A-514-89
Canadian Pacific Limited (Applicant)
v.
Canadian Human Rights Commission, and Gilles
Fontaine; and Sidney N. Lederman, Kristian A.
Eggum, and Jill M. Sangster, together constitut
ing a Human Rights Tribunal (Respondents)
INDEXED AS: CANADIAN PACIFIC LTD. V. CANADA (HUMAN
RIGHTS COMMISSION) (C.A.)
Court of Appeal, Iacobucci C.J., Urie and
Mahoney JJ.A.—Winnipeg, September 25;
Ottawa, November 13, 1990.
Human rights — Cook assigned to CP railroad gang by
catering company forced to quit — On learning cook infected
with HIV virus, Roadmaster refusing to eat, signalling danger
to crew — Cook feared for safety — Human Rights Tribunal
finding constructive dismissal, and violation of Canadian
Human Rights Act, s. 7 — Application of s. 7 to conduct of
someone other than actual employer, who controls or influ
ences employer — Meaning of "employ" — CP controlling
who would work as cook as caterer's only customer — CHRA
Tribunal having jurisdiction over employment matters nor
mally within provincial competence (catering of food services)
where essential to core federal undertaking (interprovincial
railway).
Constitutional law — Distribution of powers — Cook for
CP railroad gang forced to quit due to inhospitable climate
created by Roadmaster upon learning cook infected with HIV
virus — Human Rights Tribunal under Canadian Human
Rights Act having jurisdiction over employment matters nor
mally within provincial competence (cooking or catering of
food services), when essential to core federal undertaking
(interprovincial railway).
Construction of statutes — Canadian Human Rights Act, s.
7 — "Employ" used in broader sense than master/servant
relationship — Interpretation should advance purposes of
human rights legislation — Adoption of ordinary, grammati
cal meaning "to utilize" resulting in application of s. 7 to
someone other than actual employer exerting considerable
influence or control over employer.
This was an application to set aside the decision of a Human
Rights Tribunal that the termination of a cook for a railroad
gang by Canadian Pacific Limited (CP) violated Canadian
Human Rights Act, section 7. Section 7 provides that it is a
discriminatory practice to directly or indirectly refuse to
employ or continue to employ any individual on a prohibited
ground of discrimination. CP contracted out the catering ser
vices to R. Smith (1960) Limited (Smith). When the Roadmas-
ter learned that the cook asssigned to his crew by Smith was
infected with the HIV virus, which can lead to AIDS, he
refused to eat, thereby signalling to the crew that they were in
danger. Thereafter, the cook feared for his safety at the hands
of the crew. Although not expressly told to leave, an inhospi
table climate was created which gave the cook no option but to
depart as quickly as possible. The Tribunal found that the cook
had been constructively dismissed and that CP's failure to
adopt a policy regarding AIDS in the workplace left employees,
such as the Roadmaster, to deal with such situations based on
their own personal misconceptions. It was conceded that the
cook was under a "disability" within subsection 3(1) of the Act.
The first issue was whether section 7 applies to someone other
that the actual employer. According to the Tribunal, section 7
applied to someone who had a considerable degree of control or
influence over the actual employer. The second issue was
whether the Tribunal had jurisdiction, since cooking or catering
of food services was within provincial competence.
Held, the application should be dismissed.
"Employ" should be given a broader meaning than that
afforded by the master/servant relationship. It should be inter
preted to advance the purposes of human rights statutes. To
"utilize" is a common and grammatically correct use of
"employ". On the facts, especially that CP was Smith's only
customer and the inference that CP would control who would
work as a cook on its railroad gangs, it was open to the
Tribunal toeconclude that CP indirectly refused to continue to
employ the cook, interpreting "employ" to mean "utilize".
Parliament may assert exclusive jurisdiction over employ
ment matters where such jurisdiction is an integral part of its
primary competence over some other federal work, undertaking
or business. CP's railway is a federal undertaking by reason of
its interprovincial character. Smith provided exclusive catering
services for CP railroad gangs, with CP as its only customer.
The services were vital, essential and integral to CP's operation
of the railway. Railroad gangs, are sent to remote areas to do
maintenance on the railways and cannot do their work without
being fed by on-site cooks. There was a direct connection
between CP's core federal undertaking as a railway and
Smith's activities.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Human Rights Act, R.S.C., 1985, c. H-6, ss. 3,
7.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C., 1985, 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)(a).
