Judgments

Decision Information

Decision Content

A-167-89
Cargill Grain Company, Limited (Applicant) v.
Canada Labour Relations Board, United Automo bile, Aerospace and Agricultural Implement Workers of America (Respondents)
INDEXED AS: CARGILL GRAIN CO. v. CANADA (LABOUR RELA TIONS BOARD) (CA.)
Court of Appeal, Hugessen, MacGuigan and Des- jardins JJ.A.—Ottawa, August 17 and October 17, 1989.
Constitutional law — Distribution of powers — Whether C.L.R.B. having jurisdiction to certify union as representative of Ontario clerical workers at subsidiary of Winnipeg grain Company — Three elevators in Ontario declared works for general advantage of Canada — Most operating under provin cial control — Whether business a federal undertaking — Distinction between works and undertakings re federal declaratory power s. 92(10), Constitution Act — Cargill grain merchandiser, not elevator operator — Elevators incidental to undertaking — Undertaking wholly provincial in essence though part of plant declared for general advantage of Canada — No "core federal undertaking" to underpin federal jurisdi- cation in primarily provincial field of labour relations.
Labour relations — Application to set aside certification by C.L.R.B. of union to represent Ontario clerical workers at subsidiary of Winnipeg grain company — Jurisdiction — Union applying for certification to both federal and provincial labour boards — O.L.R.B. declining jurisdiction — C.L.R.B. lacked jurisdiction as no "core federal undertaking" to under pin federal jurisdiction in primarily provincial field of labour relations.
This was a section 28 application to review, for want of jurisdiction, certification by the C.L.R.B. of the United Automobile, Aerospace and Agricultural Implement Workers of America to represent 28 office and clerical employees at the applicant's Chatham, Ontario office.
The applicant, a subsidiary of a Winnipeg company, acts as a grain merchant and dealer in Eastern Canada and operates grain elevators in Ontario. The employees work at Eastern Headquarters providing essential support services for elevator operations. Application was made to both the O.L.R.B. and the C.L.R.B. for certification. The O.L.R.B., at the urging of the applicant union, refused the application for lack of jurisdiction. The C.L.R.B. assumed jurisdiction principally on the basis that the company's operations included "several" elevators within the meaning of subsection 43(1) (now subsection 55(1)) of the Canada Grain Act and mills and warehouses within the mean-
ing of section 45 (now section 76) of the Canadian Wheat Board Act.
Held (MacGuigan J.A. dissenting), the application should be allowed.
Per Hugessen J.A.: The C.L.R.B. is without jurisdiction to certify the union. There is no core federal undertaking. Only three of the company's 27 elevators fall under subsection 55(1) of the Canada Grain Act. The Board's reference to "several" elevators is misleading. Section 76 of the Canadian Wheat Board Act should not be extended beyond its terms. The warehouses and mills are being operated as adjuncts to the operation of grain elevators not subject to federal declaration, the latter being in fact licensed and regulated by Ontario provincial authority. While recognizing that five of these 25 elevators were under provincial jurisdiction, the C.L.R.B. ignored the fact that the other 20 elevators operate under exclusive provincial regulation and control. The undertaking of Cargill is that of a grain merchandiser buying, selling and trading in grain in Ontario and operating elevators incidentally to that undertaking. Such undertaking is wholly provincial even if some part of the activities relates to interprovincial or international trade and some part of the physical plant has been declared to be for the general advantage of Canada.
Per Desjardins J.A. (concurring in the result): Section 55 of the Canada Grain Act and section 76 of the Canadian Wheat Board Act deal strictly with the "works" therein described. The undertakings related to the works are not within the scope of the declarations. On the facts, the key character of the appli cant's undertaking is local in nature.
Per MacGuigan J.A. (dissenting): There is no reason to restrict the generality of the words in section 76 of the Canadi- an Wheat Board Act. The declaration in section 76 should be taken to apply to "all flour mills, feed mills, feed warehouses and seed cleaning mills" in Canada. An undertaking based upon a federal work and the labour relations of that undertak ing follow upon and for jurisdictional purposes are integral with the federal work itself. There is no factual foundation on the basis of which the Court could reverse the decision of the Board. The applicable test for integration of a subsidiary undertaking into a core federal undertaking has been met.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
Canada Grain Act, R.S.C. 1927, c. 86, s. 173 (as am. by S.C. 1950, c. 24, s. 10).
Canada Grain Act, R.S.C. 1952, c. 25, s. 2.
Canada Grain Act, R.S.C. 1970, c. G-16, s. 43(1) (as am. by S.C. 1970-71-72, c. 7, s. 43).
Canada Grain Act, R.S.C., 1985, c. G-10, ss. 2(a),(b),(c), (d),(e) (not yet proclaimed in force), 3, 13, 55(1), (2),(3) (not yet proclaimed in force), 121(1).
Canada Labour Code, R.S.C. 1970, c. L-1, s. 108 (as am.
by S.C. 1972, c. 18, s. 1).
Canada Labour Code, R.S.C., 1985, c. L-2, ss. 2(h), 4, 22, 24.
Canadian Wheat Board Act, 1935 (The), S.C. 1935, c.
53, s. 39 (as am. by S.C. 1947, c. 15; 1950, c. 31, s. 8). Canadian Wheat Board Act, R.S.C. 1970, c. C-12, s. 45. Canadian Wheat Board Act, R.S.C., 1985, c. C-24, ss. 2,
5, 6, 23, 32, 76.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti tution Act, 1982, Item 1) s. 92(10).
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5] ss. 91(29), 92(10)(c).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28. Grain Futures Act, R.S.C., 1985, c. G-11.
CASES JUDICIALLY CONSIDERED APPLIED:
Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115; (1979), 28 N.R. 107; 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; (1983), 47 N.R. 351.
DISTINGUISHED:
Central Western Railway Corp. v. U.T.U., [1989] 2 F.C. 186; (1988), 47 D.L.R. (4th) 161; (1988), 84 N.R. 321 (C.A.).
CONSIDERED:
Chamney v. The Queen, [1975] 2 S.C.R. 151; (1973), 40 D.L.R. (3d) 146; 13 C.C.C. (2d) 465; [1974] 1 W.W.R. 493.
REFERRED TO:
R. v. Saskatchewan Wheat Pool (1978), 89 D.L.R. (3d) 755; 43 C.C.C. (2d) 119; [1978] 6 W.W.R. 27 (Sask. C.A.); In Reference re Industrial Relations and Disputes Act, [1955] S.C.R. 529; [1955] 3 D.L.R. 721; The Queen v. Thumlert (1960), 20 D.L.R. (2d) 335; (1959), 28 W.W.R. 481 (Alta. C.A.); Camirand c. R., [1976] C.S. 1294; Antoine Guertin Ltée 1, not reported Québec Labour Court, No. 500-28-000502-831; Cie du trust national Ltée c. Burns, [1985] C.S. 1286; Raymond, Chabot, Martin, Paré & associés c. Association des employés de G.D.I. Inc., June 9th, 1989 (No. 200-09- 000461-852) (Qué. C.A.); W.G. Thompson & Sons Lim ited; Re U.F.C.W.; Re Group of Employees, [1987]
OLRB Rep. May, 787; C.S.P. Foods Ltd. v. Canada Labour Relations Board, [1979] 2 F.C. 23; 25 N.R. 91 (C.A.); Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412; 14 D.L.R. (4th) 457; (1984), 55 N.R. 321; 14 Admin. L.R. 72; 84 C.L.L.C. 14,069; Construction Montcalm Inc. v. The Minimum Wage Commission, [1979] 1 S.C.R. 754; (1978), 93 D.L.R. (3d) 641; (1978), 25 N.R. 1; 79 C.L.L.C. 14,190; Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115; (1979), 98 D.L.R. (3d) 1; (1979), 28 N.R. 107; 79 C.C.L.C. 14,211; Attorney-General for Ontario v. Israel Winner, [1954] A.C. 521; [1954] 4 D.L.R. 657 (P.C.); 756 (Sask. C.A.); Canada Labour Code (Re) (1986), [1987] 2 F.C. 30; 34 D.L.R. (4th) 228; (1986), 72 N.R. 348; 87 C.L.L.C. 14,017 (C.A.).
