Present: Lamer C.J.
and La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory and
Iacobucci JJ.
on appeal from the court of appeal for
ontario
Constitutional law ‑‑
Distribution of legislative powers ‑‑ Works for general advantage
of Canada ‑‑ Works and undertakings constructed for the production,
use and application of atomic energy declared to be works for the general
advantage of Canada ‑‑ Validity and effect of declaration ‑‑
Whether federal labour relations legislation applicable to employees working at
provincial nuclear electrical generating stations ‑‑ Constitution
Act, 1867, ss. 91(29) , 92(10) (c), 92A(1) (c) ‑‑ Atomic Energy
Control Act, R.S.C., 1985, c. A‑16 , preamble, s. 18 .
Constitutional law ‑‑
Distribution of legislative powers ‑‑ Peace, order and good
government ‑‑ Atomic energy ‑‑ Whether federal labour
relations legislation applicable to employees working at provincial nuclear
electrical generating stations ‑‑ Constitution Act, 1867,
s. 91 ‑‑ Atomic Energy Control Act, R.S.C., 1985, c. A‑16,
s. 18 .
Ontario Hydro, a
provincially owned corporation, produces electric power through electrical
generating stations, five of which are nuclear generating stations. These
stations fall within the ambit of s. 18 of the federal Atomic Energy
Control Act, which provides that all works and undertakings
"constructed for the production, use and application of atomic
energy" are works for the general advantage of Canada. Each of Ontario
Hydro's nuclear reactors is covered by a licence issued pursuant to regulations
made under the Act. The respondent Society applied for certification pursuant
to the Ontario Labour Relations Act as exclusive bargaining agent for a
unit of employees of Ontario Hydro, including those employed at the nuclear
plants. The respondent Coalition challenged the application on the ground that
the employees who worked at the nuclear generating stations fell within the
jurisdiction of the Canada Labour Code . The Coalition claimed that the
declaration in s. 18 of the Act, combined with ss. 91(29) and 92(10) (c)
of the Constitution Act, 1867 , brought Ontario Hydro's nuclear generating
stations within exclusive federal jurisdiction with respect to labour
relations. The Ontario Labour Relations Board found that it had no
jurisdiction to deal with the proposed unit since it included employees who
worked at the nuclear facilities and were governed by the Canada Labour Code .
The Ontario Divisional Court quashed the Board's decision. A majority of the
Ontario Court of Appeal set aside the judgment of the Divisional Court and
reinstated the Board's decision.
Held (Sopinka, Cory and Iacobucci JJ.
dissenting): The appeals should be dismissed. The Canada Labour
Code applies to employees of Ontario Hydro who are employed on or in
connection with those nuclear facilities that come under s. 18 of the Atomic
Energy Control Act.
Per La Forest, L'Heureux‑Dubé
and Gonthier JJ.: Section 92(10) (c) of the Constitution
Act, 1867 authorizes Parliament to declare local works to be for the
general advantage of Canada. When such a declaration is made, any work subject
to the declaration falls, by virtue of s. 91(29) , within the legislative
jurisdiction of Parliament as if such work was expressly enumerated in
s. 91 . The legislative jurisdiction conferred over a declared work refers
to the work as a going concern or functioning unit, which involves control over
its operation and management. Labour relations are vital parts of the
operation of a work and an integral part of Parliament's exclusive powers to
legislate in relation to declared works. A province has power by general
legislation to affect the operation of a declared work, but it cannot legislate
respecting that work qua work. Legislation governing labour relations
on such works is legislation in relation to that work and therefore falls
outside provincial legislative competence. The current goals of labour
relations have nothing to do with the source of the legislative power.
Finally, it is unnecessary to consider the possible difference in scope between
"undertakings" and "works" for the purposes of the various
items in s. 92(10) . A work under s. 92(10) (c) means a work as
a going concern, and to manage that going concern Parliament must have power to
regulate the labour relations between management and labour engaged in
operating the work. There is thus no logical or practical difference in the
need for control of the labour relations in the management of an undertaking
and in the management of a work.
The declaratory
power should not be narrowly construed to conform to theoretical principles of
federalism. The Constitution must be read as it is, and it expressly provides
for the transfer of provincial powers to the federal Parliament over works
declared to be for the general advantage of Canada. Further, in this case, the
preamble of the Atomic Energy Control Act does not restrict the federal
power to safety and security considerations only. While the preamble may set
forth the purpose for which Parliament declared works for the development of
atomic energy to be for the general advantage and may give at times some clue
as to what works were intended to be covered by the declaration, once a work
falls within the ambit of a declaration, the legislative power flowing
therefrom is governed by the Constitution.
Section 92A(1) (c)
in the Constitution Act, 1867 does not affect Parliament's authority to
legislate with respect to nuclear electrical generating stations.
Section 92(10) (c) extends to works created under other headings in
s. 92 , and s. 92A is not different in that respect. The danger to
provincial autonomy over the generation of electrical energy lay in the
possible transformation of these enterprises into purely federal undertakings
under s. 92(10) (a) by reason of their connection or extension
beyond the province. Section 92A ensures the management by the provinces,
including the regulation of labour relations, of the sites and facilities for
the generation and production of electrical energy that might otherwise be
threatened by s. 92(10) (a). But it was not meant to interfere with
the paramount power vested in Parliament by virtue of the declaratory power (or
for that matter Parliament's general power to legislate for the peace, order
and good government of Canada) over "[a]ll works and undertakings
constructed for the production, use and application of atomic energy".
Parliament's
exclusive jurisdiction over nuclear electrical generating stations is also
founded on its power to legislate over matters of national concern under the
peace, order and good government clause in s. 91 of the Constitution
Act, 1867 . There is no doubt that the production, use and application of
atomic energy constitute a matter of national concern, which is predominantly
extra‑provincial and international in character and implications, and
possesses sufficiently distinct and separate characteristics to make it subject
to Parliament's residual power. What was said in the context of a work subject
to the declaratory power applies equally to a work over which Parliament has
jurisdiction under its general power in relation to matters of national
concern. Labour relations are an integral part of that jurisdiction.
Ontario Hydro was
not immune from the operation of the Canada Labour Code on the basis
that it was a provincial instrumentality set up to advance provincial purposes.
Per Lamer C.J.: The federal
legislative jurisdiction over works such as nuclear generating stations,
whether it arises pursuant to Parliament's declaratory power under
s. 92(10) (c) of the Constitution Act, 1867 or pursuant to
Parliament's power under s. 91 of that Act to make laws for the peace,
order and good government of Canada (the "p.o.g.g." power), must be
carefully described to respect and give effect to the division of legislative
authority. Accordingly, Parliament's jurisdiction over a declared work must be
limited so as to respect the powers of the provincial legislatures while
remaining consistent with the appropriate recognition of the federal interests
involved. The p.o.g.g. power is similarly subject to balancing federal
principles, limiting in this case the p.o.g.g. jurisdiction to the national
concern aspects of atomic energy (namely, the fact of nuclear production and
its safety concerns).