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Federal Court Rules, C.R.C., c. 663, R. 1102.
CASES JUDICIALLY CONSIDERED
APPLIED:
Pannu, Kang and Gill v. Prestige Cab Ltd. (1986), 73
A.R. 166; 31 D.L.R. (4th) 338; [1986] 6 W.W.R. 617; 47
Alta L.R. (2d) 56; 87 CLLC 17,003 (C.A.); Cormier v.
Human Rights Commission (Alta.) and Ed Block
Trenching Ltd. (1984), 56 A.R. 351; 14 D.L.R. (4th) 55;
33 Alta. L.R. (2d) 359; 6 C.C.E.L. 60; 5 C.H.R.R.
D/2441 (Q.B.); Northern Telecom Ltd. v. Communica
tions Workers of Canada, [1980] 1 S.C.R. 115; (1979),
98 D.L.R. (3d) 1; 79 CLLC 14,211; 28 N.R. 107;
Bernshine Mobile Maintenance Ltd. v. Canada Labour
Relations Board, [1986] 1 F.C. 422; (1985), 22 D.L.R.
(4th) 748; 85 CLLC 14,060; 62 N.R. 209 (C.A.).
REFERRED TO:
Robichaud v. Canada (Treasury Board), [1987] 2 S.C.R.
84; (1987), 40 D.L.R. (4th) 577; 87 CLLC 17,025; 75
N.R. 303; Northern Telecom Canada Ltd. et al. v. Com
munication Workers of Canada et al., [1983] 1 S.C.R.
733; (1983), 147 D.L.R. (3d) 1; 83 CLLC 14,048; 48
N.R. 161.
COUNSEL:
Marc W. Shannon for applicant.
Peter C. Engelmann for respondent Canadian
Human Rights Commission.
Timothy J. Preston for Gilles Fontaine.
SOLICITORS:
Canadian Pacific Ltd. Legal Services for
applicant.
Canadian Human Rights Commission Legal
Services for respondent Canadian Human
Rights Commission.
Kaufman, Cassidy, Winnipeg, for Gilles
Fontaine.
The following are the reasons for judgment
rendered in English by
IAcoBucci C.J.: This section 28 [Federal Court
Act, R.S.C., 1985, c. F-7] application seeks to
review and set aside the decision rendered on
October 27, 1989 by a Human Rights Tribunal
[Fontaine v. Cdn. Pacific Ltd. (1989), 29 C.C.E.L.
192; 11 C.H.R.R. D/288; 89 CLLC 17,024]
("Tribunal") appointed under the Canadian
Human Rights Act ("CHRA"). 1 The Tribunal
decided that the termination of Mr. Gilles Fon-
taine by Canadian Pacific Limited ("CP") violat
ed section 7 of the CHRA 2 and awarded monetary
damages and related relief which are not chal
lenged in this application. It would be helpful to
set forth the surrounding facts in more detail.
FACTS
In December, 1985 Mr. Fontaine was diagnosed
as having the Human Immunodeficiency Virus
("HIV") which can lead to Acquired Immune
Deficiency Syndrome ("AIDS"). His family
doctor did not recommend that he cease working
as a cook, an occupation in which he had been
engaged for many years. Mr. Fontaine was told
there was no medical evidence that the HIV could
be spread to others in his work and he was advised
that it was up to him whether to reveal that he had
the HIV.
In the Spring of 1987, Mr. Fontaine went to the
offices of R. Smith (1960) Limited ("Smith") to
apply for a cook's position and while there met
with Mrs. Rita Berthelette, the personnel manager
of Smith. About a month and a half later, he was
' R.S.C., 1985, c. H-6.
2 Section 7 provides as follows:
7. It is a discriminatory practice, directly or indirectly,
(a) to refuse to employ or continue to employ any
individual ...
on a prohibited ground of discrimination.
advised he was hired and was assigned to be a cook
for a CP railroad gang performing maintenance
work between Broadview and Moose Jaw, Sas-
katchewan. His duties included maintaining the
kitchen, ordering food supplies, and feeding three
meals per day to a crew of some 16 or 17 men.
