Date: 20000717
Docket: A-425-99
OTTAWA, ONTARIO, MONDAY, THE 17TH DAY OF JULY, 2000
CORAM: THE HONOURABLE MR. JUSTICE LINDEN
THE HONOURABLE MR. JUSTICE ROTHSTEIN
THE HONOURABLE MR. JUSTICE MALONE
BETWEEN:
OFFSHORE LOGISTICS INCORPORATED
Applicant
- and -
HALIFAX LONGSHOREMEN"S ASSOCIATION,
LOCAL 269 OF THE INTERNATIONAL
LONGSHOREMEN"S ASSOCIATION
Respondent
JUDGMENT
The appeal is dismissed with costs.
"A.M. Linden"
J.A.
Date: 20000717
Docket: A-425-99
CORAM: LINDEN J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
OFFSHORE LOGISTICS INCORPORATED
Applicant
- and -
HALIFAX LONGSHOREMEN"S ASSOCIATION,
LOCAL 269 OF THE INTERNATIONAL
LONGSHOREMEN"S ASSOCIATION
Respondent
HEARD at Montreal, Québec, on Thursday, June 22, 2000
JUDGMENT delivered at Ottawa, Ontario, on Monday, July 17, 2000
REASONS FOR JUDGMENT BY: ROTHSTEIN J.A.
CONCURRED IN BY: LINDEN J.A.
MALONE J.A.
Date: 20000717
Docket: A-425-99
CORAM: LINDEN J.A.
ROTHSTEIN J.A.
MALONE J.A.
BETWEEN:
OFFSHORE LOGISTICS INCORPORATED
Applicant
- and -
HALIFAX LONGSHOREMEN"S ASSOCIATION,
LOCAL 269 OF THE INTERNATIONAL
LONGSHOREMEN"S ASSOCIATION
Respondent
REASONS FOR JUDGMENT
ROTHSTEIN J.A.
INTRODUCTION
[1] This is a judicial review of a June 9, 1999 decision of the Canada Industrial Relations Board that granted an application by the respondent Union for inclusion in its geographical certification for the Port of Halifax, of the applicant"s operations of loading and unloading of vessels chartered to Mobil Oil Canada Properties at the Mobil dock at Dartmouth, Nova Scotia. The Board Order was made under section 34 of the Canada Labour Code R.S.C. 1985, c.L-2, a provision dealing with labour relations in the longshoring industry. Subsection 34(1) provides:
| 34. (1) Where employees are employed in (a) the long-shoring industry, or (b) such other industry in such geographic area as may be designated by regulation of the Governor in Council on the recommendation of the Board, the Board may determine that the employees of two or more employers actively engaged in the industry in the geographic area constitute a unit appropriate for collective bargaining and may, subject to this Part, certify a trade union as the bargaining agent for the unit. |
34. (1) Le Conseil peut décider que les employés de plusieurs employeurs véritablement actifs dans le secteur en cause, dans la région en question, constituent une unité habile à négocier collectivement et, sous réserve des autres dispositions de la présente partie, accréditer un syndicat à titre d'agent négociateur de l'unité, dans le cas des employés qui travaillent_: a) dans le secteur du débardage; b) dans les secteurs d'activité et régions désignés par règlement du gouverneur en conseil sur sa recommandation. |
[2] Section 34 is unique in that it empowers the Board to join together, for collective bargaining purposes, independent employers in a geographic area. The context is usually the hiring hall method of employment whereby all employers obtain employees as needed from the hiring hall.
ISSUES
[3] The applicant Offshore challenges the Board"s order on four grounds.
| 1. The Board"s determination that Offshore"s employees were engaged in longshoring is patently unreasonable. |
| 2. The decision of the Board was rendered by the Chairman alone, in violation of the Canada Labour Code. |
| 3. The proceedings before the Board violated the principles of natural justice. |
| 4. Offshore is subject to provincial and not federal jurisdiction and the Board exceeded its constitutional jurisdiction in purporting to regulate its labour relations. |
FACTS
[4] Under a Supply Base Management Agreement between Offshore and Mobil, Offshore provides services and equipment to manage and operate a supply base at Dartmouth, Nova Scotia, for the Sable Offshore Energy Project. The supply base consists of a warehouse/pipeyard at 30 Atlantic Street, about 1 km from the waterfront at Dartmouth and the Mobil dock.
[5] Offshore employs 10 persons at the supply base, consisting of 2 coordinators, 1 secretary, 1 foreman and 6 hourly-rated general labourers, one of whom is also a crane operator.
[6] The Offshore employees work at both the pipeyard and the Mobil dock. About 75% of time of the Offshore employees is spent at the pipeyard and 25% at the Mobil dock. The work at the dock involves the loading and unloading of vessels chartered to Mobil.
[7] The vessels are chartered to Mobil by Secunda Marine Services Ltd. The ownership of Offshore and Secunda is common, although each is under separate management.
[8] The Mobil dock is located within the Union"s geographical certification at the Port of Halifax.
[9] By application dated June 11, 1998, the Union requested the Board to amend a prior Board order granting the Union its geographical certification at the Port of Halifax to include Offshore.1 The Union"s request was limited to including in its certification only the work of Offshore employees at the Mobil dock, not the work at the pipeyard.
[10] Before the Board, the Union argued that Offshore"s work at the dock involved the loading and unloading of vessels, that such vessels were engaged in navigation and shipping and that the work was therefore within the Board"s jurisdiction and within the scope of the Union"s longshoring certification. Offshore argued that its work at the dock was the loading and unloading of vessels related to oil and gas exploration and development. To the extent that some work was of a longshoring nature, Offshore said this should not govern as the work was largely not a part of navigation and shipping but was work related to oil and gas exploration.