The power to
regulate the labour relations of Ontario Hydro's employees involved in the
production of nuclear energy is an integral and essential part of Parliament's
declaratory and p.o.g.g. jurisdictions. Parliament's interest as set out in
the preamble of the Atomic Energy Control Act to control and supervise
the application and use of atomic energy reveals its interest in regulating
labour relations matters at nuclear facilities. This compelling interest is
made clear by the Act's regulations dealing with health, safety and security,
which include a strong employment and labour relations component, and by the
conditions of the licences. While none of the regulations seek to regulate the
collective bargaining process, or refer explicitly to terms or conditions which
must be included in collective agreements, the matters of concern to management
and labour in drafting and negotiating a collective agreement are reflected in
the regulations. The federal interest in the employees working on or in
connection with facilities for the production of nuclear energy extends where
those employees are unionized to the labour relations regime which governs the
relationship between the employer and the employees, through their bargaining agent.
On the international level, there is also a consistent recognition that
supervising employment on or in connection with facilities for the production
of nuclear energy is an integral part of assuring the safety of nuclear
facilities and materials.
Further,
Parliament's declaratory jurisdiction under s. 92(10) (c) extends
not only to the work but also to the integrated activity carried on therein.
No convincing distinction can be drawn between what is called the
"undertaking" of the work and the "integrated activities related
to" that work. The jurisdiction to regulate a work and its related
integrated activity prima facie includes jurisdiction to make laws
respecting its labour relations. Here, the employees involved in the
production of nuclear energy at Ontario Hydro's nuclear facilities clearly fall
within Parliament's jurisdiction over labour relations. Their "normal or
habitual activities" are intimately related to the federal interest in
nuclear energy, since the extent of the federal government's interest in
nuclear power production is its interest in health, safety and security,
matters completely within the daily control of those operating nuclear
facilities. The provincial trappings of Ontario Hydro's nuclear facilities
should not mask their essentially federal operational nature.
The federal
jurisdiction over labour relations does not apply to all Ontario Hydro's
employees. Only those actually employed on or in connection with facilities
for the production of nuclear energy are federally regulated. The others
remain under provincial jurisdiction pursuant to s. 92A(1) (c) of
the Constitution Act, 1867 .
Parliament is not
precluded from exercising its labour relations jurisdiction over Ontario Hydro
employees involved in the production of nuclear energy by the fact that the
province has exercised that jurisdiction for a long period. There is no
doctrine of laches in the context of constitutional division of powers.
Per Sopinka, Cory and Iacobucci JJ.
(dissenting): Parliament may, under its declaratory power, decide as a matter
of policy to withdraw a work or an undertaking linked to a work from what would
normally be provincial jurisdiction by declaring the work or undertaking to be
a work for the general advantage of Canada, or of two or more provinces.
Parliament's jurisdiction over a declared work, however, is not plenary and
extends only to those aspects of the work which are integral to the federal
interest in the work. This limit is consistent with the traditional approach
to division of powers. The Constitution Act, 1867 set up a federalist
system of government for Canada and should be interpreted so as not to allow
the powers of either Parliament or the provincial legislatures to subsume the
powers of the other. The federal declaratory power applies to works which fall
within any of the categories assigned to the provinces under ss. 92 and
92A of the Constitution Act, 1867 . Parliament did not give up its
declaratory power over nuclear electrical generating stations when s. 92A
was added to the Constitution in 1982.
While the valid
declaration in s. 18 of the Atomic Energy Control Act brought
Ontario Hydro's nuclear electrical generating stations as works within
Parliament's exclusive jurisdiction, control over labour relations at these
facilities is not integral to Parliament's effective regulation of its interest
in nuclear plants. The preamble to the Act provides a statement of the federal
interest in atomic energy and the parameters of that interest in the operations
of the nuclear electrical generating facilities. The federal interest in these
facilities is the fact of nuclear production and all its attendant safety,
health and security concerns. Nothing in the Act, the regulations or the
licences reveals any interest in labour relations. Labour relations
legislation is generally concerned with regulating the process of industrial
relations and aims at securing both industrial peace and better working
conditions for workers. The two potential labour relations concerns which
could impact on the safe operation of a nuclear plant ‑‑ staffing
and work stoppages ‑‑ are tempered by the conditions of the
licences issued under the Act. Moreover, if specific safety issues were of
concern to Parliament, it could legislate with respect to those issues under
its valid interest in safety flowing from its jurisdiction over the declared
works. This necessary trenching on provincial jurisdiction is more in harmony
with the principles of federalism than is the wholesale withdrawing of labour
relations from provincial jurisdiction. The conclusion that labour relations
is not integral to the exercise of federal jurisdiction is strengthened by
s. 92A of the Constitution Act, 1867 . This section expressly
provides for provincial jurisdiction over the management of electrical
generating sites, including those fuelled by nuclear reactors. Further,
Ontario Hydro as a whole is a provincial undertaking. Provincial control over
labour relations thus appears to be integral to provincial jurisdiction over
the nuclear electrical generating facilities. Finally, for the same reason
that labour relations of a federal undertaking must be regulated federally,
labour relations of a provincial undertaking should be regulated provincially.
Like its
jurisdiction under the declaratory power, Parliament's jurisdiction over atomic
energy under the national concern branch of the p.o.g.g. power is not plenary
and does not extend to the labour relations between Ontario Hydro and those of
its employees employed in the nuclear electrical generating stations. Absent
special circumstances, the same balancing principles of federalism apply to
both the p.o.g.g. power and the declaratory power. Federal control over labour
relations at Ontario Hydro's nuclear facilities is simply not required for the
exercise of Parliament's jurisdiction over atomic energy. The labour relations
at issue in this case are not part of the single, distinctive and indivisible
matter identified as atomic energy.
It follows that it
is the Ontario Labour Relations Act which constitutionally applies to
the labour relations between Ontario Hydro and those of its employees at its
nuclear electrical generating facilities. Had the Canada Labour Code
been applicable, however, Ontario Hydro would not have been immune from the
operation of federal labour legislation by virtue of interjurisdictional Crown
immunity.
Cases Cited
By La Forest J.