On May 19, 1987, Mr. Fontaine reported to the
Roadmaster, Mr. J. Fowlie, who was in charge of
the railroad gang at Broadview, Saskatchewan.
For one month, Mr. Fontaine carried out his cook
ing responsibilities without complaint working 15
hours a day from Monday through Thursday. In
addition, Mr. Fowlie, on CP's behalf, engaged Mr.
Fontaine's services to be responsible each weekend
for checking a generator and generally serving as a
watchman when the railroad crew was away from
the site. These services were part of a distinct
employment arrangement between Mr. Fontaine
and CP and were independent of his cooking
duties.
On the evening of June 15, 1987, Mr. Fontaine
told a member of the railroad gang that he was
infected with the HIV.' This news spread rapidly
and from this point on there was a difference of
opinion among the various individuals involved as
to what happened.
However, without going through all of the dif
ferent viewpoints of witnesses on whether Mr.
Fontaine quit voluntarily or whether he was com
pelled to leave as a result of the discovery of his
having the HIV virus, it is important to note that
the Tribunal found and concluded that Mr. Fon-
taine was constructively dismissed. The Tribunal's
comments on this point are important and bear
repeating:
We are asked to decide whether Mr. Fontaine quit his job of
his own volition or whether he felt compelled to leave as a
result of the discovery of his illness. It is clearly acknowledged
by Mr. Fontaine that neither Mr. Fowlie nor Mr. Lewko nor
indeed Mrs. Berthelette ever told him that he was fired. There
was no direct termination of employment in that sense.
However, one indisputable fact emerges from the evidence
and that is the genuine fear that Mr. Fontaine experienced
after his conversation with Mr. Fowlie early in the morning of
June 16, 1987. Not only did Mr. Fowlie express to Mr.
3 At pp. 196-198.
Fontaine his personal concern about the safety of his men and
the danger of the spread of AIDS throughout the camp but he
personally refused to eat breakfast that morning. That served
as a dramatic statement to his own men that they were facing a
serious danger. If the Roadmaster who was in charge of the
entire crew led by example in this fashion, one could readily
imagine how his crew might react towards Mr. Fontaine.
Moreover, in cross-examination Mr. Fowlie admitted the truth
of a statement that he had made in June 1988 to a Human
Rights investigator to the effect that he did not want Mr.
Fontaine to cook for the gang for two reasons. One reason was
his personal concern that Mr. Fontaine could pass on the HIV
infection as little was known about the disease. Even if he and
his men were not so exposed, he was worried that his men
might nevertheless attack Mr. Fontaine if he remained in camp.
His concern about this was so great that he stated that he
parked his truck in such a way as to prevent his men from
driving their cars to town to seek out Mr. Fontaine. Mr.
Fontaine's fear was so intense that he took refuge in a laundry
room in Broadview to avoid any altercation. Mr. Fontaine's
expression to others of fear for his own safety was confirmed by
the testimony of Mrs. Berthelette and Mr. Hutton.
Following the discussion with Mr. Fowlie, Mr. Fontaine was
certainly left with the impression that he could not continue his
employment at the camp. Even before he went to town to
telephone Mrs. Berthelette, he had already started to pack his
bags. Mrs. Berthelette in her own testimony stated that she
wanted Mr. Fontaine to remain on the site until the week's end
not for the purpose of conducting an investigation into the
matter but rather to buy some time to allow her to send a
replacement cook up to the site. We must conclude that there
was no expectation on her part that Mr. Fontaine's tenure
would be anything but short-lived. Furthermore, no one — not
Mr. Fowlie, not Mr. Lewko not Mrs. Berthelette — did or said
anything to allay Mr. Fontaine's fears.
Accordingly, although no one told him expressly to get out
and no one directly threatened him, an inhospitable climate was
created which left Mr. Fontaine no reasonable option but to
depart as quickly as possible. This apprehension of fear was
created by Mr. Fowlie and there is no question it all arose
because Mr. Fontaine possessed the HIV. Mrs. Berthelette's
very telling statement in the record of employment that Mr.