WAS THE BOARD"S DECISION PATENTLY UNREASONABLE?
[11] Offshore argues that the Board"s determination that its employees were engaged in longshoring is patently unreasonable. The argument is made because if the work is not considered longshoring, section 34 of the Code is not applicable.
Standard of Review
[12] While Offshore submits the Board"s decision is patently unreasonable, it makes a preliminary argument that what is at issue is a jurisdictional question subject to the correctness standard of review. The application of section 34 of the Code depends upon whether the work involved is longshoring. Offshore submits the Board"s determination that the work is long-shoring is jurisdictional in nature and therefore the standard of review should be correctness.
[13] It is now well settled that the standard of review is to be determined according to a functional and pragmatic approach. The test is whether the question which the provision under consideration raises is one that was intended by Parliament to be left to the exclusive decision of the Board, subject to review only for patent unreasonableness. See Pasiechnyk v. Saskatchewan (Workers" Compensation Board), [1997] 2 S.C.R. 890, at paragraph 18, and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paragraphs 26 to 28. The factors to be taken into account in the functional and pragmatic approach, among others, are the presence or absence of a privative clause, expertise of the tribunal, the purpose of the Act as a whole and the provision in particular, and whether the nature of the problem is one of fact or law and the generality of the proposition under consideration. (See Pushpanathan, supra, paragraphs 29-38.)
[14] It is now trite law that decisions of the Canada Labour Relations Board and its successor, the Canada Industrial Relations Board, are, in matters within their core expertise, to be granted substantial deference by the Courts. (See Canadian Broadcasting Corporation v. Canada (Labour Relations Board), [1995] 1 S.C.R. 157, Canada (Attorney General) v. P.S.A.C., [1993] 941 at 962-963. The Supreme Court has also cautioned that the Courts should not be aggressive as branding as jurisdictional, and therefore subject to broader curial overview, that which may be doubtfully so. (See I.L.W.U. v. Prince Rupert Grain Limited [1996] 2 S.C.R. 432 at 445-46.
[15] The question in this case is whether the work of Offshore employees at the Mobil dock should be considered longshoring. Application of the Board"s jurisdiction under section 34 of the Code will depend on this determination. In a sense, therefore, the question might be viewed as jurisdictional. On the other hand, every time a board makes a positive decision which involves the exercise of its jurisdiction, its decision might be branded as jurisdictional. The functional and pragmatic approach, I think, is intended, among other things, to guide the Courts in deciding whether decisions that may have a jurisdictional overtone or implication are, nonetheless, not to be subjected to review for correctness. This approach supersedes the inquiry formerly conducted by reviewing courts into whether the statutory provision in dispute was, in an abstract or acontextual sense, jurisdictional in nature.
[16] In the case of the Canada Industrial Relations Board, there is a broad privative clause in section 22 of the Code. As to the question of expertise, it has been found that the Board is a highly specialized type of administrative tribunal and that its members are experts in administering comprehensive labour statutes. In ILWU v. Prince Rupert Grain Limited, supra, Cory J. stated at page 446:
| It has often been very properly recognized that labour relations boards exemplify a highly specialized type of administrative tribunal. Their members are experts in administering comprehensive labour statutes which regulate the difficult and often volatile field of labour relations. Through their constant work in this sensitive area, labour boards develop the special experience, skill and understanding needed to resolve the complex problems of labour relations. |
The question of whether work is or is not longshoring has been dealt with by the Board on a number of occasions in the past. (See Halifax Offshore Terminal Services Limited (1987), 71 d.i. 157, Halifax Grain Elevators Limited (1989), 76 d.i. 157, Équipments Bellemare Limitée (1995), 197 d.i. 84, M & M Manufacturing Ltd. (1997), 104 d.i. 45.) I have no doubt that the Board not only has expertise but experience in deciding whether work is longshoring in any given case.
[17] Although interpretation of the term longshoring is involved, the Board"s determination as to whether work is longshoring is largely based on the facts and circumstances of a given case. Its determination in this case does not involve the establishment of a highly generalized proposition of law about the meaning of longshoring in section 34 that might be more appropriately assigned to the Courts.
[18] I am therefore satisfied that the question of whether the work of Offshore employees at the Mobil dock is or is not longshoring is one that Parliament intended be left to the Board, even though such determination affects whether section 34 of the Code applies. Because of the presence of a privative clause and having regard to the expertise of the Board, the reasonableness simpliciter standard is not applicable. The standard of review is patent unreasonableness.
Longshoring: the Board"s decision
[19] The Board wrote a 25-page decision, extensively reviewing the circumstances. It found that loading and unloading of vessels chartered to Mobil at the Port of Halifax was carried out by Offshore employees. It reviewed the contractual arrangements under which these services were provided to Mobil.
[20] The issue of whether the work of the Offshore employees at the Mobil dock was or was not longshoring in large measure comes down to whether the finding in a prior Canada Labour Relations Board decision in Halifax Offshore Terminal Services Limited et al., supra, the Checkers case, was applicable in the circumstances here. In the Checkers case, the Board dismissed an application by the Checkers" Union to include in its geographical certification at Halifax, work related to the checking of cargoes.