Applied: Bell Canada v. Quebec (Commission
de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749; referred
to: Commission du salaire minimum v. Bell Telephone Co. of Canada,
[1966] S.C.R. 767; Canadian National Railway Co. v. Courtois, [1988] 1
S.C.R. 868; Alltrans Express Ltd. v. British Columbia (Workers' Compensation
Board), [1988] 1 S.C.R. 897; City of Montreal v. Montreal Street Railway
Co., [1912] A.C. 333; Wilson v. Esquimalt and Nanaimo Railway Co.,
[1922] 1 A.C. 202; Canadian Pacific Railway Co. v. Corporation of the Parish
of Notre Dame de Bonsecours, [1899] A.C. 367; Chamney v. The Queen,
[1975] 2 S.C.R. 151; The Queen v. Thumlert (1959), 20 D.L.R. (2d) 335; Reference
re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529; Letter
Carriers' Union of Canada v. Canadian Union of Postal Workers, [1975] 1
S.C.R. 178; Reference re Legislative Jurisdiction over Hours of Labour,
[1925] S.C.R. 505; Re Canada Labour Code, [1992] 2 S.C.R. 50; Shur
Gain Division, Canada Packers Inc. v. National Automobile, Aerospace and
Agricultural Implement Workers Union of Canada, [1992] 2 F.C. 3; Reference
re Waters and Water‑Powers, [1929] S.C.R. 200; Luscar Collieries
Ltd. v. McDonald, [1925] S.C.R. 460; Reference re Disallowance and
Reservation, [1938] S.C.R. 71; Severn v. The Queen (1878), 2 S.C.R.
70; Reference re Resolution to Amend the Constitution, [1981] 1 S.C.R.
753; General Motors of Canada Ltd. v. City National Leasing, [1989] 1
S.C.R. 641; Attorney‑General for Ontario v. Winner, [1954] A.C.
541; R. v. Picard, Ex parte International Longshoremen's Association, Local
375 (1967), 65 D.L.R. (2d) 658; Northern Telecom Ltd. v. Communications
Workers of Canada, [1980] 1 S.C.R. 115; Reference re Bill 30, An
Act to amend the Education Act (Ont.), [1987] 1 S.C.R. 1148; Canadian
Industrial Gas & Oil Ltd. v. Government of Saskatchewan, [1978] 2
S.C.R. 545; Central Canada Potash Co. v. Government of Saskatchewan,
[1979] 1 S.C.R. 42; British Columbia Power Corp. v. Attorney‑General
of British Columbia (1963), 44 W.W.R. 65; Re Tank Truck Transport Ltd.
(1960), 25 D.L.R. (2d) 161 (H.C.), aff'd [1963] 1 O.R. 272 (C.A.); Reference
re Anti‑Inflation Act, [1976] 2 S.C.R. 373; R. v. Crown Zellerbach
Canada Ltd., [1988] 1 S.C.R. 401; Pronto Uranium Mines Ltd. v. Ontario
Labour Relations Board, [1956] O.R. 862; Denison Mines Ltd. v. Attorney‑General
of Canada, [1973] 1 O.R. 797; Friends of the Oldman River Society v.
Canada (Minister of Transport), [1992] 1 S.C.R. 3; Alberta Government
Telephones v. Canada (Canadian Radio‑television and Telecommunications
Commission), [1989] 2 S.C.R. 225.
By Lamer C.J.
Considered: Pronto Uranium Mines Ltd. v.
Ontario Labour Relations Board, [1956] O.R. 862; referred to: Bell
Canada v. Quebec (Commission de la santé et de la sécurité du travail),
[1988] 1 S.C.R. 749; Canadian National Railway Co. v. Courtois, [1988] 1
S.C.R. 868; Alltrans Express Ltd. v. British Columbia (Workers' Compensation
Board), [1988] 1 S.C.R. 897; Reference re Industrial Relations and
Disputes Investigation Act, [1955] S.C.R. 529; Northern Telecom Canada
Ltd. v. Communication Workers of Canada, [1983] 1 S.C.R. 733; Northern
Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115; R.
v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; Four B
Manufacturing Ltd. v. United Garment Workers of America, [1980] 1 S.C.R.
1031; Alberta Government Telephones v. Canadian Radio‑television and
Telecommunications Commission, [1985] 2 F.C. 472; Reference re Upper
Churchill Water Rights Reversion Act, [1984] 1 S.C.R. 297; Central
Canada Potash Co. v. Government of Saskatchewan, [1979] 1 S.C.R. 42.
By Iacobucci J.
(dissenting)
The King v. Eastern
Terminal Elevator Co.,
[1925] S.C.R. 434; Bell Canada v. Quebec (Commission de la santé et de la
sécurité du travail), [1988] 1 S.C.R. 749; Canadian National Railway Co.
v. Courtois, [1988] 1 S.C.R. 868; Alltrans Express Ltd. v. British
Columbia (Workers' Compensation Board), [1988] 1 S.C.R. 897; Commission
de transport de la Communauté urbaine de Québec v. Canada (National
Battlefields Commission), [1990] 2 S.C.R. 838; Reference re Waters and
Water‑Powers, [1929] S.C.R. 200; The Queen v. Thumlert (1959),
20 D.L.R. (2d) 335; Quebec Railway Light & Power Co. v. Town of Beauport,
[1945] S.C.R. 16; Commission du salaire minimum v. Bell Telephone Co. of
Canada, [1966] S.C.R. 767; Reference re Industrial Relations and
Disputes Investigation Act, [1955] S.C.R. 529; Chamney v. The Queen,
[1975] 2 S.C.R. 151; Shur Gain Division, Canada Packers Inc. v. National
Automobile, Aerospace and Agricultural Implement Workers Union of Canada,
[1992] 2 F.C. 3; General Motors of Canada Ltd. v. City National Leasing,
[1989] 1 S.C.R. 641; Reference re Resolution to Amend the Constitution,
[1981] 1 S.C.R. 753; R. v. Crown Zellerbach Canada Ltd., [1988] 1 S.C.R.
401; Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161; Citizens
Insurance Co. of Canada v. Parsons (1881), 7 App. Cas. 96; Re
B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486; Toronto Electric
Commissioners v. Snider, [1925] A.C. 396; Construction Montcalm Inc. v.
Minimum Wage Commission, [1979] 1 S.C.R. 754; Northern Telecom Ltd. v.
Communications Workers of Canada, [1980] 1 S.C.R. 115; Reference re Anti‑Inflation
Act, [1976] 2 S.C.R. 373; Pronto Uranium Mines Ltd. v. Ontario Labour
Relations Board, [1956] O.R. 862; Central Western Railway Corp. v.
U.T.U., [1989] 2 F.C. 186.
Statutes and
Regulations Cited
Act
to amend the Act incorporating "The Bell Telephone Company of Canada", S.C. 1882, c. 95, s. 4.
Atomic
Energy Control Act,
R.S.C., 1985, c. A‑16 , preamble, ss. 9 (b), 18 .
Atomic
Energy Control Regulations, C.R.C. 1978, c. 365, ss. 7(2), (3), 8, 9(2), 11(1), 13(1),
17, 27, 28.
Bell
Canada Act, S.C.
1987, c. 19, s. 5 .
Canada
Labour Code, R.S.C.,
1985, c. L‑2, ss. 2 "federal work, undertaking or business",
2(h), 4.
Cape
Breton Development Corporation Act, R.S.C., 1985, c. C‑25, s. 35 .
Constitution
Act, 1867,
ss. 55 , 56 , 57 , 90 , 91 , 91(29) , 92(10) , (13) , (16) , 92A(1) (c), (6) .