AUTHORS CITED
Fraser, Ian. "Some Comments on Subsection 92(10) of the Constitution Act, 1867" (1984), 29 McGill L.J. 557.
Hanssen, Kenneth. "The Federal Declaratory Power Under the British North America Act" (1968), 3 Man. L.J. 87.
Hogg, P.W. Constitutional Law of Canada, 2nd ed. Toronto: Carswell, 1985.
Lajoie, Andrée. Le pouvoir déclaratoire du Parlement. Montréal: Les Presses de l'Université de Montréal, 1969.
Laskin, Bora. Canadian Constitutional Law, 5th ed. by Neil Finkelstein. Toronto: Carswell, 1986.
Schwartz, Phineas. "Fiat by Declaration S. 92(10)(c) of the British North America Act (1960)", 2 O.H.L.J. 1.
COUNSEL:
Mortimer Freiheit and Pierre Jauvin for applicant Cargill Grain Company, Limited.
Graham Clarke for respondent Canada Labour Relations Board.
Stephen B.D. Wahl for respondent United Automobile Aerospace and Agricultural Implement Workers of America.
SOLICITORS:
Stikeman, Elliott, Montréal, for applicant Cargill Grain Company, Limited.
Legal Services, Canada Labour Relations Board, Ottawa, for the respondent Canada Labour Relations Board.
Koskie & Minsky, Toronto, for respondent United Automobile, Aerospace and Agricul tural Implement Workers of America.
The following are the reasons for judgment rendered in English by
HUGESSEN J.A.: This section 28 [Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10] application seeks to review and set aside a decision of the Canada Labour Relations Board certifying the United Automobile, Aerospace and Agricultural Implement Workers of America (U.A.W.) to represent twenty-eight office and clerical employees in the applicant's office located in Cha- tham, Ontario.
The sole basis for the application is the appli cant's contention that the Board was and is consti tutionally incompetent to deal with the employees in question. That being so, the standard of review for this Court must be the correctness of the impugned decision in constitutional terms, for it is trite that an organ of one level of government in a federal system cannot, by a wrong decision in fact or in law, arrogate to itself powers vested in another level of government; no privative clause and no principle of curial deference can protect constitutional trespass.'
The applicant acts as a grain merchant and grain dealer in Eastern Canada and is a subsidiary of Cargill Limited, based in Winnipeg. The appli cant operates a number of grain elevators in Ontario but none of the employees whose certifica tion is here in issue works directly in or on such elevators; on the contrary, as their title indicates, they are all office and clerical workers who are employed in the Eastern Division Headquarters located in Chatham. That office, besides being the centre from which the company conducts its grain merchandising activities, provides essential support services, principally accounting and reporting, for the elevator operations.
Conscious of the constitutional difficulties it might face, the Union applied for certification simultaneously to the Ontario Labour Relations
' See Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115; (1979), 28 N.R. 107; Canadian Unions of Public Employees v. Paul L'Anglais Inc. et al., [1983] 1 S.C.R. 147; 146 D.L.R. (3d) 202; (1983), 47 N.R. 351.
Board and to the Canada Board. In a turn of events which is, to say the least, curious, the application before the Ontario Board proceeded first, but, before that Board, the Union, the appli cant for certification, contended that the subject employees fell exclusively under federal jurisdic tion while the company, the respondent before the Ontario Board, urged the latter to assume jurisdic tion. The Ontario Board held a hearing at the conclusion of which it declined jurisdiction.
The relevant passages of the decision of the Ontario Board read as follows:
5. In April or May 1988, the respondent was formed as a result of the acquisition of the assets of Maple Leaf Mills Grain Company in Chatham, Ontario by the respondent's parent Company, Cargill Limited. Cargill Grain Company, Limited's operations are divided into 19 branches which are responsible for a total of 25 grain elevators. The business of the branches consists of the buying of grain and the servicing of customers. Each branch handles its local business and local customer transactions.
6. All 19 branches report to the eastern region headquarters in Chatham. The eastern region geographically consists of the bulk of Ontario and also has responsibility for two grain elevators situated in the Province of Quebec. As well, it is responsible for administering a grain elevator in St. John, New Brunswick pursuant to a management agreement with Ports Canada. Eighty per cent of the operations of the eastern region consists of the buying of grain and grain products from producers in Ontario and the storage, ware housing and marketing of that grain. The other twenty per cent of its activity consists of other farm service related activities.
7. The respondent's parent owns and operates three termi nals for which the eastern region is responsible; one at Sarnia, the second at Midland and the third at Port McNi- coll. Terminals are used mostly for the export of grain via ships. The operations of the terminal are federally regulated. The respondent operates two feed mills, and a local seed cleaning facility in Chatham. The various grain products serviced by the respondent include corn, soya bean and wheat. Its wheat activities are governed both by the Ontario Wheat Board and the Canadian Wheat Board.
8. The primary responsibility of the eastern regional office is to maintain a record of the transactions conducted in each of the branches and through the terminals. The regional office is also responsible for the selling of the products held in its various grain elevators.
(Case book, at pages 51-52.)
12. The evidence in the instant case is that the respondent's operations include elevators within the meaning of section
43(1) 2 of the Canada Grain Act and mills and warehouses within the meaning of section 45 3 of the CWBA. These operations have been declared by Parliament to be works for the general advantage of Canada. Accordingly, we have concluded that we do not have jurisdiction to determine this application and it is hereby dismissed. 4
(Case book, at page 55.)
The application before the Canada Board, which had been suspended pending the outcome of the Ontario proceedings, was thereupon revived. It is not without significance that the application to the Canada Board describes the business of the employer as being that of a "Grain merchandiser" (Case book, at page 11).
The Canada Board conducted an investigation and held a hearing. In the investigation report prepared by the Board's staff, the following gener al description of the employer's activities appears:
Essentially, the company is divided into three main components:
i) country elevators and farm supply centres;
ii) transfer elevator operations; and
iii) grain merchandizing.
The subject application directly affects the grain merchandising employees.
(Case book, at page 77.)
In its decision the Board described the questions before it as follows:
1) is there a federal undertaking in existence? and 2) are the office operations in Chatham intimately related to this federal undertaking?
(Case book, at page 161.)
It is common ground that the Board asked itself the right questions.' The dispute is over the
2 Now subsection 55(1) of the Canada Grain Act, R.S.C., 1985, c. G-10.
3 Now section 76 of the Canadian Wheat Board Act, R.S.C., 1985, c. C-24.
° We are not called upon, and have no jurisdiction, to review the Ontario Board's finding, but we should not be taken as approving, even indirectly, a holding that operations which "include" some federal works are therefore excluded from provincial labour relations jurisdiction.
