and tractors and trailers could not be oper
ated. This coupled with the facts that the mainte
nance operations are conducted at Reimer's prem
ises, using equipment leased by it and Reimer
being essentially Bernshine's only customer leads,
as I see it, inevitably to the conclusion that the
labour relations jurisdiction for Bernshine
employees must be that of the core undertaking,
Reimer. That being federal, so too must be that
relating to Bernshine.
I am also of the view that the fact that the work
performed by Bernshine employees is relatively
simple does not affect its essentiality. As Dickson
J. pointed out in Telecom No. 2, the complexity of
the work is not determinative. The fact that it is an
integral and essential part of the federal core
operation is.
V
CONCLUSION
In summary, I am of the opinion that the Board
correctly directed itself on the law although it did
not precisely apply the tests propounded by Dick-
son J. in Telecom No. 2. Nonetheless, it effectively
did so. As the trier of facts on matters peculiarly
within its area of expertise and having had the
advantage of seeing and hearing the witnesses,
those findings of fact ought not to be lightly
interfered with. In saying this, I do not overlook
the fact that in the determination of its constitu
tional jurisdiction the Board will be either right or
wrong in that determination. There can be no
shades of grey. However, while recognizing that
fact, it seems to me that the Board's findings of
fact should not be found erroneous unless they
were clearly wrong having regard to its members'
background knowledge and experience in deter
mining matters of this kind.' Since, in this case, its
members correctly directed themselves as to the
law and since their view of the facts is amply
supportable, I am of the opinion that they did not
err in making the impugned order.
Accordingly, I would dismiss the section 28
application.
RYAN J.: I concur.
HUGESSEN J.: I concur.
' See dissenting reasons of Beetz J. in Telecom No. 2
(supra), at p. 775 S.C.R.; 8 D.L.R.
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.