Constitution
Act, 1982,
s. 50 .
Labour
Relations Act, R.S.O.
1980, c. 228.
Labour
Relations Act, R.S.O.
1990, c. L.2.
Power
Corporation Act,
R.S.O. 1990, c. P.18.
Treaty
on the Non‑Proliferation of Nuclear Weapons, Can. T.S. 1970 No. 1, Art. III.
Authors Cited
Adams,
George W. Canadian Labour Law, 2nd ed. Aurora, Ont.: Canada Law
Book, 1993 (loose‑leaf).
Beatty,
David M. Putting the Charter to Work: Designing a Constitutional
Labour Code. Kingston: McGill‑Queen's University Press, 1987.
Brun,
Henri, et Guy Tremblay. Droit constitutionnel, 2e éd.
Cowansville: Yvon Blais, 1990.
Cairns,
Robert D., Marsha A. Chandler and William D. Moull.
"Constitutional Change and the Private Sector: The Case of the Resource
Amendment" (1986), 24 Osgoode Hall L.J. 299.
Csik, B. J.
"International Guidance on the Qualifications of Nuclear Power Plant
Operations Personnel". In Operational Safety of Nuclear Power Plants,
vol. II. Vienna: International Atomic Energy, 1984, 315.
Hanssen,
Kenneth. "The Federal Declaratory Power Under the British North America
Act" (1968‑69), 3 Man. L.J. 87.
Hogg,
Peter W. Constitutional Law of Canada, vol. 1, 3rd ed.
(Supplemented). Scarborough, Ont.: Carswell, 1992 (loose‑leaf).
Hogg,
Peter W. "The Charter of Rights and American Theories of Interpretation"
(1987), 25 Osgoode Hall L.J. 87.
IAEA
Yearbook 1992.
Vienna: International Atomic Energy Agency, 1992.
La Forest,
Gérard V., and Associates. Water Law in Canada: The Atlantic
Provinces. Ottawa: Information Canada, 1973.
Lajoie,
Andrée. Le pouvoir déclaratoire du Parlement: Augmentation discrétionnaire
de la compétence fédérale au Canada. Montréal: Presses de l'Université de
Montréal, 1969.
Laskin's
Canadian Constitutional Law, vol. 1, 5th ed. By Neil Finkelstein. Toronto: Carswell,
1986.
Moull,
William D. "The Legal Effect of the Resource Amendment ‑‑
What's New in Section 92A ". In J. Peter Meekison, Roy J.
Romanow and William D. Moull, Origins and Meaning of Section 92A :
The 1982 Constitutional Amendment on Resources. Montréal: Institute for
Research on Public Policy, 1985, 33.
APPEALS from a
judgment of the Ontario Court of Appeal (1991), 1 O.R. (3d) 737, 43 O.A.C. 184,
77 D.L.R. (4th) 277, 91 CLLC {PP} 14,014, setting aside a judgment of the
Divisional Court (1989), 69 O.R. (2d) 268, 33 O.A.C. 302, 60 D.L.R. (4th) 542,
89 CLLC {PP} 14,044, quashing a decision of the Ontario Labour Relations Board,
[1988] OLRB Rep. Feb. 187. Appeals dismissed, Sopinka, Cory and
Iacobucci JJ. dissenting.
Neil Finkelstein, Jeffrey W. Galway and George
Vegh, for Ontario Hydro.
R. Ross Wells and Christopher M. Dassios,
for CUPE ‑‑ C.L.C. Ontario Hydro Employees Union, Local 1000.
Kathleen A.
MacDonald, for the
respondent the Ontario Labour Relations Board.
Paul J. J.
Cavalluzzo, for the
respondent Society of Ontario Hydro Professional and Administrative Employees.
Eric A. Bowie, Q.C., Lewis E. Levy,
Q.C., and Roslyn J. Levine, for the respondent the Attorney
General of Canada.
M. Philip
Tunley and John
Terry, for the intervener the Attorney General for Ontario.
Alain Gingras and André Couture, for the
intervener the Attorney General of Quebec.
Bruce Judah, for the intervener the Attorney
General for New Brunswick.
The following are
the reasons delivered by
Lamer
C.J. --
I. Introduction
I have read with
interest the thorough and thoughtful reasons of my colleague, Justice
Iacobucci, and although I agree with much of his analysis of the law applicable
to these appeals, I cannot, with respect, agree with his disposition of these
appeals. Although there are two appeals before the Court, they are in
substance one, and I shall refer to the proceedings herein as "the
appeal".
I agree with
Iacobucci J. that Parliament's legislative jurisdiction over works such as
nuclear generating stations, whether it arises pursuant to a declaration under
s. 92(10) (c) of the Constitution Act, 1867 , or pursuant to
Parliament's power under s. 91 of that Act to make laws for the peace, order
and good government of Canada (the "p.o.g.g." power), is not
"plenary". Rather, federal jurisdiction over such works must be
carefully described to respect and give effect to the division of legislative
authority on which our federal constitutional scheme is based. Under s.
92(10)(c), I fully agree with Iacobucci J. that "Parliament's
jurisdiction over a declared work must be limited so as to respect the powers
of the provincial legislatures but consistent with the appropriate recognition
of the federal interests involved" (p. 404). The p.o.g.g. power is
similarly subject to balancing federal principles, limiting the federal
government's p.o.g.g. jurisdiction to "the national concern aspects of atomic
energy . . . namely the fact of nuclear production and its safety
concerns" (p. 425).
However, I cannot
agree with Iacobucci J.'s assessment of how this balance ought to be struck;
specifically, I am of the view that the power to regulate the labour relations
of those employed on or in connection with facilities for the production of
nuclear energy is integral to Parliament's declaratory and p.o.g.g.
jurisdictions. I reach this conclusion through an examination of the national
and international regulatory framework applicable to the production of nuclear
energy, previous decisions of this and other courts respecting constitutional
jurisdiction over labour relations, and the effect of s. 92A(1) (c) of
the Constitution Act, 1867 .
II. Analysis
A. Regulatory Framework
(a) The Atomic
Energy Control Act
The production of
nuclear energy in Canada is regulated by legislation (the Atomic Energy
Control Act, R.S.C., 1985, c. A-16 (the "AECA ")),
regulations made under that Act, and licences granted by the Atomic Energy
Control Board pursuant to that Act and the regulations.
The declaration in
s. 18 AECA , that "[a]ll works and undertakings constructed (a)
for the production, use and application of atomic energy ... are, and each of
them is declared to be, works or a work for the general advantage of
Canada" is the primary indication of Parliament's interest in the
production of atomic energy. The scope of that interest is suggested by the
preamble to the AECA , which states:
Whereas it is essential in the national interest to make
provision for the control and supervision of the development, application and
use of atomic energy and to enable Canada to participate effectively in
measures of international control of atomic energy that may hereafter be agreed
on;
I cannot, with
respect, agree that the preamble does not reveal a federal interest in
regulating labour relations. Rather, I think that stating Parliament's
interest in the "control and supervision of the . . . application and use
of atomic energy" directly implicates regulation of the activities
involved in that application and use, which in turn involves the regulation of
those employed in producing nuclear power. In fact, Iacobucci J. agrees at p.