5 See Northern Telecom, footnote 1, supra.
answers, particularly the answer to the first ques tion. The core of the Board's reasoning is as follows (for ease of reference, I have added para graph numbers):
[1] The evidence presented to the Board has convinced it that a federal undertaking exists in the present case. While it is true that not all of the "country" elevators in Cargill's operation have been declared to be works for the general advantage of Canada, there are nonetheless several of Car- gill's elevators that the Canada Grain Act, R.S.C. 1985 c. G-10, has explicitly declared to be works for the general advantage of Canada. For example, in Midland, Ontario one finds the Midland Simcoe Elevator Co. Limited; in Port McNicoll, one finds the Marathon Realty Company Limited; and in Sarnia, one finds Maple Leaf Mills Ltd. All of these elevators are owned by Cargill. These premises are listed in Schedule II of the Grain Act as being works for the general advantage of Canada.
[2] In addition, Cargill has feed warehouses at several loca tions in Ontario. During the hearing, Mr. S. Guthierrez, Cargill's eastern regional manager, stated that there were fifteen such feed warehouses in Ontario. Similarly, Cargill is also involved with seed cleaning mills such as those in Princeton and in Wallaceburg. Mr. Guthierrez further stated that Cargill operates a few small feed mills such as those in Ayr, Ridgetown and Nelles Corners, Ontario. Cargill also operates seed bagging plants notably in Tilibury, Ontario.
[3] Based upon these facts, we are prepared to find that Cargill is involved in a federal undertaking not only because some of Cargill's elevators have been declared to be works for the general advantage of Canada, but also because section 76 of the Canadian Wheat Board Act, R.S.C. 1985, c. C-24, establishes that the other aspects of Cargill's opera tions in Ontario have been declared by the Federal Govern ment to be works for the general advantage of Canada. While this Board realizes that not all of Cargill's grain elevators are within its jurisdiction, the overall characteriza tion of the employer's business must be as a federal undertaking.
[4] It is also the Board's opinion that the clerical operations at Chatham are intimately related to the basic federal under taking. The Chatham office of Cargill administers the feed mills referred to above. All of the country elevators owned by Cargill are administered through the Chatham office though, as mentioned before, some of these elevators are within provincial jurisdiction. These exceptions would not, however, change our basic characterization of Chatham's importance to the operations of Cargill in Eastern Canada. Other func tions carried out by the Chatham office include accounting, grain marketing, compilation of statistics from the Eastern Canada operations, plus coordination of activities at various places in Eastern Canada such as at the seed cleaning mill in Wallaceburg.
[5] It is also important to note that the Chatham office is heavily involved in merchandising i.e. the buying, selling and transportation of grain. A portion of this merchandising relates to the futures markets on the Winnipeg and Chicago grain exchanges. The Winnipeg Grain Exchange is governed by the Grain Futures Act, R.S.C. 1985 c. G-11. For these futures markets, traders in eastern Canada place orders
through the Chatham office for the Winnipeg or Chicago grain exchange.
[6] Taking into account all of the above considerations, the Board finds that the Chatham office is intimately related with the federal undertaking. Accordingly, this Board has jurisdiction over the present certification application.
(Case book, at pages 161 and 162.)
The reference in paragraph [1] to "several" elevators which have been explicitly declared to be works for the general advantage of Canada is somewhat misleading. The Board specifically men tions three such elevators (Midland, Port McNi- coll and Sarnia) and these, sometimes referred to as transfer or terminal elevators, are the only ones which have been so declared in the Canada Grain Act. The point is of some importance. Section 55 of the Canada Grain Act reads as follows:
55. (1) All elevators in Canada heretofore or hereafter con structed, except elevators referred to in subsection (2) or (3), are and each of them is hereby declared to be a work or works for the general advantage of Canada.
(2) All elevators in the Eastern Division heretofore or here after constructed, as defined in paragraph (d) of the definition "elevator" in section 2, are and each of them is hereby declared to be a work or works for the general advantage of Canada.
(3) All elevators in the Eastern Division heretofore or here after constructed, as defined in paragraph (e) of the definition "elevator" in section 2, are and each of them is hereby declared to be a work or works for the general advantage of Canada.
This text must be read in conjunction with the definition of "elevator" in section 2, which reads as follows:
2. In this Act, "elevator" means
(a) any premises in the Western Division
(i) into which grain may be received or out of which grain may be discharged directly from or to railway cars or ships,
(ii) constructed for the purpose of handling and storing grain received directly from producers, otherwise than as a part of the farming operation of a particular producer, and into which grain may be received, at which grain may be weighed, elevated and stored and out of which grain may be discharged, or
(iii) constructed for the purpose of handling and storing grain as part of the operation of a flour mill, feed mill, seed cleaning plant, malt house, distillery, grain oil extrac tion plant or other grain processing plant, and into which grain may be received, at which grain may be weighed,
elevated and stored and out of which grain may be dis charged for processing or otherwise,
(b) any premises in the Eastern Division, situated along Lake Superior, Lake Huron, Lake St. Clair, Lake Erie, Lake Ontario or the canals or other navigable waters connecting those Lakes or the St. Lawrence River or any tidal waters, and into which grain may be received directly from railway cars or ships and out of which grain may be discharged directly to ships,
(c) the portion of any premises in the Eastern Division named in Schedule Il that is used for the purpose of storing grain,
(d) any premises in the Eastern Division constructed for the purpose of handling and storing grain received directly from producers, otherwise than as a part of the farming operation of a particular producer, and into which grain may be received, at which grain may be weighed, elevated and stored and out of which grain may be discharged, and
(e) any premises in the Eastern Division constructed for the purpose of handling and storing grain as a part of the operation of a flour mill, feed mill, seed cleaning plant, malt house, distillery, grain oil extraction plant or other grain processing plant, and into which grain may be received, at which grain may be weighed, elevated and stored and out of which grain may be discharged for processing or otherwise,
including any such premises owned or operated by Her Majesty in right of Canada or a province or any agent thereof.
The three terminal elevators referred to by the Board are specifically mentioned in Schedule II to the Act and are therefore caught by the declara tion in subsection 55(1) together with paragraph (c) of the definition of "elevator". Subsections 55(2) and (3) and paragraphs (d) and (e) of the definition of "elevator", which would undoubtedly catch all of the other elevators operated by Cargill in Eastern Canada, have not been proclaimed in force.
This brings me to the Board's finding, in para graphs [2] and [3], that Cargill operates fifteen feed warehouses, two seed cleaning mills and three feed mills in Ontario and that these are caught by the declaration in section 76 of the Canadian Wheat Board Act:
76. For greater certainty, but not so as to restrict the generality of any declaration in the Canada Grain Act that any elevator is a work for the general advantage of Canada, it is hereby declared that all flour mills, feed mills, feed warehouses and seed cleaning mills, whether heretofore constructed or hereafter to be constructed, are and each of them is hereby declared to be works or a work for the general advantage of Canada and, without limiting the generality of the foregoing,
every mill or warehouse mentioned or described in the schedule is a work for the general advantage of Canada.
While I cannot agree with counsel's submission that this declaration should not be given its full force and effect so as to catch feed warehouses, seed cleaning mills and feed mills in Eastern Canada, I am also of the view that it should not be extended beyond its terms. The section itself makes a clear distinction between an "elevator" and the various mills and warehouses of which it speaks; that distinction echoes the one found in the definition of "elevator" in section 2 of the Canada Grain Act, quoted above. The legislative texts reflect the reality: the evidence 6 before the Board is clear that in each case the feed warehouses, seed cleaning mills and feed mills belonging to Cargill in Ontario are operated as an adjunct to the operation of a country grain elevator which itself is not subject to any federal declaration and is, in fact, licensed and regulated by the Ontario provin cial authorities. To state, as the Board does, that the section 76 declaration relating to these ancil lary operations
... establishes that the other aspects of Cargill's operations in Ontario have been declared by the Federal Government to be works for the general advantage of Canada ... [Emphasis added.]
seems to me to be a patent case of the tail wagging the dog. 7
6 Case book, at pp. 56, 120, 135 and 136. See also paragraph 6 of the Ontario Board's findings, quoted above, that the "farm service" activities of the Company, i.e. the "federal" ware houses and mills here in question, represent only twenty per cent of the whole.
