Federal Court Decisions

Date: 20020212

Docket: T-984-00

Neutral citation: 2002 FCT 160

BETWEEN:

WIC WESTERN INTERNATIONAL

COMMUNICATIONS LTD. ("WIC")

Applicant

and

COMMUNICATIONS, ENERGY

AND PAPERWORKERS UNION OF CANADA ("CEP")

and ATTORNEY GENERAL OF CANADA

Respondents

                                                            REASONS FOR ORDER

MacKAY J.

[1]                 These are reasons, for the record, relating to an Order dated June 21, 2001 issued after hearing the applicant's application for judicial review, which application I then allowed. The Order provided that the decision of the regional safety officer, Serge Cadieux, dated May 4, 2000, and directions attached thereto were to be set aside, and the directions by a safety officer dated April 23, 1999 for compliance by "WIC Western International Communications Ltd. WIC and all its Departments" were also set aside.

[2]                 When the matter came on for hearing in Vancouver on June 21, 2001 neither of the respondents was represented. Issues of concern to the respondent union had been resolved and it had withdrawn from further proceedings. The Attorney General of Canada had indicated no interest in the matter. By Order of Mr. Justice Rouleau on April 4, 2001 the applicants were authorized to proceed to determination of the issue raised by the application without further notice to respondents.

[3]                 After hearing the submissions on behalf of the applicant I granted the order sought, setting aside the decision and directions of May 4, 2000, and the directions of April 23, 1999, which were in question. Those directions, originally set out in April 1999 and confirmed with variation by the decision and directions of May 4, 2000, would have required the applicant to institute certain safety measures, purportedly under Part II of the Canada Labour Code, R.S.C. 1985, c. L-2, as amended (the "Code").

[4]                 The background of this matter is set out in the decision of May 4, 2000 by the regional safety officer as follows:

On February 13, 1999 Mr. Jeff Fisher, a microvan operator for BC TV was electrocuted when the telescopic antenna on his vehicle came into contact with an overhead power line. The accident was investigated by safety officer Dan Strickland, Human Resources Development Canada, amid some initial uncertainty with his provincial counterparts as to who between the federal and provincial government had jurisdiction in this matter. At the conclusion of his investigation, the safety officer issued directions to BC TV, a Division of WIC Television Ltd. Those directions were not appealed by BC TV.

The safety officer then formed the opinion that WIC and all other Divisions of WIC were "ignorant" of the Canada Labour Code, Part II (the Code). In fact, the safety officer established that WIC believed that the Code did not apply to their business which was described by Mr. Litherland as being strictly a holding company not engaged in broadcasting and which, in WIC's opinion, comes under provincial jurisdiction. The safety officer disagreed with this opinion and issued a lengthy direction (APPENDIX) to WIC which is the subject of this review under section 146 of the Code.

[5]                 The review by the regional safety officer of the direction issued to it was initiated pursuant to s. 146 of the Code. The regional safety officer conducted an oral hearing and thereafter written submissions were made by the parties. Before the decision of the regional safety officer, on March 31, 2000 WIC distributed its assets in a winding up.

[6]                 While a number of issues were raised in this matter, only the primary issue requires resolution, that is, whether WIC was a corporation subject to the Code. If it were not such an organization then the directions of the safety officer, and their confirmation by the regional safety officer were made in error, an error in law relating to their jurisdiction under the Code.

[7]                 At all material times WIC Western International Communications Ltd. ("WIC") was a holding company, holding shares primarily in broadcasting companies including WIC Television Ltd. ("WIC TV"), WIC Premium Television Ltd. and WIC Radio Ltd. Although it owned shares in these companies WIC did not have any involvement in the day-to-day operations of the companies it owned, including WIC TV. WIC had two offices, one in Vancouver with approximately 13 office staff, and the second office in Ottawa where two staff were employed. All staff were engaged in management and administrative matters concerning the management of WIC's investments. WIC did not own or hold broadcasting licenses.