416 that "the uniquely federal aspect of Ontario Hydro's nuclear
electrical generating stations is the fact of nuclear production, with
all its attendant safety, health and security concerns" (emphasis added).
With respect, I believe that all of the concerns attendant on the production of
nuclear energy arise in the regulation of labour relations at nuclear
production facilities, as is shown by the way in which the general content of
the preamble is particularized in the AECA and its regulations.
As the discussion
below of the regulations made under the AECA makes clear, the Atomic
Energy Control Board is given broad regulation-making power, through which the
production of nuclear energy is primarily controlled and supervised. Section
9 (b) AECA , for example, allows the Board to make regulations
"for developing, controlling, supervising and licensing the production,
application and use of atomic energy". It is through this
regulation-making power that the Board has made clear the federal government's
interest in labour relations matters affecting nuclear energy, and to which I
shall now turn.
(b) The Atomic
Energy Control Regulations
The Atomic
Energy Control Regulations, C.R.C. 1978, c. 365, evince a strong federal
interest in the employment of the men and women who operate Ontario Hydro's
nuclear production facilities. Although none of the provisions seek to
regulate the collective bargaining process, or refer explicitly to terms or
conditions which must be included in collective agreements covering such
workers, the regulations do show in a more general way that Parliament's
interest in health, safety and security at nuclear production facilities is in
large part an interest in the employment of those persons who operate such
facilities.
An application made
to the Atomic Energy Control Board, under s. 7(2) in Part I of the regulations,
for a licence to, inter alia, use any prescribed substance must, if the
Board so requires, set out "(g) a description of the qualifications,
training and experience of any person who is to use the prescribed
substance". The licence granted by the Board may include conditions
respecting measures to be taken to protect against excessive doses of radiation
(s. 7(3)(a)), instruction to be given to workers respecting radiation
hazards and procedures (s. 7(3)(c)), measures to be taken against theft,
loss or unauthorized use of prescribed substances (s. 7(3)(f)), and the
qualifications, training and experience of anyone who is to use or supervise
the use of prescribed substances (s. 7(3)(g)).
Similar provisions
govern the licensing procedure for operating a nuclear facility described in
Part II of the regulations.
Where a licence has
been issued, records must be kept of the names of all persons involved in the
use and handling of prescribed substances, doses of radiation received by any
person, and medical examinations required under the regulations (Part III, s.
11(1)).
Part IV of the
regulations concerns security, and prohibits unauthorized disclosure of various
types of information about prescribed substances and nuclear facilities (s.
13(1)). Furthermore, the Board may designate "protected places" for
secrecy into which unauthorized persons may not enter.
Part V of the
regulations concerns health and safety, and s. 17 requires radiation dosage
notification and examination procedures for atomic radiation workers, as well
as prohibiting some persons from working as atomic radiation workers. Indeed,
Part V is almost exclusively concerned with employees at nuclear facilities
such as Ontario Hydro's.
Part VI, the
general part of the regulations, imposes several employment-related obligations
on licensees, including providing appropriate safety equipment and clothing,
and providing adequate warning to any person (which would include employees)
who may be affected by an escape of radioactive material. Employees are under
similar obligations to observe safety procedures and use safety equipment and
clothing.
I think that it can
be foreseen how these stringent and detailed obligations of licensees such as
Ontario Hydro might be reflected in collective agreements between the
management and employees of nuclear facilities, especially where dosage
monitoring, notification, and protection are concerned. The various
restrictions on who may be employed at the facility might be incorporated into
the collective agreement. The Atomic Energy Control Board's training and
experience requirements might influence the negotiation and drafting of promotion
and seniority clauses. An employee's failure to use the required safety
equipment, or to observe required safety procedures, could be the subject of
discipline governed by the collective agreement. The labour relations board
might have to distinguish between a legitimate plant shut-down and an illegal
lock-out during a labour dispute. The requirement that the collective
agreement conform to the regulatory requirements of the statute, regulations
and licence might be relevant to proceedings to determine whether the parties
were bargaining in good faith. Other examples of the mutual concerns in the
regulations and most collective agreements are not difficult to anticipate.
I draw these
parallels not to suggest that the regulations will dictate the substantive
content of collective agreements for those employed on or in connection with
nuclear energy production facilities, but rather to show that the matters of
concern to management and labour in drafting and negotiating a collective
agreement are reflected in the regulations, and that the interests in both
cases are quite similar. As is the case with the AECA , Parliament's
regulation of nuclear facilities, under the concerns of health, safety and
security, includes a strong employment and labour relations component.
(c) Licences
One of the licences
described in the AECA and the regulations has been put before this Court
(Reactor Operating Licence No. 10/86, for the Bruce Nuclear Generating Station
"A").
Article A.A.3 sets
out detailed staffing requirements, including written Atomic Energy Control
Board approval of certain employees, minimum staffing requirements, and notice
of staffing changes. Article A.A.19 requires the prompt reporting of any
attempted or actual breaches of security, threats or sabotage (sub-article
(iv)), and of "actual or impending instances of industrial disputes or
civil demonstrations which could affect the safety or security of the nuclear
facility" (sub-article (v)), and "any event which constitutes or reveals
a violation of the conditions of this licence, the Physical Security
Regulations or the Atomic Energy Control Regulations" (sub-article (ix)).
This last sub-article covers all of the personnel requirements of the
regulations and licence described above.
It is said that the
lack of any imposition of federal control over labour disputes in the
licence indicates that such control is not integral to federal jurisdiction.
However, with respect, I believe that what demonstrates that jurisdiction over
labour relations is integral to federal jurisdiction over the production of
energy power is not an actual exercise of that jurisdiction (indeed, no such
jurisdiction has been exercised in this case, as I discuss below), but a
commonality of interests and concerns between the existing federal regulatory
framework, and the matters to which labour relations legislation is addressed.
The licence provisions do indicate a strong and compelling federal interest in
labour relations matters at nuclear facilities, not the least of which is the
reporting of potential labour disturbances because of their serious health,
safety and security implications. It appears to me that the reporting of
labour disturbances to the Atomic Energy Control Board, mandated by the
licence, in fact dovetails neatly with federal regulation and supervision of
the disturbance itself.
Therefore, I think
that the domestic regulation of the production of nuclear energy demonstrates a
strong federal interest in the employment of those employed on or in connection
with facilities for the production of nuclear energy. Where those employees are
unionized, that federal interest extends to the labour relations regime which
governs the relationship between the employer and the employees, through their
bargaining agent.