7 For a somewhat similar situation, see R. v. Saskatchewan Wheat Pool (1978), 89 D.L.R. (3d) 755; 43 C.C.C. (2d) 119; [1978] 6 W.W.R. 27 (Sask. C.A.), where a farm service centre operated as an adjunct to a grain elevator was held to be subject to the provincial Occupational Health Act even though the elevator itself had been declared to be a work for the general advantage of Canada. If an ancillary to a federal work is not itself federal, a fortiori a declaration of the federal character of an ancillary to a provincial work does not capture the latter.
The Board's recognition that some of Cargill's elevators are within provincial jurisdiction is pre sumably intended to be limited to those country elevators (apparently five out of a total of twenty- five) which do not have feed warehouses, seed cleaning mills or feed mills annexed to them. It, of course, ignores the unquestioned fact that the other twenty, at least so far as their elevator operations are concerned, also operate under exclusive provincial regulation and control.
These comments would in themselves be enough to cast very serious doubt on the Board's finding that Cargill's business is a federal undertaking. There is more, however. I have on a previous occasion 8 dealt with the distinction which must be made between works and undertakings in terms of the federal declaratory power in subsection 92(10) of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1)] and I need not repeat myself here. In that case, the Court divided over the question of whether an undertak ing, otherwise provincial in nature, whose sole raison d'être was the operation of a federal work, became by that fact a federal undertaking. The facts of the present case are a long way from those in Central Western and argue even more strongly for exclusive provincial jurisdiction over labour relations.
The undertaking of Cargill Grain Company, Limited is far from being exclusively that of the operation of a federal work. It is and is described in the materials before the Board as a grain mer- chandiser. As was stated by the Ontario Board in paragraph 6 of its decision, quoted above:
Eighty per cent of the operations of the eastern region consists of the buying of grain and grain products from producers in Ontario and the storage, warehousing and marketing of that grain. The other twenty per cent of its activity consists of other farm service related activities.
The Canada Board also recognized this fact and, in paragraph [5] of its decision, speaks of the Chatham office being
B See Central Western Railway Corp. v. U.T.U., [1989] 2 F.C. 186; (1988), 47 D.L.R. (4th) 161; (1988), 84 N.R. 321 (C.A.).
... heavily involved in merchandising i.e. the buying, selling and transportation of grain.'
This, as it seems to me, is conclusive against federal jurisdiction over labour relations in that office. The undertaking of Cargill is not that of an operator of grain elevators, all or even most of which have been declared to be federal works, who incidentally engages in the activity of buying, sell ing and transportation of grain. On the contrary, the undertaking of Cargill, as it is uniformly and consistently described throughout the material, is that of a grain merchandiser buying, selling and trading in grain in Ontario, who, as an incidental to that undertaking, operates elevators for the receipt, storage and delivery of the products dealt in. In my view such an undertaking is wholly provincial in its essence even if some part of the activities relates to interprovincial or international trade and some part of the physical plant includes works which have been declared for the general advantage of Canada.
It follows from the foregoing that, in my opin ion, the Board's answer to the first question cannot be supported since there is no "core federal under taking" such as is required to underpin any federal jurisdiction in the primarily provincial field of labour relations. That being so, the Board's finding on the degree of operational integration of the various aspects of Cargill's business, the second question, is simply irrelevant.
I conclude that the Board was without jurisdic tion to make the decision here under review. My regret at reaching such a conclusion, whose effect must be to leave the employees in question unrepresented by the union of their choice, is somewhat tempered by the fact, previously alluded to, that the Union itself, in its concurrent applica-
9 The Board's further reference to Cargill's dealings in the futures market on the Winnipeg and Chicago grain exchanges and the reference to the Grain Futures Act, R.S.C., 1985, c. G-11, puzzles me. It surely cannot be implying that participa tion in international trade or in dealings on a federally regulat ed exchange makes the participant a federal undertaking. If so, it is a startling claim to extension of federal labour relations jurisdiction.
tion to the Ontario Board, invited the latter to decline jurisdiction.
I would allow the section 28 application and set aside the impugned decision as having been made without jurisdiction.
* * *
The following are the reasons for judgment rendered in English by
MACGuIGAN J.A. (dissenting): This section 28 application is brought by the applicant ("Cargill Grain") against an order of the respondent Canada Labour Relations Board (the "CLRB" or the "Board"), dated March 10, 1989, made pursu ant to section 24 of the Canada Labour Code [R.S.C., 1985, c. L-2] (the "Code") which certi fied the respondent United Automobile, Aerospace and Agricultural Implement Workers of America (the "Union") as the bargaining agent for a unit comprising all office and clerical employees of Cargill Grain Company Limited working in Cha- tham, Ontario, excluding merchants' assistants, the executive assistant to the branch manager, casual employees, grain merchants, managers and those above the rank of grain merchants and managers.
Cargill Grain, self-described as a grain mer- chandiser, is a wholly-owned subsidiary of a Win- nipeg-based parent company, Cargill Limited, which in the spring of 1988 purchased the grain division of Maple Leaf Mills Ltd. and changed its name to Cargill Grain Company Limited. Cargill Grain's administrative offices are in Chatham, Ontario.
The elevator and mill network of Cargill Grain in Ontario comprises three transfer or terminal elevators and 25 more locally-oriented establish ments, including feed warehouses, feed mills, seed cleaning mills and a seed bagging plant. Cargill Grain also has the clerical offices in Chatham which are the subject matter of the present case. The 25 so-called "country elevators" are grouped into 15 profit centres. Their main function is to purchase local grains and oilseeds from the area producers and provide crop inputs, including
custom application of inputs to the area producers. These locations report to the Chatham office, and the majority of the related accounting functions are performed in the Chatham office, i.e. accounts receivable, accounts payable, general ledger, finan cial statement preparation, inventory records rela tive to grain, etc. (Case, at page 56.)
The relationship of the Chatham office to the country elevators is described in the following two passages from the cross-examination of Stefan Gutierrez, the Eastern Regional Manager of Car- gill Grain:
Q. And from those Country Elevators, if I can characterize them that way, that are administered through the Chatham office, where do they ship the grain?
A. That grain is ... I would say, primarily, all shipped within the province of Ontario.
Q. Where? To where?
A. To feed mills, to, to transfer elevators or terminal elevators
Q. Okay, so let ... You've, you've....
A. ... for further marketing disposition. [Case, at page 101.]
Q. You say that they, there are 15 or so warehouses where feed and seed are warehoused?
A. The, the local grain elevator, as a ... maybe as a, as an example, I can help explain this as a ... he may have a, a flat warehouse adjacent to the grain elevator. In that warehouse he may store chemi cals and seed that is utilized by the local pro ducer. So he will, he will use that warehouse to, to hold on to his inventory until such time as it's needed. And we only have them at, we don't have them at all of the locations because some of it is
Q. Fifteen out of 25, basically, you're saying.
A. Um hum.
Q. Okay. And in terms of the work function performed at Chatham in respect of the warehousing and so on, sales of feed, seed and chemicals, that's all done through Chatham?