Fontaine was "dismissed by the Roadmaster for having the
AIDS virus" must have been based upon what Mr. Fowlie told
her. In the circumstances, one must conclude that Mr. Fontaine
did not voluntarily quit but was constructively dismissed: See
Hinds v. Canada (Employment & Immigration Comm.)
(1988), 24 C.C.E.L. 65; 88 C.L.L.C. 17,029; 10 C.H.R.R.
D/5683 at D/5696 (Cdn. Human Rights Trib.). We find,
therefore, that he was dismissed because of that fact and the
responsibility for the termination must rest primarily with Mr.
Fowlie which in turn is attributable to his employer, C.P.: see
Robichaud v. Canada (Treasury Bd.), [1987] 2 S.C.R. 84; 40
D.L.R. (4th) 577; 8 C.H.R.R. D/4326; 87 C.L.L.C. 17,025; 75
N.R. 303.
Moreover, C.P.'s failure to have in place an express and clear
policy about AIDS in the workplace has meant that employees
such as Mr. Fowlie have been left to deal with these situations
based on their own personal misconceptions. Dr. M. Grimard,
the Chief of Health and Medical Services for C.P. was called as
a witness to state C.P.'s position with respect to individuals who
have AIDS or the HIV. He testified that C.P. views such
persons just like anyone else, that they pose no threat and have
no occupational limitations. Although there is no written policy
in C.P. about AIDS and employment, Dr. Grimard had written
articles in the C.P. newsletter putting the AIDS problem in
perspective and emphasizing that it is not easily conveyed from
one individual to another. These newsletter articles, however,
are not sufficient for the purpose of making C.P.'s position on
these matters clear to its employees. Dr. Grimard himself
estimated that there were 200 to 300 C.P. employees with the
HIV infection in 1987 and that fact alone suggests that the
Fontaine incident may not be the last one unless C.P. develops
and disseminates among its employees a written policy against
discrimination of those with AIDS or the HIV infection to
educate its personnel and prevent irrational fears that could
otherwise arise in these circumstances. 4
THE TRIBUNAL'S DECISION
With these facts and related findings made by
the Tribunal including the concession by CP that a
person who suffers from the HIV is under a "disa-
bility" within the meaning of subsection 3(1) of
the CHRA, 5 the Tribunal concluded that CP con
travened section 7 of CHRA by refusing to contin
ue to employ Mr. Fontaine because of a prohibited
ground of discrimination, namely, his infection
with the HIV virus. In reaching this conclusion,
the Tribunal rejected CP's legal arguments that
firstly CP was not the "employer" of Mr. Fontaine
but Smith was and therefore CP was not respon
sible under section 7 of the CHRA; and secondly,
the Tribunal lacked jurisdiction since the activity
in question, cooking or the catering of food ser-
4 At pp. 198-200.
'Subsection 3(1) of the CHRA provides as follows:
3. (1) For all purposes of this Act, race, national or ethnic
origin, colour, religion, age, sex, marital status, family status,
disability and conviction for which a pardon has been grant
ed are prohibited grounds of discrimination.
Similarly counsel for CP acknowledged there was no valid
basis for refusing to continue to employ someone with the HIV
virus on the basis that being free of the virus was a bona fide
occupational requirement so as to justify discrimination for that
reason under section 15 of the CHRA.
vices, was a matter within provincial competence
and accordingly, the CHRA was inapplicable.
These same arguments, with some modification,
were made before us and I would like now to deal
with them.
DISCUSSION AND DISPOSITION
1. Section 7 of the CHRA
Under this argument, counsel for CP said it
never employed Mr. Fontaine but Smith did and
as the employment relationship in question was
between Smith and Mr. Fontaine, CP did not
refuse to continue to employ Mr. Fontaine and is
therefore not liable under section 7 of the CHRA.
CP argues that there must be some employment
relationship for section 7 to apply and that rela
tionship can be the traditional master/servant one
or that of an independent contractor but Mr.
Fontaine fell into neither category vis-à-vis CP
because he was not an employee of CP and he did
not have an independent contracting relationship
with CP in so far as his cooking duties were
concerned.
CP submitted that the Tribunal erred when it
held that one came within the provisions of section
7 when it could be shown that the impugned
conduct was by someone who had a considerable
degree of control or influence over the actual
employer and indirectly upon its employee.