(d) International
Regulation
The production of
nuclear energy is also closely monitored and regulated at the international
level, primarily by the International Atomic Energy Agency ("IAEA")
and the treaties and agreements negotiated through the IAEA to which Canada is
a party. The IAEA is mainly concerned with the promotion of the peaceful and
safe use of atomic energy, and the prevention of the diversion of nuclear
materials to non-peaceful uses.
Many of the
security provisions affecting employees in the regulations described above
(especially those in Part IV), and the licences under which nuclear facilities
operate, can be traced to Canada's international obligations in the field of
nuclear energy. Canada is a "non-nuclear weapon" party to the Treaty
on the Non-Proliferation of Nuclear Weapons, Can. T.S. 1970 No. 1, which in
Article III imposes "safeguards" on such parties to prevent the
diversion of nuclear materials to other than peaceful purposes.
Other IAEA
activities demonstrate the vital link between the safe production of nuclear
energy and the persons employed in that enterprise. For example, in the IAEA
Yearbook 1992, at p. D25, the development of a concept called "safety
culture" is discussed. Recognizing that (at p. D49) "[a] principal
root cause of failures is human error, which is often the initiator of incidents",
safety culture, the Yearbook explains, directs individuals, managers, and
policy makers to implement strategies and organizational structures to prevent
and detect such errors.
A paper presented
to an international symposium on the operational safety of nuclear power plants
organized by the IAEA also warned against treating employees engaged in the
production of nuclear energy like other utility employees. B. J. Csik of the
IAEA, in "International Guidance on the Qualifications of Nuclear Power
Plant Operations Personnel" (Operational Safety of Nuclear Power Plants
(1984), vol. II, 315) noted with disapproval (at p. 323) that:
Some
utilities maintain the attitude in their personnel management policy that a
nuclear power plant is just another electric generation plant, even though they
are fully aware of the differences between nuclear and fossil-fuelled units for
all other purposes.
On the
international level, then, there is a consistent recognition that supervising
employment on or in connection with facilities for the production of nuclear
energy is an integral part of assuring the safety of nuclear facilities and
materials. The question remains whether the jurisprudence of this and other
courts supports the strong practical reasons in favour of placing the
responsibility for both matters with the federal government.
B. Labour Relations Jurisprudence
The trilogy (Bell
Canada v. Quebec (Commission de la santé et de la sécurité du travail),
[1988] 1 S.C.R. 749; Canadian National Railway Co. v. Courtois, [1988] 1
S.C.R. 868; and Alltrans Express Ltd. v. British Columbia (Workers'
Compensation Board), [1988] 1 S.C.R. 897), with the cases Beetz J. relied
upon in the trilogy, emphasize the intimate link between the power to regulate
an industrial activity like producing nuclear energy, and the authority to make
laws respecting the management of that activity, which authority usually
extends to making laws respecting labour relations. For example, Beetz J.
described (at p. 825) the following passage (from Reference re Industrial
Relations and Disputes Investigation Act, [1955] S.C.R. 529 (the Stevedoring
case), at p. 592, per Abbott J.) as "a classic statement on
point":
The
right to strike and the right to bargain collectively are now generally
recognized, and the determination of such matters as hours of work, rates of
wages, working conditions and the like, is in my opinion, a vital part of the
management and operation of any commercial or industrial undertaking. This
being so, the power to regulate such matters, in the case of undertakings which
fall within the legislative authority of Parliament lies with Parliament and
not with the Provincial Legislatures.
My colleague
distinguishes this and other such general statements by observing that Ontario
Hydro as a whole is a "provincial", rather than a "federal"
"undertaking", so that these passages in fact demonstrate the
necessity of provincial control over labour relations at Ontario Hydro.
Federal jurisdiction over Ontario Hydro's nuclear facilities, it is suggested,
extends only so far as the "work" and the "integrated activities
related to the work". However, with respect, the description of Ontario
Hydro as a provincial undertaking to limit federal jurisdiction under s.
92(10)(c) to the work alone proves too much; a scrupulous application of
the works/undertakings distinction relied upon by Iacobucci J. would leave
Parliament jurisdiction over nothing more than the physical shell of the
nuclear generating facilities, a result which none of the parties supporting
provincial jurisdiction go so far as to assert.
To avoid finding
such an empty and ineffective jurisdiction over the work alone, commentators
and courts have accepted that Parliament's jurisdiction over a work subject to
a declaration includes some level of control over the activities which occur on
or in connection with it; such activities have often been described as the
"undertaking" connected with the work, although the strict terms of
s. 92(10)(c) would seem to limit Parliament's jurisdiction to the work
only. For example, the author of Laskin's Canadian Constitutional Law
(5th ed. 1986), vol. 1, asserts (at p. 629) that the effect of a declaration
"must surely be to bring within federal authority not only the physical
shell or facility but also the integrated activity carried on therein; in other
words, the declaration operates on the work in its functional character".
My colleague holds that this latter authority does not include labour
relations. However, if federal jurisdiction applies to the "integrated
activities related to the work", I see no convincing distinction between
what is called the "undertaking" of Ontario Hydro's nuclear
facilities (which must be distinguished from the "undertaking" of
Ontario Hydro's non-nuclear facilities and operations) and the "integrated
activities related to" those nuclear facilities. With respect, I think
further that the trilogy suggests the same parallel.
Bell Canada, the
subject of the lead judgment in the trilogy, is itself the subject of a
declaration by S.C. 1987, c. 19, s. 5 , which is confined to the strict limits
of s. 92(10) (c): "The works of the Company are hereby declared to
be works for the general advantage of Canada." At the time the trilogy
was decided, a declaration to the same effect was contained in S.C. 1882, c.
95, s. 4. While Bell Canada was also within federal jurisdiction under s.
92(10) (a), the declaration, if it is not completely redundant, must have
been seen as necessary to complete Parliament's control over the enterprise.
In the trilogy, Beetz J. used Bell Canada as the paradigm of a "federal
undertaking", the labour relations of which would be federally regulated,
notwithstanding that Parliament's jurisdiction was at least partly founded
under s. 92(10) (c). I would therefore not interpret Beetz J.'s
references in the trilogy to "federal undertakings" as restrictively
as is suggested, but rather would rely on those cases for the simple but
compelling proposition that jurisdiction to regulate a work and its related integrated
activity, here the production of nuclear energy, prima facie
includes jurisdiction to make laws respecting its labour relations.