A. Yes, in the way it was laid out here, in terms of accounts receivables. [Case, at page 120.]
The Union applied concurrently for certification both before the CLRB and the Ontario Labour Relations Board ("OLRB"). In a decision on
December 22, the 1988 OLRB declined jurisdic tion, concluding (Case, at page 55):
... The evidence in the instant case is that the respondent's operations include elevators within the meaning of section 43(1) [now subsection 55(1)] of the Canada Grain Act and mills and warehouses within the meaning of section 45 [now section 76] of the CWBA. These operations have been declared by Parliament to be works for the general advantage of Canada. Accordingly, we have concluded that we do not have jurisdiction to determine this application and it is hereby dismissed.
The CLRB then held a hearing on the narrow issue of its constitutional jurisdiction to certify the Union. The Board's conclusion is contained in a letter decision of March 28, 1989, the relevant part of which is as follows:
On November 4, 1988 the applicant filed an application for certification before this Board. The application proposed a bargaining unit of approximately twenty-eight office and cleri cal employees working in Cargill's offices in Chatham, Ontario. The Board is confronted in this case with the following two questions: 1) is there a federal undertaking in existence? and 2) are the office operations in Chatham intimately related to this federal undertaking? The Board is of the opinion that it has jurisdiction to grant the certification application because both of the above questions may be answered in the affirmative.
The evidence presented to the Board has convinced it that a federal undertaking exists in the present case. While it is true that not all of the "country" elevators in Cargill's operation have been declared to be works for the general advantage of Canada, there are nonetheless several of Cargill's elevators that the Canada Grain Act, R.S.C. 1985 c. G-10, has explicitly declared to be works for the general advantage of Canada. For example, in Midland, Ontario one finds the Midland Simcoe Elevator Co. Limited; in Port McNicoll, one finds the Mara thon Realty Company Limited; and in Sarnia, one finds Maple Leaf Mills Ltd. All of these elevators are owned by Cargill. These premises are listed in Schedule II of the Grain Act as being works for the general advantage of Canada.
In addition, Cargill has feed warehouses at several locations in Ontario. During the hearing, Mr. S. Guthierrez, Cargill's eastern regional manager, stated that there were fifteen such feed warehouses in Ontario. Similarly, Cargill is also involved with seed cleaning mills such as those in Princeton and in Wallaceburg. Mr. Guthierrez further stated that Cargill oper ates a few small feed mills such as those in Ayr, Ridgetown and Nelles Corners, Ontario. Cargill also operates seed bagging plants notably in Tillbury, Ontario.
Based upon these facts, we are prepared to find that Cargill is involved in a federal undertaking not only because some of Cargill's elevators have been declared to be works for the general advantage of Canada, but also because section 76 of the Canadian Wheat Board Act, R.S.C. 1985 c. C-24, estab-
lishes that the other aspects of Cargill's operations in Ontario have been declared by the Federal Government to be works for the general advantage of Canada. While this Board realizes that not all of Cargill's grain elevators are within its jurisdic tion, the overall characterization of the employer's business must be as a federal undertaking.
It is also the Board's opinion that the clerical operations at Chatham are intimately related to the basic federal undertak ing. The Chatham office of Cargill administers the feed mills referred to above. All of the country elevators owned by Cargill are administered through the Chatham office though, as men tioned before, some of these elevators are within provincial jurisdiction. These exceptions would not, however, change our basic characterization of Chatham's importance to the opera tions of Cargill in Eastern Canada. Other functions carried out by the Chatham office include accounting, grain marketing, compilation of statistics from the Eastern Canada operations, plus coordination of activities at various places in Eastern Canada such as at the seed cleaning mill in Wallaceburg.
It is also important to note that the Chatham office is heavily involved in merchandising i.e. the buying, selling and transpor tation of grain. A portion of this merchandising relates to the futures markets on the Winnipeg and Chicago grain exchanges. The Winnipeg Grain Exchange is governed by the Grain Futures Act, R.S.C. 1985 c. G-11. For these futures markets, traders in eastern Canada place orders through the Chatham office for the Winnipeg or Chicago grain exchange.
Taking into account all of the above considerations, the Board finds that the Chatham office is intimately related with the federal undertaking. Accordingly, this Board has jurisdic tion over the present certification application.
The legal issues in this case focus principally on the declaratory power of Parliament under para graph 92(10)(c) of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti tution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]] to declare a work for the general advantage of Canada. This provision reads as follows:
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:—
c. Such Works as, although wholly situate within the Prov ince, 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.
There are two main pieces of general legislation affecting the grain industry in Canada, each employing the federal declaratory power. The Canada Grain Act, R.S.C., 1985, c. G-10, estab lishes the Canadian Grain Commission (section 3) with a mandate to "establish and maintain stand ards of quality for Canadian grain and regulate grain handling in Canada, to ensure a dependable commodity for domestic and export markets" (sec- tion 13). The Canadian Wheat Board Act, R.S.C., 1985, c. C-24, sets up the Canadian Wheat Board "with the object of marketing in an orderly manner, in interprovincial and export trade, grain grown in Canada" (section 5), with power inter alia to buy, sell and transport grain and to operate elevators (section 6).
The Canada Grain Act divides Canada into an Eastern Division and a Western Division, the boundary being the meridian passing through the eastern boundary of Thunder Bay, and section 2 of the Act defines elevator to mean, inter alia, "the portion of any premises in the Eastern Division named in Schedule II that is used for the purpose of storing grain". Schedule II lists, inter alia, the premises of Midland Simcoe Elevator Co. Ltd., in Midland, Ontario, those of Marathon Realty Company Limited in Port McNicoll, Ontario, and those of Maple Leaf Mills Ltd. in Sarnia, Ontario. These are the three transfer elevators now owned by Cargill Grain, and it is therefore common ground to the parties that these three elevators fall under federal jurisdiction under paragraph 92(10) (c).
This is the only relevant declaration in the Canada Grain Act, since the relevant provisions of section 55 are not yet in force. That section pro vides as follows:
55. (1) All elevators in Canada heretofore or hereafter con structed, except elevators referred to in subsection (2) or (3), are and each of them is hereby declared to be a work or works for the general advantage of Canada.
(2) All elevators in the Eastern Division heretofore or here after constructed, as defined in paragraph (d) of the definition "elevator" in section 2, are and each of them is hereby declared to be work or works for the general advantage of Canada.
(3) All elevators in the Eastern Division heretofore or here after constructed, as defined in paragraph (e) of the definition
"elevator" in section 2, are and each of them is hereby declared to be a work or works for the general advantage of Canada.
The general provisions of this section are, of course, broad enough to cover Cargill grain's oper ations, which are entirely in the Eastern Division, but subsection 121(1) provides that subsections (2) and (3) of section 55 shall come into force only when proclaimed, and no proclamation under sec tion 121 has yet been issued.
It is therefore necessary to turn to the Canadian Wheat Board Act, which contains a declaration for the general advantage of Canada in section 76, as follows:
76. For greater certainty, but not so as to restrict the generality of any declaration in the Canada Grain Act that any elevator is a work for the general advantage of Canada, it is hereby declared that all flour mills, feed mills, feed warehouses and seed cleaning mills, whether heretofore constructed or hereafter to be constructed, are and each of them is hereby declared to be works or a work for the general advantage of Canada and, without limiting the generality of the foregoing, every mill or warehouse mentioned or described in the schedule is a work for the general advantage of Canada.