[8]                 BC TV, the employer of the person unfortunately killed in the accident which gave rise to the safety officers' concerns, was a separate corporation wholly owned by WIC TV. WIC TV and WIC had separate management teams and separate boards of directors and within WIC TV each division including BC TV had its own personnel managing the day-to-day broadcasting operations. Health and safety issues in the various companies held by WIC as a shareholder, were dealt with by individual companies and their management teams and WIC was not responsible for those matters in any operating company. It had no involvement in the management or safety concerns of WIC TV or its employees, or in the employees of any of WIC TV's divisions including BC TV.

[9]                 Following the accident to the employee of BC TV, the investigation undertaken by a Human Resources Development Canada Safety Officer, pursuant to Part II of the Code resulted in his issuing directions to BC TV, which directions were apparently complied with by the company. Thereafter, in addition to the directions to BC TV, directions to WIC were also issued as a result of the same accident. Those are the directions here in issue which were subsequently reviewed at the request of WIC by the Regional Safety Officer and by his decision on May 4, 2000. That officer varied the directions by removing references to BC TV and to other organizations held by WIC. While he held WIC was not the employer of BC TV staff, he did find that WIC was a federal work, undertaking or business and was therefore subject to Part II of the Code. His decision, here in question, imposed operational directions in relation to WIC.

[10]            In my opinion, the Regional Safety Officer, and the Safety Officer before him, erred in law in concluding that WIC was subject to the Code, Part II, concerning occupational safety and health. In part that error appears to have been based on patently unreasonable findings of fact which ignored clear evidence of an officer of WIC that it had no involvement in the day-to-day operations of the individual broadcasting entities and in particular, not of BC TV, and there was no other evidence on the matter.

[11]            In Northern Telecom Ltd. v. Communications Workers of Canada et al. (1979), 98 D.L.R. (3^rd) 202 (S.C.C.) at page 14 the Court set out the test for whether a particular entity is a federal work, undertaking or business subject to federal regulation of labour matters, as follows:

First, one must begin with the operation which is at the core of the federal undertaking. Then the Courts look at the particular subsidiary operation engaged in by the employees in question. The Court must then arrive at a judgment as to the relationship of that operation to the core federal undertaking, the necessary relationship being variously characterized as "vital", "essential" or "integral".

In this case there is no question that BC TV, a division of WIC Television Ltd., engaged in broadcasting and was a federal undertaking or business subject to the Code. Yet the evidence is that WIC was not involved in the day-to-day management or the general operations of either of those companies. WIC's function was to manage its shares in various broadcasting companies and to manage its investments, without responsibility for ongoing operations of any of the broadcasting entities. WIC's operations were not vital to those of BC TV, apart from WIC's holding of WIC TV shares. Mere holding of shares in a business falling within federal legislative competence does not bring a corporate shareholder within federal jurisdiction to regulate.

[12]            By s-s. 123(1), Part II of the Code concerning occupational safety and health applies to employment on or in connection with the operation of any federal work, undertaking or business, other than one in the northern territories and such a business under s. 2 of the Code, apart from specialized operations there specified, such as a radio broadcasting station, includes "a work, undertaking or business outside the exclusive legislative authority of the legislature of the provinces". On the facts before the safety officers it was an error in law to conclude that WIC was a business outside the legislative authority of the province.

[13]            In my opinion, the operations of WIC do not fall within the definition provided under the Code of a federal work, undertaking or business. Those operations are not within the legislative jurisdiction of the safety officer or the regional safety officer exercising their functions pursuant to Part II of the Code. In my view, that is consistent with the decision of the Canada Labour Relations Board in CFCN Television and N.A.B.E.T. (1991), 15 CLRBR (2^nd) 93 and also the decision of the Quebec Superior Court in Cogeco Métromédia Enr. v. Beetz et al. (1999) 182 D.L.R. (4^th) 472 (Que. Sup. Ct.).

[14]            For these reasons the Order issued on June 21, 2001 setting aside the questioned decisions of the safety officers and the directions issued by each of them to WIC.

                                                                                                                                                                       (signed) W. Andrew MacKay

                                                                                                              ___________________________

                                                                                                                                                           JUDGE

OTTAWA, Ontario

February 12, 2002.