[21] The Board assessed the evidence in this case, some of which was similar to the evidence in the Checkers case and some of which was not. In determining whether section 34 applied, the Board characterized the issue as whether the work should be classified in its longshoring or in its oil and gas aspect. The Board noted that in the Checkers case, the work was ancillary to loading and unloading while here the work was the function of loading and unloading itself. At paragraph 53 it stated:
| [53] The oil and gas exploration support aspect was given predominance by the CLRB in the Checkers case. However, it should be recalled that the work primarily and actually before the Board in that case was the ancillary work of checking in support of the loading and unloading of ships and not the function of loading and unloading as such. In the present circumstances, where the loading and unloading of ships are an integral part of the work, it is more difficult to draw the conclusion that the longshoring component should be viewed as incidental and ancillary. In the view of this Board, the corporate arrangements and the purposes of the Canada Labour Code must also be very carefully considered. The question must be carefully asked whether, in classifying the work here, its longshoring aspect or its oil and gas aspect should be given prominence. |
[22] At paragraphs 62 and 68 the Board distinguished the present case from that of Checkers, primarily on the basis that the activities of the employees are not, as in Checkers, incidentally related to longshoring, but are the essence of longshoring and that Offshore is more of an individual entity, vis-à-vis Mobil, than was the employer in the Checkers case, which the Board there viewed as an integral part of Mobil.
| [62] Given the above decisions, it is helpful to consider the basic nature of the matter presently in issue. In the present circumstances, as distinguished from the Cargill case and the Checkers matter, it is clear beyond dispute that the activities of the employees are not incidentally related to longshoring but are the essence of longshoring. The longshoring activities of Offshore employees are not an incidental or occasional part of their work. The evidence indicates that approximately 25% of the work of this employee group is carried out at the Mobil dock and a large part is longshoring work or very closely related to it. The longshoring aspect occurs regularly and substantially and not incidentally and occasionally. The loading and unloading of the chartered vessels is a regular and ongoing activity. Offshore is clearly an essential link in a system which undertakes the marine transport of goods on a regular and ongoing basis. |
| [68] In the Checkers decision, East Coast was viewed by the Board as an integral part of Mobil. Here, while there are similarities between the situation of Offshore and East Coast, on careful review, Offshore appears to be more of an individual entity than East Coast was on the basis of the evidence cited by Vice-Chairperson Jamieson in the Checkers case. |
[23] At paragraph 71, the Board concluded that the Offshore employees in question were actively engaged in longshoring:
| [71] ... A key question will be whether the employees in question are actively engaged in longshoring. They are here. Parliament intended that certification in the longshoring industry should be more inclusive and not less so in order to prevent the disruption of port operations. The operation here, to a significant extent, is longshoring, the direct operation of loading and unloading ships. The operation is severed from the oil exploration business in its corporate organization and is severable in a labour relations sense. It occurs frequently and regularly. It serves a number of clients. In all of the circumstances, it is most appropriate that Offshore"s present structure and longshoring operations be reflected by requiring that Offshore be included in the Port of Halifax geographic certification. |
Offshore"s arguments that the Board"s decision was patently unreasonable
[24] Offshore says that the shipping involved is not commercial shipping but is only providing a service for the Mobil offshore drilling activity. Further, it says that only 25% of the work performed by its employees is at the dock and 75% is at the pipeyard. These arguments are made to distinguish Offshore from other employers who service commercial shipping and whose employees are more extensively engaged in loading and unloading. However, it is plain from its reasons that the Board was aware of and considered these points. To the Board, the loading and unloading was not an incidental or occasional part of the work of the Offshore employees. Nor was commercial shipping considered an essential ingredient for a finding that the employees are engaged in longshoring activities. Such conclusions cannot be said to be irrational.
[25] Offshore extracted from the Board"s decision a few sentences that it says constitute errors in the approach of the Board. For example, it challenges the Board"s view that "Parliament intended that certification in the longshoring industry should be more inclusive and not less so in order to prevent the disruption of port operations". Indeed, there is some indication in the cases that section 34 is to be used "sparingly" as it affects the freedom of association protected under paragraph 2(d) of the Charter of Rights and Freedoms . See the Board decision in Longshoremen"s Protective Union Local 1953 v. St. John"s Shipping Association (1983), 3 C.L.R.B.R. (N.S.) 314.
[26] Whether or not this panel"s view is inconsistent with the panel"s view in St. John"s Shipping need not be analysed here. The determination here was largely factual. On a consideration of the facts, Offshore"s activities at the Port of Halifax were found to constitute longshoring. The Court would be hard-pressed to say that the analysis conducted by the Board and its conclusion in this case were patently unreasonable because one or two isolated observations in its reasons may be questionable.
[27] Offshore says the Board was obliged to consider paragraph 2(d) of the Charter, the freedom of association, or in the context of this case, freedom from association. If the Union is successful, Offshore will be required to join with other longshoring employees at Halifax for purposes of collective bargaining. However, Offshore does not challenge the constitutionality of section 34 of the Code. Absent such a challenge, the Court must accept section 34 as valid legislation even though, on its face, and in some circumstances, it may operate to limit freedom from association.
[28] For all these reasons, I cannot accept Offshore"s argument that the Board"s decision that the loading and unloading carried on by Offshore employees was longshoring, was patently unreasonable.
WAS A DECISION BY THE CHAIRMAN ALONE IN VIOLATION OF THE CODE?
[29] I now turn to the argument that the Board acted in violation of the Code because its decision was rendered by the Chairman alone. In this case, the panel hearing the case constituted its Chairman Paul Lordon, and members Michael Eayrs and Edmund E. Tobin. Some time after the hearing but before the decision was rendered, Mr. Eayrs died. Thereafter Mr. Tobin withdrew from the file. The Chairman, Mr. Lordon, then continued alone and rendered the decision himself.