It was this declaration which was used by the Board to support a conclusion that most of Cargill grain's elevators in Ontario have been declared to be works of the general advantage of Canada. Certainly on their face "all flour mills, feed mills, feed warehouses and seed cleaning mills" in Ontario would be included.
The applicant argued that a restrictive reading so as not to apply section 76 to "country" elevators is required for two reasons. First, the Canada Grain Act and the Canadian Wheat Board Act are in pari materia, and the former has not exercised its jurisdiction over Eastern Division country elevators. Second, the Canadian Wheat Board Act itself requires a territorial restriction by its defini tion of "designated area" in section 2:
2. (1) In this Act,
"designated area" means that area comprised by the Provinces of Manitoba, Saskatchewan and Alberta, and those parts of the Province of British Columbia known as the Peace River District and the Crestan-Wynndell Areas, and such other areas as the Board may designate under Subsection (3).
Subsections (2) and (3) of section 2 are also invoked:
2....
(2) Unless it is otherwise provided in this Act, words and expressions used in this Act have the same meaning as in the Canada Grain Act, .. .
(3) The Board may, by order, designate parts of the Prov ince of British Columbia, other than the Peace River District and the Creston-Wynndel Areas, and parts of the Province of Ontario lying in the Western Division that are included in the designated area for the purposes of this Act.
In reference to the first argument, it will be noted that the territorial divisions in the two Acts are not identical. Even with the additional powers of designation given to the Canadian Wheat Board under subsection 2(3) of its Act, the "designated area" under that Act is not potentially equivalent to the Western District under the Canada Grains Act, since certain parts of British Columbia are made exempt from designation.
Section 76 has been considered in several cases. In Camirand c. R., [1976] C.S. 1294, Mignault J. of the Quebec Superior Court interpreted the opening words ("For greater certainty, but not so as to restrict the generality") to mean only that the enumeration in the Schedule of mills and feed warehouses in the designated area does not exclude other mills and warehouses in that same area, and he held that the declaration therefore has refer ence only to mills and warehouses in the four Western provinces.
This case was followed by Brière J. in Antoine Guertin Ltée 1, unreported, Québec Labour Court, No. 500-28-000502-831. However in Cie du trust national Ltée c. Burns, [1985] C.S. 1286, 10 Mail- hot J. (as she then was) refused to follow Cami- rand. In coming to the opposite conclusion, she appeared to be particularly struck by the fact that both Acts were amended on the same day, June 30, 1950, so as to have declaratory provisions of
10 An appeal has been pending before the Québec Court of Appeal since 1985, but has not yet been proceeded with. However, in a companion case, that Court indirectly affirmed the judgment of Bisson, Chouinard and Mailhot JJ. on other grounds: see Raymond, Chabot, Martin, Paré & associés c. Association des employés de G.D.I. Inc., decided June 9, 1989 (No. 200-09-000461-852).
greater breadth than before; that in the The Canadian Wheat Board Act 1935, [S.C. 1935, c. 53, s. 39 (as am. by S.C. 1947, c. 15; 1950, c. 31, s. 8)] is identical to the present section 76, and that in the Canada Grain Act [R.S.C. 1927, c. 86, s. 173 (as am. by S.C. 1950, c. 24, s. 10)] reads as follows:
173. All elevators in Canada heretofore or hereafter con structed are hereby declared to be works for the general advantage of Canada.
Elevators were defined as "any premises into which western grain may be received, or out of which it may be discharged directly from or into railway car or vessels" (R.S.C. 1952, c. 25, s. 2). Then in 1971 the entire Canada Grain Act was replaced, and a declaratory power was enacted (S.C. 1970-71-72, c. 7, s. 43) in the words present ly in section 55, with a regional limitation on the general declaration in subsection 1, whereas the declaration in the Canadian Wheat Board Act was left unchanged. In sum, between 1950 and 19-71 the Canada Grain Act covered all of Canada, as did the Canadian Wheat Board Act. The Canada Grain Act was then changed to apply to all eleva tors in the Western Division, some in the Great Lakes Region and to eastern elevators named in Schedule II. No such change was made to the Canadian Wheat Board Act, and it therefore pre sumably was intended by Parliament to continue the broad declaration previously intended.
Mailhot J. also noted that the notion of "desig- nated area" in the Canadian Wheat Board Act was obviously intended to apply to the parts of the Act where it is referred to: section 23 for Part II, "Control of Elevators and Railways", section 32 for Part III, "Interprovincial and Export Market ing of Wheat by the Board". Section 76, on the
other hand, is found in Part VII, "General", where no purpose is served by a regional limitation."
Section 76 was also considered by this Court in C.S.P. Foods Ltd v. Canada Labour Relations Board, [1979] 2 F.C. 23; 25 N.R. 91 (C.A.), where Heald J. wrote for the Court (at page 29 F.C.):
A perusal of the declaratory section in the Canadian Wheat Board Act ... discloses that it extends the declaration as contained in the Canada Grain Act so that "all flour mills, feed mills, feed warehouses and seed cleaning mills ..." [underlin- ing is mine] are declared to be "works or a work for the general advantage of Canada ..." .
If taken literally, these words are broad enough to resolve the issue in the case at bar, but the matter is perhaps not free from doubt in that all the works or undertakings of that case were in fact located in Western Canada within the "designated area".
Nevertheless, I find it impossible to come to any other conclusion than that no reason has been adduced to restrict the generality of the words in section 76. Indeed, the reasons to the contrary as seen by Mailhot J. lead me also to her conclusion, that the declaration in section 76 of the Canadian Wheat Board Act should be taken to apply to "all flour mills, feed mills, feed warehouses and seed cleaning mills" in Canada.
That decided, what remains are the factual find ings of the Board, which are not as such review- able by this Court by virtue of section 22 of the Code, which limits judicial review to matters fall ing under paragraph 28(1)(a) of the Federal Court Act. The Board specified that of the 25 so called "country elevators" in question at least 21 either were or were integrated with federal works under section 76 of the Canadian Wheat Board Act: 15 feed warehouses, 2 seed cleaning mills, 3
" This point was also strongly made in W.G. Thompson & Sons Limited; Re U.F.C.W.; Re Group of Employees, [1987] OLRB Rep. May, 787, at p. 790, the principal decision of the OLRB in this area.
feed mills 12 and a seed bagging plant. In addition, the 3 transfer elevators are specifically declared to be federal works under the Canada Grain Act. On this factual basis, the Board concludes that "the overall characterization of the employer's business must be as a federal undertaking" and that "the clerical operations at Chatham are intimately related to the basic federal undertaking," all the more so because some of the functions carried out in the Chatham clerical office relate to general activities of Cargill Grain's Eastern Canada opera tions as a federal undertaking.
The possible bases for review by this Court would be an error of jurisdiction or a patently unreasonable error of law: Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412; 14 D.L.R. (4th) 457; (1984), 55 N.R. 321; 14 Admin. L.R. 72; 84 C.L.L.C. 14,069. Since the issue here relates to the jurisdiction, in constitutional terms, of the Board, it may be presumed that the Board's error, if any,, was jurisdictional. In any event, Parliament could not exclude the superintending power of a superior court even by a privative clause: Canadian Unions of Public Employees et al. v. Paul L'Anglais Inc. et al., [ 1983] 1 S.C.R. 147; 146 D.L.R. (3d) 202; (1983) 47 N.R. 351.