The special
problems raised by such divided activities within a single enterprise were
canvassed by this Court in Northern Telecom Canada Ltd. v. Communication
Workers of Canada, [1983] 1 S.C.R. 733. Most of Northern Telecom's
employees were subject to provincial labour law. However, some employees were
"installers", who installed telephone equipment in Bell Canada's
telephone network. The Canada Labour Relations Board determined that the
installers were not employed on or in connection with the federal enterprise
that was Bell Canada, and so were outside of its jurisdiction. This Court held
that the installers were sufficiently integrated into the operations of Bell
Canada to fall within federal labour relations jurisdiction. Writing for the
majority of this Court, Estey J. described the inquiry before the Court, as it
had been outlined by Dickson J. (as he then was) in an earlier incarnation of
the litigation (Northern Telecom Ltd. v. Communications Workers of Canada,
[1980] 1 S.C.R. 115). Dickson J. wrote (at p. 133):
In
the case at bar, the first step is to determine whether a core federal
undertaking is present and the extent of that core undertaking. Once that is
settled, it is necessary to look at the particular subsidiary operation, i.e.,
the installation department of Telecom, to look at the "normal or habitual
activities" of that department as "a going concern", and the
practical and functional relationship of those activities to the core federal
undertaking.
Estey J. found that the installers
were an integral part of the core federal undertaking, so that they fell under
federal jurisdiction.
Applying the same
test to employees involved in the production of nuclear energy at Ontario
Hydro's nuclear facilities, I think it is clear that their "normal or
habitual activities" are intimately related to the federal interests in
nuclear energy, since the extent of the federal government's interest in
nuclear power production is its interests in health, safety and security,
matters completely within the daily control of those operating nuclear
facilities. The IAEA materials make this clear.
Therefore, I would
conclude under both the declaratory jurisdiction and the p.o.g.g. jurisdiction,
that the labour relations of Ontario Hydro's employees involved in the
production of nuclear energy, related as it is to the federal interest in
atomic energy, is an integral and essential part of Parliament's jurisdiction,
as it was found to be in previous cases like the trilogy in connection with
other integrated activities connected to federally declared works.
The courts below,
and the parties in this appeal supporting federal jurisdiction over labour
relations, relied on the decision of the Ontario High Court of Justice in Pronto
Uranium Mines Ltd. v. Ontario Labour Relations Board, [1956] O.R. 862. My
colleague fully reviews the facts and result in this decision, which upheld
federal p.o.g.g. jurisdiction over atomic energy and a resulting jurisdiction
over labour relations, but seeks to limit its persuasive authority on four
bases: (i) it was decided before this Court's decision in R. v. Crown
Zellerbach Canada Ltd., [1988] 1 S.C.R. 401; (ii) its conclusion is not
supported by any reasons; (iii) the issue of jurisdiction over labour relations
was conceded by the parties; and (iv) it does not accord with decisions of this
Court which have indicated that federal and provincial powers must accommodate
one another to the extent possible.
Responding to the
first ground of distinction, with respect, I see nothing in Pronto which
is inconsistent with this Court's decision in Crown Zellerbach. While I
agree that Crown Zellerbach set a high threshold for finding
jurisdiction under the national concern branch of p.o.g.g., I think that atomic
energy meets that threshold, as does Iacobucci J. when he states at p. 425 that
"there is no dispute that Parliament has jurisdiction over atomic energy
under the national concern branch of the p.o.g.g. power". Where I
understand my colleague to disagree with the holding in Pronto, based on
the subsequent jurisprudence of this Court, is the question of whether labour
relations are integral to a great enough extent to Parliament's p.o.g.g.
jurisdiction to merit recognition. If they are not, then the p.o.g.g.
jurisdiction cannot be allowed to so entrench on provincial jurisdiction. I do
not understand my colleague to claim that where such jurisdiction is integral,
the scale of impact must nevertheless be reconcilable with provincial
jurisdiction. Given my position that labour relations are integral to
Parliament's p.o.g.g. jurisdiction, I do not see that anything in Pronto
fails to satisfy the high threshold in Crown Zellerbach.
On the second and
third grounds, the fact that the parties did not dispute the issue, and that
McLennan J. did not, therefore, need to detail his reasoning does not mean that
the decision is wrong: McLennan J. could not have accepted the parties' concessions
on the very question before him (the jurisdiction of the Ontario Labour
Relations Board) if he was of the view that Parliament did not have
jurisdiction over labour relations as part of its p.o.g.g. jurisdiction. In
fact, his concise reasoning with respect to what must necessarily be included
in Parliament's jurisdiction over labour relations over atomic energy was based
on the Stevedoring case, and McLennan J. even expressed his holding in a
paraphrase of the words of Rand J. in that decision.
Finally, on the
fourth ground, the precise accommodation to be worked out between the federal
and provincial governments is the issue in this appeal, and in my view, the
division of authority I arrive at, which is the same as that found by McLennan
J., respects this accommodation, for the reasons I have outlined above.
Therefore, while
this Court is by no means bound by the decision in Pronto, the judgment
is not entirely without persuasive force, presaging as it does the close link
between Parliament's interests in regulating nuclear energy and its interest in
regulating the labour relations of those involved in the production of nuclear
energy.
An instructive
contrast is provided by this Court's decision in Four B Manufacturing Ltd.
v. United Garment Workers of America, [1980] 1 S.C.R. 1031. Four B was an
Ontario corporation operating a factory on a Mohawk Indian reserve, pursuant to
a licence issued by the Minister of Indian Affairs and Northern Development
under the Indian Act, R.S.C. 1970, c. I-6. The company was privately
owned and operated by four members of the Band, in a building leased from the
Band Council. Of Four B's 68 employees, 48 were Band members, 10 were former
Band members, and 10 were non-Indians. The respondent union was certified as the
bargaining agent for the employees under the Ontario Labour Relations Act,
R.S.O. 1970, c. 232, but Four B objected to the jurisdiction of the Ontario
Labour Relations Board to make the certification order. Four B asserted that
labour relations at the company were within the exclusive jurisdiction of
Parliament, pursuant to s. 91(24) of the Constitution Act, 1867 .
Beetz J., for the
majority of the Court, rejected Four B's submission. He began by stating the
principles applicable in Four B, based on the jurisprudence of this
Court (at p. 1045):
With
respect to labour relations, exclusive provincial legislative competence is the
rule, exclusive federal competence is the exception. The exception comprises,
in the main, labour relations in undertakings, services and businesses which,
having regard to the functional test of the nature of their operations and
their normal activities, can be characterized as federal undertakings, services
or businesses. . . .
Applying these principles to Four B,
Beetz J. concluded (at p. 1046):
There
is nothing about the business or operation of Four B which might allow
it to be considered as a federal business: the sewing of uppers on sport shoes
is an ordinary industrial activity which clearly comes under provincial
legislative authority for the purposes of labour relations. Neither the
ownership of the business by Indian shareholders, nor the employment by that
business of a majority of Indian employees, nor the carrying on of that
business on an Indian reserve under a federal permit, nor the federal loan and
subsidies, taken separately or together, can have any effect on the
operational nature of that business. [Emphasis added.]
This focus on the
nature of the activity involved and the operational nature of the business,
instead of on the external trappings of the business, is equally apt in the
case of Ontario Hydro's nuclear facilities. With respect, Iacobucci J.'s
reliance on the fact that Ontario Hydro, as a whole, is a provincial
undertaking fails to appreciate the nature of the activity involved in, and the
operational nature of, Ontario Hydro's nuclear facilities in particular.