[30] The relevant provision is section 88 of An Act to Amend the Canada Labour Code (Part I) and the Corporations and Canada Labour Unions Returns Act, S.C. 1998, c. 26. Section 88 provides:
| 88. (1) Subject to subsection (2), any proceeding that the former Board was seized of on the day immediately proceeding the commencement day shall be transferred to and disposed of by the new Board in accordance with the new Act. |
88. (1) Sous réserve du paragraphe (2), les affaires don"t l"ancien Conseil était saisi la veille de la date de référence se poursuivent devant le nouveau Conseil qui en dispose selon la nouvelle loi. |
| (2) Any member of the former Board may, at the request of the Chairperson, continue to hear, consider or decide any matter that was before the member before the commencement day and in respect of which there was any proceeding in which they participated as a member. |
(2) Un membre de l"ancien Conseil peut, à la demande du président, continuer l"audition de toute affaire qui lui a été soumise avant la date de référence et a déjà fait l"objet d"une procédure à laquelle il a participé en sa qualité de membre. |
| (3) Where a member of a panel refuses to continue to hear, consider or decide any matter referred to in subsection (1), the chairperson of the panel may continue to hear, consider or decide the matter or the Chairperson may remove that matter from the panel and hear, consider or decide that matter or assign a Vice-Chairperson or a panel of the new Board to do so on any terms and conditions that the Chairperson may specify for the protection and preservation of the rights and interests of the parties. |
(3) En cas de refus d"un membre d"une formation de continuer l"audition d"une affaire visée au paragraphe (1), le président de la formation peut la continuer seul ou le président peut en dessaisir la formation et s"en charger lui-même ou la confier à un vice-président ou à une formation du nouveau Conseil selon les modalités et aux conditions qu"il fixe dans l"intérêt des parties. |
| (4) For the purposes of subsection (2), the members of the former Board shall exercise the powers of the new Board. |
(4) Pour l"application du paragraphe (2), les membres de l"ancien Conseil jouissent des pouvoirs du nouveau Conseil. |
| (5) The Chairperson of the new Board has supervision over and direction of the work of members of the former Board who exercise powers under subsection (4). |
(5) Dans l"exercice des pouvoirs mentionnés au paragraphe (4), les membres agissent sous l"autorité du président du nouveau Conseil. |
[31] Pursuant to section 2 of the amending Act, the Canada Labour Relations Board was replaced by the Canada Industrial Relations Board effective January 1, 1999. Under subsection 88(1), proceedings of which the former Board was seized were transferred to the new Board. Mr. Tobin"s withdrawal was, for purposes of subsection 88(3), a refusal by a member to continue to consider and decide a matter. Such refusal engaged subsection 88(3) which provided the Chairman of the panel, Mr. Lordon, with the authority to continue with the matter alone. Contrary to the applicant"s submission, Mr. Eayrs" death was irrelevant. Subsection 88(3) is engaged when one member of a panel refuses to continue. That was the situation when Mr. Tobin refused to consider and decide the matter. Mr. Lordon, as chairman of the panel, was in compliance with subsection 88(3) when he continued to consider and decide the matter alone.
BREACH OF NATURAL JUSTICE ARGUMENTS
[32] The breach of natural justice arguments of the applicant also cannot be accepted. First, Offshore argues that it was entitled to notice that the Board intended to change its policy and the law it established in Checkers. Offshore"s argument rests on the proposition that the Board in this case reversed its finding in Checkers . It did not do so. It distinguished Checkers. The Board dealt extensively with the evidence and argument advanced by both sides on whether this case was or was not the same as Checkers. There is no basis for a breach of natural justice argument on this account.
[33] Second, Offshore says that the Board decided the case on the basis of section 34 as amended on January 1, 1999, whereas the case was argued in November of 1998 on the basis of the unamended section 34. The amendment added to subsection 34(1) the words "actively engaged" to modify the nature of the employers in the longshoring industry included in section 34. However, nothing turns on this change for natural justice purposes.
[34] Once the amendment took effect on January 1, 1999, the Board was bound to apply that substantive law when it rendered its decision on June 9, 1999. This was not a matter of discretion. The Board could not apply the unamended section 34. Submissions from the parties could have made no difference. As to the interpretation of the amended subsection 34(1), nothing prevented Offshore, had it considered it important, from making submissions to the Board after January 1, 1999 as to the effect, if any, of the coming into force of the amendment. It chose not to do so. It cannot now be heard to complain of a breach of natural justice by the Board.
[35] The third natural justice argument is that the Board was obliged to provide Offshore with an opportunity to make submissions as to how the Board should proceed in view of the death of Mr. Eayrs and the withdrawal of Mr. Tobin. The common law natural justice point seems to be that parties are entitled to have decisions rendered by those who have heard the matter. See, for example, IWA v. Consolidated Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, at 329-330. Here, the chairman of the panel heard the matter and decided it. No common law natural justice issue arises.
[36] Nonetheless, subsection 88(3) of the Code does refer to the "protection and preservation of the rights and interests of the parties". These words suggest that Parliament envisioned that parties be given an opportunity to tell the Board how their rights and interests might be affected.
[37] However, on a closer reading of subsection 88(3), it appears that these words apply where the Chairperson of the Board removes a matter from the panel that has been hearing, considering or deciding it and has dealt with it himself or assigns it to a Vice-Chairperson or another panel. The rights and interests of the parties are not engaged when the chairperson of the panel that heard the matter continues with it alone on the refusal of a member to continue to hear, consider and decide it. Parliament appears to have concluded that the rights and interests of the parties to a fair hearing are not affected when, due to a refusal by a member to continue, the chairman continues alone. On the other hand, when a matter is withdrawn from a panel, in mid-stream so to speak, and others take over to hear, consider or decide it, questions involving the rights and interests of the parties may arise. One obvious example would be where witnesses have testified before the first panel and whether they should re-testify before a new panel or whether their prior testimony and cross-examination should be taken into account by the new panel. This involves the rights and interests to which Parliament referred in subsection 88(3).
[38] In the circumstances here, there was no obligation on the Board, upon subsection 88(3) being engaged by the refusal of Mr. Tobin to continue, to notify the parties that the chairman would proceed to deal with the matter alone.