Although it was neither raised by the applicant nor dealt with by the Board, an argument as to error of jurisdiction could be based upon the dis senting judgment in this Court in Central Western Railway Corp. v. U.T.U., [1989] 2 F.C. 186; (1988), 47 D.L.R. (4th) 161; (1988), 84 N.R. 321 (C.A.). That case was concerned with the constitu tional jurisdiction over labour relations in Central Western Railway Corporation, which operated a 105-mile-long track called the Stettler Subdivision within the Province of Alberta. All members of the Court were agreed that the track had been
' 2 The Board seems to have been mistaken in including the feed mill at Ayr, since it appears to have been operated directly by the parent company and not by Cargill Grain iself; Case, at p. 102.
declared to be a federal work under paragraph 92(10)(c) of the Constitution Act, 1867. However, Hugessen J.A., relying on the principle that labour relations jurisdiction is primarily provincial and only exceptionally federal, went on to say (at pages 214-217 F.C.):
That does not resolve the question, however. There is, as far as I am aware, no case which holds that labour relations are subject to federal jurisdiction simply because the labour is performed on or in connection with a federal work. That is hardly surprising. Works, being physical things, do not have labour relations. Undertakings do.
The undertaking and business of Central Western are provin cial and local in character. Its trackage and right-of-way are subject to federal jurisdiction by virtue of a declaration under paragraph 92(10)(c). Federal authority extends to the use which may be made of the track but regulation of the labour relations of the user is not an integral element of that authority. Effective control of the work does not require control of the undertaking. Accordingly, the Canada Labour Relations Board has no jurisdiction to make the decision under review.
However, the decision of the majority in that case now provides an authority for the opposite point of view. Marceau J.A. said (at pages 204- 205 F.C.):
It is my opinion, however, that a basic difference must be seen here between, on the one hand, an undertaking which is only called upon to participate in the construction, repair or mainte nance of a federal work, or which happens to use such a work to conduct its operations and, on the other hand, the undertaking whose sole reason for being is to operate on a continuing basis the federal work, to exploit its productive capacity, to make it produce, so to speak, the "national general benefit" expected from it. The national dimension present in the case of the latter, makes it normal, it seems to me, that the federal character of the work would attract federal jurisdiction over all essential aspects of the operation thereof. This, in any event, is the position taken by Parliament in enacting section 108 of the Canada Labour Code which reads:
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. (I under lined the words I considermost significant in support of my proposition.)
Section 108 [Canada .Labour Code, R.S.C. 1970, c. L-1 (as am. by S.C. 1972, c. 18, s. 1)] [now section 4] of the Code [R.S.C., 1985 c. L-2] is, of course, equally in play in the case at bar.
Lacombe J.A. took the same point of view (at pages 227-228 F.C.):
In the present state of the law, there cannot be such a work-undertaking dichotomy, whereby in the case of a railway company conducting its local operations on a federal line, the labour relations of the undertaking would be subject to provin cial jurisdiction, whereas all other aspects of the utilization of the line, qua federal work such as signals and safety would be regulated by federal authority. The regulation of the conditions of employment of Central Western's employees forms an inte gral part of the primary federal competence over the matter coming within the class of subject mentioned in para. 92(10(c) of the Constitution Act, 1867 and is directly related to the day-to-day utilization of a federal work. It must be emphasized that the Parliament of Canada, under s. 91(29), has exclusive legislative authority over all matters coming within such classes of subjects as are expressly excepted in s. 92(10) of the Constitution Act, 1867.
Unless and until the declaration by Parliament ceases to have effect with respect to the Stettler Subdivision, both the work and the undertaking of Central Western are subject to federal jurisdiction. It would be odd that, for example, the Canadian Transport Commission would have jurisdiction over Central Western's trackage, on which it operates its railway undertak ing, whereas the Canada Labour Relations Board would be without jurisdiction over its employees by whom it carries its business on and about the same declared federal work. By way of exception to the general rule that labour relations are within provincial competence, federal competence over Central West ern's labour relations is an essential element of Parliament's exclusive authority to make laws with respect to a work it has declared to be for the general advantage of Canada.
It seems to me that the fundamental difference between the majority and minority points of view reduces itself to different views as to the extent of the provincial "paramountcy" in labour relations. That "paramountcy" itself is not in dispute, but I take it that the majority judges in Central Western see the effect of the federal declaratory power as conferring priority in favour of federal jurisdiction within a reasonable ambit of interpretation of the declaratory power. I see nothing to contradict this in recent decisions such as Construction Montcalm Inc. v. The Minimum Wage Commission, [1979] 1 S.C.R. 754; (1978), 93 D.L.R. (3d) 641; (1978), 25 N.R. 1; 79 C.C.L.C. 14,190; and Northern Telecom Ltd. v. Communications Work-
ers of Canada, [1980] 1 S.C.R. 115; (1979), 98 D.L.R. (3d) 1; (1979), 28 N.R. 107; 79 C.C.L.C. 14,211; (Northern Telecom No. 1). Moreover, as Lacombe J.A. pointed out, exclusive federal legis lative authority seems to be a clear consequence of subsection 91(29) of the Constitution Act, 1867. Indeed, Lord Porter made this explicit in Attor- ney-General for Ontario v. Israel Winner, [1954] A.C. 521, at page 568; [1954] 4 D.L.R. 657 (P.C.), at page 666; 756 (Sask. C.A.) where he stated that Parliament's jurisdiction over subsec tion 92(10) is the same as it "would have enjoyed if the exceptions were in terms inserted as one of the classes of subjects assigned to it under s. 91". In the words of Dickson J. (as he then was) in Northern Telecom No. 1 at page 132 S.C.R.:
... Primary federal competence over a given subject can pre vent the application of provincial law relating to labour rela tions and the conditions of employment but only if it is demon strated that federal authority over these matters is an integral element of such federal competence.
Section 4 of the Code builds upon this basis.
As I read the Central Western case, therefore, it stands for the proposition that an undertaking based upon a federal work and the labour relations of that undertaking follow upon and for jurisdic tional purposes are integral with the federal work itself.
That is also the viewpoint of leading commenta tors on constitutional law. Professor Bora Laskin (as he then was) wrote in Canadian Constitutional Law, 3rd ed. 1966, at page 506; 5th ed., by Neil Finkelstein, Toronto: Carswell, 1986, at pages 628-629:
If anything can be gathered from what has been done under s. 92(10(c), as well as from what has been said about it, the result of a declaration of a "work" to be for the general advantage of Canada must surely be to bring within federal authority not only the physical shell or facility but also the integrated activity carried on therein; in other words, the declaration operates on the work in its functional character: see The Queen v. Thumlert [(1959), 28 W.W.R. 481 (Alta. C.A.)]. [Emphasis added.]
Professor Peter W. Hogg, Constitutional Law of Canada, 2nd ed. Toronto: Carswell, 1985, at page
492, cites and adopts this statement from Laskin and adds:
That this is correct is demonstrated by cases in which the declaration has been followed by an assertion of regulatory jurisdiction over the activity related to the work. Perhaps the clearest examples are the declarations that grain elevators and various kinds of mills and warehouses are works for the general advantage of Canada. The purpose of these declarations was to assume the regulatory jurisdiction over the grain trade which had been denied to the federal Parliament by The King v. Eastern Terminal Elevator Co. (1925), ([1925] S.C.R. 434.) It has been held that these declarations are effective to authorize federal regulation of the delivery, receipt, storage and process ing of the grain, that is to say, the activities carried on in or about the "works". (Jorgensen v. Attorney General of Canada, [1971] S.C.R. 725; Chamney v. The Queen, [1975] 2 S.C.R. 151.)