According to the Tribunal, the language of section
7 is broad enough to include discriminatory prac
tices by someone who by reason of his position can
induce a breach of an employment arrangement. 6
Although the language used by the Tribunal
may not be apt in all respects, I agree with the
result at which it arrived on the section 7 argu
ment. In my view, in looking at the purpose of the
CHRA and the wording of section 7, CP contrav
ened its provisions.
I agree with the authorities that have given a
broader meaning to "employ" than that afforded
6 See Case, volume 1, at pp. 18-19.
by the technical " master/servant relationship. In
Pannu, Kang and Gill v. Prestige Cab Ltd.,' the
Alberta Court of Appeal accepted the approach of
McDonald J. in Cormier v. Human Rights Com
mission (Alta.) and Ed Block Trenching Ltd.' to
the effect that the words "employer", "employ"
and "employment" are to be interpreted to
advance the purposes of the provincial human
rights statute. 9 Especially, instructive are the words
of Laycraft C.J.A., who wrote the judgment of the
Alberta Court of Appeal; he said:
I respectfully agree with these broad interpretations of s. 7 of
the Individual's Rights Protection Act. . "Employ" and
"employment" or words derived from them can, indeed, be used
in the sense of the common law master/servant relationship in
which control is a principle factor in determining the existence
of the relationship. But, as the analysis by McDonald, J., in
Cormier indicates, the meaning may be restricted or extended
by statutory definition or some particular aspect may be
emphasized as in Yellow Cab Ltd. v. Board of Industrial
Relations (supra). Without such a statutory definition the word
"employ" and its derivatives are ambiguous. It is a common,
and grammatically correct, use of "employ" or "employment"
to use the words in the sense of "utilize".
In my view, the whole context of the Individual's Rights
Protection Act, demonstrates that in s. 7 the words are used in
a sense broader than the ordinary master/servant relationship.
The Act does not purport to intervene in purely private rela
tionships but where a person provides "a service to the public it
seems clear the Act does intervene. It does so not primarily by
aiming at the offender but by establishing a mechanism to
remedy the wrong done or about to be done to the victim of the
discrimination. In that context the broader sense of "employ"
as meaning "to utilize" is in my opinion, the proper
interpretation. I°
So can it be said that in the instant case CP
refused to continue to "utilize" Mr. Fontaine as a
cook? This brings us to take a closer look at
section 7 of the CHRA.
As stated above, section 7 provides. that it is a
discriminatory practice directly or indirectly to
refuse to employ or continue to employ any
7 (1986), 73 A.R. 166 (C.A.).
8 (1984), 56 A.R. 351 (Q.B.).
9 See, in this respect, the Supreme Court of Canada's deci
sion in Robichaud v. Canada (Treasury Board), [1987] 2
S.C.R. 84, particularly La Forest J. at pp. 89-91.
10 Supra note 7, at pp. 171-172.
individual on a prohibited ground of discrimina
tion. On the facts as found by the Tribunal, espe
cially that CP was the only customer that Smith
had at the time in question and the inference that
CP would undoubtedly call the shots as to who
would work as a cook on its railroad gangs, it was
clearly open to the Tribunal to conclude that CP
indirectly refused to continue to employ Mr. Fon-
taine interpreting "employ" to mean "utilize" as
already discussed.
Accordingly, CP contravened section 7 unless
the Tribunal was without jurisdiction, the second
major argument raised by CP.
2. Jurisdiction of the Tribunal
Under this branch of argument, CP states that
the matter in question is solely within provincial
competence and outside the reach of the CHRA. I
do not agree.
Parliament may assert exclusive jurisdiction
over employment matters where such jurisdiction
is an integral part of its primary competence over
some other federal work, undertaking or business.
It is not contested that CP's railway is a federal
undertaking by reason of its interprovincial char
acter (see paragraph 92(10)(a) of the Constitution
Act, 1867 [30 & 31 Vict., c. 3 (U.K.) [R.S.C.,
1985, Appendix II, No. 5] (as am. by Canada Act
1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act 1982, item 1)]). The question is wheth
er the cooking and catering needs, which taken by
themselves are normally provincial in nature, when
contracted out to Smith as in the present circum
stances are likewise a federal undertaking.