CONSTITUTIONAL ARGUMENTS
[39] This leaves the matter of Offshore"s constitutional arguments. At the outset, it is important to observe that Offshore does not challenge the constitutional validity of any law and in particular, section 34 of the Canada Labour Code. Rather, the issue is whether, in a division of powers context, section 34 is applicable to Offshore"s activities at the Port of Halifax.
The Board"s decision
[40] Before the Board, the issue seems only to have been whether Offshore"s loading and unloading activities at the Port of Halifax constituted longshoring or conversely, whether such activities should be viewed as an incidental component of managing a supply base and providing management and support services to the offshore oil and gas industry. In the proceedings before the Board, it was implicit that if the Offshore activities are longshoring, they are subject to federal regulation and in particular section 34. At paragraph 42 of its reasons, the Board cites the words of Taschereau J. In Re the Validity of the Industrial Relations and Disputes Investigation Act (the Stevedores" case) [1955] S.C.R. 529, to explain why longshoring has been found to come under federal jurisdiction.
| [42] In Re Eastern Canada Stevedoring Company Limited, [1955] 3 S.C.R. 529, the Supreme Court of Canada considered the validity of the Industrial Relations and Disputes Investigation Act of Canada and its applicability to certain employees of Eastern Canada Stevedoring. The Court found that the legislation in question was valid federal legislation supported by the provisions of section 91(10) of the British North America Act, giving the Parliament of Canada exclusive jurisdiction on navigation and shipping. The words of Taschereau, J., in that decision are helpful in the present context. |
| Generally, I think that the Industrial Relations and Disputes Investigation Act may be justified by head (10) of s. 91 of the British North America Act, which gives to the Parliament of Canada exclusive jurisdiction on Navigation and Shipping. Regulation of employment of stevedores is, I believe, an essential part of navigation and shipping and is essentially connected with the carrying on of the transportation by ship. Even if incidentally the law may affect provincial rights, it is nevertheless valid if it is, as I think, in relation to a subject within the federal legislative power under s. 91. |
| As it was said by Viscount Haldane in The City of Montreal v. Montreal Harbour Commissioners: "Now, there is no doubt that the power to control navigation and shipping conferred on the Dominion by s. 91 is to be widely construed", and he further adds: "The terms on which these powers are given are so wide, as to be capable of allowing the Dominion Parliament to restrict very seriously the exercise of proprietary rights." (Page 541) |
[41] The Board stated at paragraph 43 of its reasons that the Stevedores" case makes it clear that if the employment of stevedores in connection with navigation and shipping is under consideration, a valid federal law to regulate such employment may be enacted.
[42] However, the Board recognized that it was possible to view the loading and unloading of vessels at a port in either its longshoring aspect as related to navigation and shipping or in its role in support of the offshore oil and gas industry. At paragraph 53 it stated:
| [53] it should be noted at this point that the characterization of the activities of the employees depends to an extent upon the aspect from which the work is viewed. From one perspective, it is clear that work may be viewed as longshoring work related to navigation and shipping and therefore falling within section 91(10) of the Constitution Act 1867. This was the view taken in the Eastern Canada Stevedoring case. As the work falls less directly within the traditional definition of longshoring and becomes more incidentally related to it, as occurred in the Cargill decision, although the work involves longshoring to a certain extent, it may be viewed in its industrial setting. The oil and gas exploration support aspect was given predominance by the CLRB in the Checkers case. However, it should be recalled that the work primarily and actually before the Board in that case was the ancillary work of checking in support of the loading and unloading of ships and not the function of loading and unloading as such. In the present circumstances, where the loading and unloading of ships are an integral part of the work, it is more difficult to draw the conclusion that the longshoring component should be viewed as incidental and ancillary. In the view of this Board, the corporate arrangements and the purposes of the Canada Labour Code must be very carefully considered. The question must be carefully asked whether, in classifying the work here, its longshoring aspect or its oil and gas aspect should be given prominence. |
[43] The Board then considered what to take into account in determining how to classify the work in question. At paragraphs 55 and 56, it observed that application of section 34 was less appropriate where the work did not fall squarely within the definition of longshoring, i.e. the loading and unloading of ships.
| [55] An examination of the Eastern Stevedoring case together with the Cargill Grain decision shows that where this balancing has occurred, the application of the federal legislation appears to have been less appropriate where the work performed did not fall squarely within the definition of longshoring. In the Cargill case, the employees involved were considered to be engaged in their work after the loading and unloading of the ships had been completed and were seen to be only very incidentally engaged in activity related to longshoring. |
| [56] In the Checkers case, the activities did not fall squarely within the notion of longshoring defined as the loading and unloading of ships. It was also a consideration that longshoring duties, if any, were carried out a very small percentage of the time and formed a very small proportion of the overall operations. In the Checkers" case, because of these factors the Board viewed the work of East Coast as an element of the overall work performed by Mobil. |
[44] In concluding that the work in question was longshoring, the Board made the following findings:
| 1. The activities of the Offshore employees at the Mobil dock are not incidentally related to longshoring but are the essence of longshoring. |
| 2. The longshoring activities are not an incidental or occasional part of the work of Offshore employees. |
| 3. The longshoring work occurs regularly and substantially and is an ongoing activity. |
| 4. Shipping is a continuous and integral part of the operations in question. |
| 5. The Offshore employees are engaged on an ongoing basis in navigation and shipping within the definition of that term in the Stevedores" case. |
| 6. While the shipping here is not general commercial shipping, the employees are those of Offshore and not of Mobil and are paid and are instructed by Offshore. |
| 7. Offshore"s activities are severable from those of Mobil and its activities at the port are severable from its other logistical, preparatory and organizational work. The work at the dock is primarily directed to the objective of the marine transportation of the goods being shipped. |
[45] The Board concluded that Offshore"s activities were, to a significant extent, longshoring, that is, the loading and unloading of ships. As a result, section 34 of the Canada Labour Code was found by the Board to be applicable to the loading and unloading work at the Mobil dock.