Although none of the cases cited by these two authors focuses on the identical question, in my view their conclusions are in keeping with the thrust of these authorities. Even were I not bound by the majority view in Central Western, I should therefore have no hesitation in following it. 13
Of course, those undertakings which are independent of and severable from a federal work are not necessarily subject to federal jurisdiction. Hence farm service centres attached to elevators that were federal works were held not to be an integral part of the operation of the grain elevators nor necessarily incidental to the work of the eleva tors system: R. v. Saskatchewan Wheat Pool (1978), 89 D.L.R. (3d) 756; 43 C.C.C. (2d) 119; [1978] 6 W.W.R. 27 (Sask. C.A.). In the case at
" The issue as to the extension to be given to paragraph 92(10)(c) is canvassed but not resolved by Phineas Schwartz, "Fiat by Declaration - S. 92(10)(c) of the British North America Act (1960), 2 O.H.L.J. 1. Andrée Lajoie, Le pouvoir déclaratoire du Parlement, Montréal: Les Presses de l'Univer- sité de Montréal, 1969, takes a broad view of the federal declaratory power. I. H. Fraser, "Some Comments on Subsec tion 92(10) of the Constitution Act, 1867" (1984), 29 McGill L.J. 557, elucidates but does not resolve the problem. In my view he is correct in asserting (at p. 587) that "Jurisdiction over a work of necessity includes an element of control over its uses, whatever these uses may be: but jurisdiction over a work merely extends to these uses, it does not stem from them", and (at p. 606) that "the courts have properly refused to accept that there must be one undertaking merely because there is only one `undertaker' ". Of course, if there is more than one undertak ing, as in the case at bar, that leads to the secondary question that I now go on to raise.
bar, the Board was asked to rule on labour rela tions jurisdiction, not over all the employees of the two undertakings, but in relation only to the office employees in Chatham. The integration in ques tion, therefore, is that between those workers and the federal undertaking based upon the federal works.
Any such question of integration is really a secondary question, to be asked in relation to subsidiary undertakings. In this context, to which I now pass since it must be asked in the case at bar, the key issue is always the quality of the integra tion of a subsidiary undertaking into a core federal undertaking. As this Court said in Canada Labour Code (Re) (1986), [1987] 2 F.C. 30, at pages 48-49; 34 D.L.R. (4th) 228; (1986), 72 N.R. 348; 87 C.L.L.C. 14,017 (C.A.):
[T]he critical factor in determining constitutional jurisdiction in such cases is the "macro-relationship" between the subsidi ary operation and the core federal undertaking. The facts of this relationship should be examined from a functional practi cal point of view, and for federal jurisdiction to be established
(1) there must be a high degree of operational integration and
(2) it must be of an ongoing nature.
In the case at bar there is no doubt at all that the relationship between the two undertakings is of an ongoing nature. Nor has any case been built up by the applicant that there is not a high degree of operational integration. On the contrary, the appli cant admits in its memorandum of fact and law, paragraph 30, that:
30. Administration, accounting, and movement of grain and related operations are performed ... primarily by the adminis trative staff at Chatham, Ontario as part of the administration of the country elevator network system. [Emphasis added.]
The implication is that it is all an integrated system, the very finding made by the Board.
In fact, the applicant's case rested effectively on the proposition that the "country elevators" were not works for the general advantage of Canada. Once that issue is decided against the applicant and once it is established, following the Central Western case, that the undertaking based upon the federal work is itself under federal jurisdiction,
there is, as the case was argued before us, no basis on which this Court could find that the Board had made .an error of jurisdiction in concluding that there was a high degree of operational integration. The Board found on the facts that there was a basic federal undertaking and that the clerical operations at issue were intimately related to the basic federal undertaking. In my view this Court cannot say that this factual determination of oper ational integration (as seen by both relevant labour relations boards) was erroneous.
It should be noted that, in the Saskatchewan Wheat Pool case, the Saskatchewan Court of Appeal did not interfere with a finding by an administrative tribunal, but merely affirmed a conviction under provincial regulatory legislation. In the case at bar there is, it seems to me, no factual foundation on the basis of which this Court could reverse the decision of the Board.
In the light of my holding on this point, I have no need to consider the other possible bases of support for the Board's decision put forward by the Union.
In the result the section 28 application must be dismissed.
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The following are the reasons for judgment rendered in English by:
DESJARDINS J.A.: I have had the advantage of reading in draft the reasons for judgment of both Hugessen J.A. and MacGuigan J.A. I concur with the reasons for judgment of Hugessen J.A.
Section 55 of the Canada Grain Act, R.S.C., 1985, c. G-10, and section 76 of the Canadian Wheat Board Act, R.S.C., 1985, c. C-24 deal strictly with the "works" therein described. Parlia ment has not attempted in these Acts to bring within the scope of the declarations the undertak ings related to these works, although paragraph 2(h) of the Canada Labour Code, R.S.C., 1985, c. L-2 alludes to this possibility, despite the fact that
paragraph 92(10)(c) of the Constitution Act, 1867 refers to "works" and not "undertakings". 14
Quite apart from this, I do not understand the law as being that once a "work" is declared, the undertaking follows federal jurisdiction. What has been said in Chamney v. The Queen, [1975] 2 S.C.R. 151, at page 157; (1973), 40 D.L.R. (3d) 146; 13 C.C.C. (2d) 465; [1974] 1 W.W.R. 493, is that once an "elevator" has been declared, "[t]he Canadian Wheat Board Act applies controls to these premises". 15 The movement of the grain that enter the premises might be subject to federal legislation. But the undertaking is another matter. Even assuming that it could be said, as a result of the decision of this Court in Central Western Railway Corp. v. U.T.U., [1989] 2 F.C. 186; (1988), 47 D.L.R. (4th) 161; (1988), 84 N.R. 321 (C.A.), that the workers and management respon sible for the operation of the works declared come under federal labour legislation,—a matter I need not decide here—, this would not change the key character of the undertaking of the applicant which is local in nature. The applicant is a grain merchandiser wholly situated in Ontario. That three transfer or terminal elevators, fifteen feed warehouses, two seed cleaning mills and three feed mills have been declared to be for the general advantage of Canada, out of a network which includes also twenty-five country elevators and one seed bagging plant, and that, as part of its opera tion, it moves grain that enter the interprovincial and international trade, does not make it a federal core undertaking to which the labour relations of
14 Paragraph 2(h) of the Canada Labour Code, R.S.C., 1985, c. L-2 refers to "a work or undertaking". The validity of statutes containing declarations with respect to "works and undertakings" or even "undertakings" alone has been discussed in a number of fora. See P. W. Hogg, Constitutional Law of Canada, 2nd ed. Toronto: Carswell, 1985, at p. 492; K. Hans- en, "The Federal Declaratory Power under the British North America Act" (1968), 3 Man. L.J. 87, at pp. 94-95. A. Lajoie, Le pouvoir déclaratoire du Parlement. (Montréal: Les Presses de l'Université de Montréal, 1969 at p. 61; I. H. Fraser, "Some Comments on Subsection 92(10) of the Constitution Act, 1867" (1984), 29 McGill L.J. at p. 557, and the authorities cited. And also In Reference re Industrial Relations and Disputes Act, [1955] S.C.R. 529; per Rand J. [1955] 3 D.L.R. 721; at p. 553.
15 See also The Queen v. Thumlert (1960), 20 D.L.R. (2d) 335, at pp. 336, 341, 357; (1959), 28 W.W.R. 481 (Alta. C.A.).
the office and clerical employees working in Cha tham, Ontario, could attach.
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