According to Northern Telecom Ltd. v. Com
munications Workers of Canada," there are two
steps to follow in answering the question. 12 The
11 [1980] 1 S.C.R. 115: See also Northern Telecom Canada
Ltd. et al. v. Communication Workers of Canada et al.,
[1983] 1 S.C.R. 733.
12 See Idem, at p. 133, per Dickson J. (as he then was).
first is to determine whether a core federal under
taking is present and the extent of that core under
taking. The second is to look at the normal or
habitual activities of the subcontractor's operation
as a going concern and the practical and functional
relationship of these activities to the core federal
undertaking to determine whether the subcontrac
tor's operation can be characterized as vital, essen
tial or integral to the federal undertaking.
The decision of this Court in Bernshine Mobile
Maintenance Ltd. v. Canada Labour Relations
Board" illustrates the application of the above
principles very well to a fact situation similar in
important respects to the case before us. In that
case, a former maintenance employee of an inter-
provincial trucking company (Reimer) incorpo
rated his own truck maintenance company (Bern-
shine) to do Reimer's washing and tire
maintenance. Reimer was its sole customer and
the issue was whether the nature of the activity
carried on by Bernshine was vital, essential and
integral to the operation of Reimer's federal
undertaking of interprovincial trucking.
Urie J.A. said this:
In this case, since, at the time of the hearing, Reimer was
Bernshine's only customer, the importance of the Reimer work
to it is obvious. It certainly cannot be said that it was excep
tional 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 provide are casual
or exceptional. On the peculiar facts of this case they were
certainly not.
Dickson, J., in Telecom No. 2 found [at page 722 S.C.R.; 5
D.L.R.] [the operational connection between the activity in
question and the federal undertaking] factor [to] "be the most
critical in determining whether the federal Parliament or the
provincial legislature has constitutional jurisdiction". Estey J.
13 [1986] 1 F.C. 422 (C.A.).
agreed with this assessment. It is the factor where the test of
"vital", "essential" or "integral" comes into play.
The requisite, inquiry thus is one of fact, viz., is the nature of
the work performed by Bernshine for Reimer essential, vita_ l or
integral to the Reimer operations?
The Board found as à 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 com
pany and a separate employer compared to Reimer, but in a
constitutional 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
Moreover, without trucks Reimer's business could not be
carried on. Without proper tires the trucks and tractors and
trailers could not be operated. 14
Here, Smith is like Bernshine in that the former
provides exclusive catering services for CP railway
gangs with CP its only, customer and that the
services provided by Smith are vital, essential and
integral to CP's operation of the railway. The
railway needs to be maintained, rail gangs are
needed to go to remote areas to do maintenance,
and these gangs cannot do their work without
being fed by on-site cooks. Consequently there is a
4 1d, at pp. 433-435.
direct connection between CP's core federal under
taking as a railway and Smith's activities. 15
In sum, I would dismiss the section 28
application.
URJE J.A.: I agree.
MAHONEY J.A.: I agree.
15 The degree of integration between CP and Smith is
dramatically illustrated by the terms of the contract entered
into between CP and Smith. It should be mentioned that this
contract was not before the Tribunal and at the hearing of this
application, it was permitted to be added to the case under Rule
1102(1) of the Federal Court Rules [C.R.C., c. 663] as it
related to the jurisdiction of the Tribunal. See Affidavit of
René Duval, (Exhibit E), August 21, 1990. Suffice it to say
that a number of provisions illustrate the integration of Smith's
activities into those of CP. For example, the contract calls for
the furnishing and equipping of food preparation facilities by
Smith on railway cars of CP and for Smith to charge deprecia
tion expense on equipment supplied by it for food preparation.
In passing, I would point out that the Tribunal noted that the
terms of the contract were not put into evidence: see Case,
volume 1, at p. 14. I do not doubt that the Tribunal would have
found the contract's terms to be of the utmost importance both
on the section 7 and jurisdictional arguments. However, even
more troublesome are the repeated representations by counsel
for CP to the Tribunal that there was not any control of Smith
by CP: see Case, volume 5, at pp. 687, 694. Yet clause 21 of the
contract provides that, in effect, CP can require any employee
of Smith whom CP regards as unsatisfactory to be removed or
replaced.
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.