The Intraprovincial Shipping Argument
[46] Offshore"s first constitutional argument was not argued before the Board and was raised for the first time in this Court. In this argument, Offshore says that longshoring is only subject to federal jurisdiction when the relevant shipping is interprovincial or international. Here, it is argued that the vessels which are loaded and unloaded by Offshore are not engaged in commercial shipping; rather, they are chartered to Mobil and move exclusively between Halifax and the offshore drilling sites near Sable Island. Offshore says this shipping is wholly within Nova Scotia, is subject to provincial legislative authority and by extension, Offshore"s longshoring activity is therefore subject to exclusive provincial legislative authority and not section 34 of the Canada Labour Code .
[47] Subsection 91(10) of the Constitution Act, 1867 provides that the Parliament of Canada has exclusive legislative authority over Navigation and Shipping. However, under paragraph 92(10)(a), a province may exclusively make laws in relation to:
| 10. Local Works and Undertakings other than such as are of the following Classes: " a. Lines of Steam or other Ships, Railways, Canals, telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province: |
10. Les travaux et entreprises d'une nature locale, autres que ceux énumérés dans les catégories suivantes: a. Lignes de bateaux à vapeur ou autres bâtiments, chemins de fer, canaux, télégraphes et autres travaux et entreprises reliant la province à une autre ou à d'autres provinces, ou s'étendant au-delà des limites de la province; |
[48] Offshore says that shipping that is not interprovincial or international is a local work or undertaking and therefore the longshoring connected to it is also under provincial jurisdiction.
[49] Dicta in the Stevedores" case supports the view that shipping within the limits of a province is under provincial jurisdiction.
| "... in some particulars a provincial legislature has jurisdiction over ferries or ships plying only between points within the limits of the province, ..."(Per Kerwin C.J.C. at page 535) |
| "This however, cannot be construed as excluding the provincial jurisdiction over certain matters, as for instance inland shipping, which is not always of federal concern." (Per Taschereau J. at page 542) |
| It seems clear that the loading and unloading of ships (often referred to as stevedoring when done by men who are not members of the ship"s crew) is an essential part of the transportation of goods by water. As such, in my opinion, it comes within the exclusive legislative authority of Parliament under head 10 of s. 91 of the British North America Act "Navigation and Shipping", which term, as Viscount Haldane said in the Montreal Harbour Commissioners Case (1), is to be widely construed. I should add, however, that in my view, except in such aspects as may relate to the navigation of the vessel, the combined effect of heads 10, 13 and 29 of s. 91 and head 10 of s. 92 is to exclude from federal jurisdiction shipping which is purely local in character such as a ferry or a line of ships operating wholly within the limits of one province. (Per Abbott J. at page 591) (1) [1926] A.C. 299 at 312. |
In Agence Maritime Inc. v. Conseil Canadien des Relations Ouvrières, [1969] S.C.R. 851, Fauteux J. stated at page 728:
| I cannot see how leaving the inland waters to travel from one point to another in the same Province constitutes going beyond the boundaries of that Province, within the meaning of s. 92(10) of the British North America Act, and of s. 53(c) of the Industrial Disputes Act. |
| We must therefore hold that, as the record is presently constituted, the appellant"s maritime operations are intraprovincial ones. |
| . . . |
| I am of the opinion, that in a case of the type presently before us, and, except in so far as the shipping aspect of the matter is concerned, the provisions of s. 91(29) and s. 92(10)(a) and (b) are collectively intended to exclude from the jurisdiction of Parliament maritime shipping undertakings whose operations are carried on entirely within the boundaries of a single Province. |
The indication is that stevedoring or longshoring related to shipping wholly within the limits of one province is not subject to section 34 of the Canada Labour Code.
[50] As I stated earlier, this was not an issue raised before the Board. Nor was a notice of constitutional question issued by Offshore pursuant to subsection 57(1) of the Federal Court Act R.S.C. 1985, c. F-7. Subsection 57(1) provides:
| 57. (1) Where the constitutional validity, applicability or operability of an Act of Parliament or of the legislature of any province, or of regulations thereunder, is in question before the Court or a federal board, commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shall not be adjudged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorney general of each province in accordance with subsection (2). |
57. (1) Les lois fédérales ou provinciales ou leurs textes d'application, dont la validité, l'applicabilité ou l'effet, sur le plan constitutionnel, est en cause devant la Cour ou un office fédéral, sauf s'il s'agit d'un tribunal militaire au sens de la Loi sur la défense nationale, ne peuvent être déclarés invalides, inapplicables ou sans effet, à moins que le procureur général du Canada et ceux des provinces n'aient été avisés conformément au paragraphe (2). |
[51] Further, the respondent Union submits that had this constitutional issue been raised before the Board, the Union would have adduced factual evidence that it says is relevant to the issue to demonstrate that the shipping involved is subject to federal jurisdiction. The Union says that regulatory obligations, offshore agreements and the regulation of safety are examples of matters that it would have addressed in evidence to demonstrate this conclusion.
[52] The issue of the territorial limits of Nova Scotia in the waters contiguous to its land mass is a complex question with far-reaching implications. In Constitutional Law of Canada, Loose-leaf Edition (Toronto: Carswell, 1997), Professor Hogg identifies some of the issues at page 13-5:
| A threshold question concerns the territorial limits of the province. Obviously, these are defined by the boundaries of the province.2 |
| With respect to coastal provinces, a question arises as to their jurisdiction over offshore waters. If the definition of a province"s boundaries explicitly includes some portion of the offshore, then of course that area is within the province. If the definition of a province"s boundaries is not explicit on the point, the general rule is that the territory of the province ends at the low-water mark. The only exceptions are "inland waters", such as harbours, bays, estuaries and other waters lying "between the jaws of the land"; these waters are within the province. The territorial sea and the high sea beyond (over the continental shelf) are outside the territory of the province. The coastal provinces therefore lack either ownership of the seabed (with its minerals) or legislative authority over the territorial sea and continental shelf. |
[53] In this case, some questions are:
| 1. Are there constitutional instruments that define the boundaries of Nova Scotia in its coastal waters? |
| 2. Are there judicial decisions that address the issue in respect of Nova Scotia? |
| 3. Is the general rule that the territory of the province ends at the low-water mark applicable? |
| 4. If so, where is the low-water mark in relation to the main land? |
| 5. Having regard to subsection 91(9) of the Constitution Act, 1867, conferring legislative jurisdiction on the Dominion in respect of Sable Island, is Sable Island within the territorial boundaries of Nova Scotia? |
| 6. If so, where is the low-water mark in relation to Sable Island? |
[54] Except in the most general terms, there is no evidence as to the exact location of the offshore drilling sites in relation to any low-water mark or the boundaries established by constitutional instruments or otherwise.
[55] Further, the argument of Offshore appears to be that shipping that is not interprovincial or international is a local work or undertaking. However, the words of paragraph 92(10)(a) exclude lines of steam or other ships, ... connecting the province with any other or others of the provinces, or extending beyond the Limits of the province. While the shipping may not be interprovincial or international as such, it may, if the drilling sites being serviced are not within the territorial limits of Nova Scotia, extend beyond the limits of the province. No argument has been presented on the issue.
[56] The respondent argues, with examples, that where a constitutional issue is not raised before the Board, no section 57 notice is issued in respect of the proceedings before the Board and there are obvious constitutional facts that are not in the record, it is prejudiced by reason of not having notice of the constitutional issue, it would be inappropriate for this Court, de novo, to purport to decide the issue. In Eaton v. Brant County Board of Education, [1997] 1 S.C.R. 241, Sopinka J. explained why it was essential for the Supreme Court to have the benefit of a record that is the result of a thorough examination of the constitutional issues in the court or tribunal from which the appeal arises. He stated at page 264:
| The purpose of s. 109 [of the Ontario Courts of Justice Act, which is substantially the same as section 57 of the Federal Court Act] is obvious. In our constitutional democracy, it is the elected representatives of the people who enact legislation. While the courts have been given the power to declare invalid laws that contravene the Charter and are not saved under s. 1, this is a power not to be exercised except after the fullest opportunity has been accorded to the government to support its validity. To strike down by default a law passed by and pursuant to the act of Parliament or the legislature would work a serious injustice not only to elected representatives who enacted it but to the people. Moreover, in this Court, which has the ultimate responsibility of determining whether an impugned law is constitutionally infirm, it is important that in making that decision, we have the benefit of a record that is the result of thorough examination of the constitutional issues in the courts or tribunal from which the appeals arise. |
[57] While the observations of Sopinka J. are with respect to the Charter and the Supreme Court, I think they are equally applicable to the issue of the constitutional division of powers and the Federal Court of Appeal. The essential purpose of judicial review is the review of decisions, not the determination de novo of questions that were not canvassed in the evidence and argument before the tribunal whose decision is under review. See Gitxsan Treaty Society v. Hospital Employees" Union, [2000] 1 F.C. 135, at paragraph 15.
[58] Offshore says that as provincial competence in labour relations is the rule and federal jurisdiction is the exception, the onus was on the Union, which was invoking the federal exception, to establish the constitutional facts necessary for the exception to come into play and that failing such a demonstration, exclusive provincial jurisdiction must govern. The onus may well be on the party seeking to invoke the federal exception to establish its applicability. However, that onus does not arise unless the party seeking to raise a constitutional question does so. Without expressing a view on whether section 57 of the Federal Court Act is mandatory in these circumstances, one salutary effect of a section 57 notice is, in addition to notifying the Attorneys General, of giving notice to opposing parties that there is a specific constitutional question in issue. Federal Court Form 69 requires that the material facts giving rise to the constitutional question be set out, as well as the concise legal basis for the constitutional question. The onus was on Offshore to raise the inapplicability of section 34 of the Canada Labour Code based on paragraph 92(10)(a) of the Constitution Act, 1867 if it wished to do so. It did so before this Court but did not do so before the Board.
[59] The result is that the matter was not in issue before the Board. Relevant evidence was not adduced. The Board did not pronounce upon the issue and now this Court, on the basis of an inadequate record and de novo, is asked to decide the issue. I think the observations of Dickson J. in Northern Telecom v. Communications Workers, [1981] S.C.R. 115, at 140, are apt here:
| Telecom did not raise the constitutional question before the Board, nor did Telecom there take the position that the Board lacked a prima facie basis of facts upon which it could conclude that it had jurisdiction. Absent any serious challenge to its jurisdiction, the Board dealt with this issue briefly and assumed jurisdiction. Telecom, by its actions, effectively deprived a reviewing Court of the necessary "constitutional facts" upon which to reach any valid conclusion on the constitutional issue. |
| After consideration of the full record in all its thirteen volumes, a record which the Court did not have available to it upon granting leave, I have concluded that this Court is in no position to give a definitive answer to the constitutional question raised. I think we must leave that question to another day and dismiss the appeal simply on the basis that the posture of the case is such that the appellant has failed to show reversible error on the part of the Canada Labour Relations Board. |
It would be inappropriate in the circumstances here for this Court to decide the constitutional question relating to intraprovincial shipping.
Offshore Oil and Gas Exploration
[60] Offshore then makes a series of constitutional arguments which it says are related to the offshore oil and gas exploration activities of Mobil. The arguments are premised on Offshore itself being subject to provincial labour jurisdiction unless it becomes subject to federal jurisdiction by reason of a connection with the offshore oil and gas undertaking for which its services have been retained by Mobil. Offshore first says that oil and gas exploration falls under provincial jurisdiction and therefore Offshore"s connection to this industry would not bring it under federal labour jurisdiction. A second argument is that even if oil and gas exploration is subject to federal jurisdiction, Offshore"s operations are not essential or integral to this undertaking. A third argument is that it was inappropriate for the Board to sever Offshore"s operations at the Mobil dock from its operations at the pipeyard, that the pith and substance of Offshore"s work is at the pipeyard and there was no evidence put before the Board to suggest that the pipeyard and dock operations could be severed. As the dock operations of Offshore could not be severed, the entirety of Offshore"s operation should continue to remain under provincial labour jurisdiction.
[61] As to oil and gas exploration being subject to provincial rather than federal legislative jurisdiction, as noted earlier, no section 57 notice was issued in respect of proceedings before the Board. Offshore concedes that "Parliament has the residual jurisdiction over the right to explore and exploit natural resources off the shores of the provinces of Newfoundland and British Columbia", but says the issue has not been decided in respect of natural resources off the shores of Nova Scotia. Not only does there not appear to have been any argument on this issue before the Board, there was virtually no argument before this Court. This is a major constitutional issue. Constitutional facts to show that the circumstances with respect to Nova Scotia are the same or different from those with respect to Newfoundland and British Columbia are not before the Court. In such a factual and legal vacuum, as was the case with the intraprovincial shipping argument, it would be imprudent for the Court to attempt to decide this issue.
[62] The second argument is that Offshore"s operations are not essential or integral to the offshore exploration of oil and gas. However, the Supply Base Management Agreement between Offshore and Mobil states that Offshore will "provide all the services and equipment required to manage and operate a supply base located at Dartmouth, Nova Scotia for the Sable Offshore Energy Project. It seems obvious that offshore drilling cannot take place without the movement by vessel of supplies, materials and equipment between the mainland and the offshore drilling sites. The supplies, material and equipment are prepared and organized by Offshore at its pipeyard and are loaded and unloaded onto and from vessels at the Mobil dock. Whether or not one views the Offshore operation at the Mobil dock as longshoring connected to maritime transportation, the offshore drilling activity could not take place without the services of Offshore. Such services must be viewed as essential to the oil and gas exploration which they support.
[63] Nor can Offshore"s severance argument be accepted. The Union sought certification over Offshore"s operations at the Mobil dock but not at the pipeyard. It was implicit in the application that the Board was being called upon to sever, for labour relations purposes, the operations at the dock and the operations at the pipeyard.
[64] The Union presented to the Board a video tape of the Offshore operation at the Mobil dock. Its witnesses testified that the work performed by Offshore at the dock was substantially the same as longshoring work by members of the Union at other locations at Halifax harbour.
[65] On the evidence before it, the Board concluded that the work at the dock was different in context than the work at the pipeyard. At paragraph 67 of its reasons, the Board stated:
| [67] Offshore"s operations as a whole are severable from Mobil"s operations. The work at the dock is even more clearly severable. There is no doubt that if Offshore were to service other clients, there is nothing in the corporate organization or other arrangements, including the contractual arrangements under which the work is performed that would preclude such outside involvement. Offshore is a separate undertaking. Its work at the dock, which is the subject of this application, is similarly different in content from that of the pipeyard. While the pipeyard work may be viewed as logistical, preparatory and organizational, the work at the dock is primarily directed to the objective of the marine transportation of the goods being shipped. |
[66] Nothing in the argument before this Court suggests that the Board was incorrect in severing the Offshore operation at the Mobil dock from its operation at the pipeyard for labour relations purposes. Offshore argues that severance should only occur when the operations are not integrated in a functional or business sense and that the Board had no evidence to suggest that the operations at the dock and the pipeyard could be severed. However, there was evidence of the similarity of Offshore"s dock work with other longshoring work as contrasted with the work at the pipeyard. The Supply Base Management Agreement indicates the type of activity carried on at the dock, loading and unloading of vessels, and at the pipeyard, stuffing and de-stuffing of containers, engineering and construction activities and processing of documentation, etc.
[67] Given the severance implicit in the Union"s application, if there was evidence that indicated the operations of Offshore are integrated in a functional and business sense, such that it would be inappropriate to sever them for labour relations purposes, I think Offshore was the party that bore the responsibility of ensuring such evidence was put before the Board. After all, it is Offshore that knows its own business. In the absence of such evidence, I cannot say that the Board was incorrect in severing the Offshore dock activities from those at the pipeyard.
DISPOSITION
[68] The appeal will be dismissed with costs.
"Marshall Rothstein"
J.A.
I agree
A.M. Linden J.A.
I agree
B. Malone J.A.
__________________1The application originally included other employers as well as Offshore but during the proceedings before the Board, the other firms were struck.
2The boundaries of a province will be ascertained by reference to the instruments by which the province was initially created or defined, to the terms of union with Canada (where applicable), to any modifications of the boundaries after confederation under s. 3 of the Constitution Act, 1871 and to any judicial decisions on boundaries, e.g., Re Labrador Boundary [1927] 2 D.L.R. 401 (P.C.); Re Offshore Mineral Rights of B.C. [1967] S.C.R. 792; Re Strait of Georgia [1984] 1 S.C.R. 388.