Unlike the situation in Four B, producing nuclear energy is not an
"ordinary industrial activity" which is only incidentally carried on
by federally regulated persons. Instead, the activity itself is within the
federal legislative domain. Similarly, the "operational nature" of
the business of producing nuclear energy directly engages Parliament's interest
in controlling and supervising the application and use of atomic energy. As in
Four B, then, the provincial trappings of Ontario Hydro's nuclear
facilities should not mask their essentially federal operational nature.
C. The Effect of Section 92A(1)(c)
Ontario Hydro and
the intervenors supporting its position argue as if the federal government were
seeking jurisdiction over the labour relations of all Ontario Hydro
employees, simply because some Ontario Hydro employees are engaged in
the production of nuclear energy. If this were the case, I would agree that
Ontario Hydro's status as "a provincial undertaking" was relevant,
and that s. 92A(1) (c) operates to foreclose such a result. Provincial
jurisdiction over all aspects of the majority of Ontario Hydro's operations,
pursuant to s. 92A(1) (c), remains undisturbed by my holding in this case
that the labour relations of those employed on or in connection with facilities
for the production of nuclear energy are federally regulated.
This is how I would
respond to concerns that s. 92A(1) (c) be given some meaning in this
case. Only those employees actually employed on or in connection with
facilities for the production of nuclear energy are federally regulated. In
his affidavit, Arvo Niitenberg, Ontario Hydro's Senior Vice-President of
Operations, explains that generating electricity requires a source of energy, a
turbine, and a generator. The source of energy at nuclear facilities is a
nuclear fission reaction, which generates heat energy, which is then used to
turn water into steam. That steam drives the turbine, which spins the
generator, which produces the electricity by means of an electromagnet and wire
coils. The affidavit makes it clear that, once the steam is produced, there is
no difference between thermal (i.e., fossil-fuel) and nuclear electrical
generation. Although I would leave it to the Ontario Labour Relations Board to
exclude those particular employees from its jurisdiction who are covered by the
Canada Labour Code , in general terms I am of the view that it is only
those employees involved in the first of the three parts of the generation
phase who would be federally regulated. That is, those employees engaged in
using nuclear reactors to generate heat energy would be covered by the federal
legislation, while those who are involved with using that heat energy to run
the turbine, which in turn runs the generator, would be provincially
regulated. The former employees are employed in the production of nuclear
(heat) energy, and come under federal jurisdiction under both the declaratory
and p.o.g.g. powers; the latter employees are employed in the production of
electricity, and the management of their activities falls to the provinces
under s. 92A(1) (c).
It appears to me
that Ontario Hydro's facilities where nuclear power is used actually involve
two plants: one for the production of nuclear (heat) energy, and another for
the generation of electricity using that heat energy. Once the heat energy is
produced, it matters little how it was produced for the rest of the generation
phase. As the parties have not, unfortunately, presented detailed evidence of
job classifications and descriptions at Ontario Hydro's nuclear facilities, I
would leave the precise details to the appropriate Labour Relations Boards.
The Ontario Labour Relations Board in this case did not indicate that it
foresaw any difficulty in making such a determination, should its decision as
to its jurisdiction be upheld on judicial review.
D. Other Factors
(a) Laches
It was suggested by
parties and interveners supporting provincial jurisdiction in this appeal that
the failure of the federal government to actually regulate the labour relations
of Ontario Hydro employees involved in the production of nuclear energy should
weaken its present claim that federal jurisdiction over labour relations is
integral to the federal regulation of atomic energy.
There is no
doctrine of laches in constitutional division of powers doctrine; one level of
government's failure to exercise its jurisdiction, or failure to intervene when
another level of government exercises that jurisdiction, cannot be
determinative of the constitutional analysis. In this respect, I would adopt
the statement of Reed J. in Alberta Government Telephones v. Canadian
Radio-television and Telecommunications Commission, [1985] 2 F.C. 472
(T.D.), at p. 488:
The
fact that constitutional jurisdiction remains unexercised for long periods of
time or is improperly exercised for a long period of time, however, does not
mean that there is thereby created some sort of constitutional squatters
rights. (Refer: Attorney General of Manitoba v. Forest, [1979] 2
S.C.R. 1032 for a case in which unconstitutional action had remained
unchallenged for ninety years.)
I do not understand
any of the parties or interveners to suggest that any form of the doctrine of
laches applies. At best, the failure of the federal government to exercise its
jurisdiction weakens the factual argument that such federal jurisdiction is
necessary, but does not dispose of it.
However, just
because labour relations have been successfully regulated under provincial law
up to this challenge does not mean that authority to regulate them should be
left there for the sake of expediency. Similarly, the hypothesis that a
provincial labour relations regime could respond to safety concerns as
well as a federal regime, does not dispose of the question of which level of
government should respond to such concerns.
(b) Problems of
Divided Jurisdiction
It is important to
remember the words of Estey J. in the 1983 Northern Telecom decision, supra,
at p. 760, that this Court is not concerned "with the question of relative
efficiency as between the assignment of the labour relations here in question
to the federal or the provincial jurisdiction". To similar effect are the
comments of McIntyre J., for the Court, in Reference re Upper Churchill
Water Rights Reversion Act, [1984] 1 S.C.R. 297, at p. 334: ". . . it
is not for this Court to consider the desirability of legislation from a social
or economic perspective where a constitutional issue is raised". McIntyre
J. also quoted Laskin C.J. in Central Canada Potash Co. v. Government of
Saskatchewan, [1979] 1 S.C.R. 42, who wrote at p. 76:
They
[governments] are entitled to expect that the Courts, and especially this
Court, will approach the task of appraisal of the constitutionality of social
and economic programmes with sympathy and regard for the serious consequences
of holding them ultra vires. Yet, if the appraisal results in a clash
with the Constitution, it is the latter which must govern.
In this case,
Galligan J.A., and the parties and interveners supporting provincial
jurisdiction, argued that "it would make no labour relations sense"
to divide Ontario Hydro's labour relations between those employees engaged in
the production of nuclear energy, and those employed in the other aspects of
the generation phase, as well as the transmission and distribution phases.
While this is no doubt a concern, given my finding that Parliament has
jurisdiction over the labour relations of these employees, it cannot be allowed
to be a determinative one.
I am confident that
the Ontario Labour Relations Board is capable of determining which employees
fall under its jurisdiction, as was the Board itself. Labour lawyers have
worked out much more complicated matters than divided jurisdiction within
Ontario Hydro's nuclear generating facilities.
III. Disposition
I would dismiss the
appeals, and confirm the order of the Court of Appeal reinstating the decision
of the Ontario Labour Relations Board, and declaring that the Canada Labour
Code does apply to employees of Ontario Hydro who are employed on or in
connection with those nuclear facilities that come under s. 18 AECA . I
would make no order as to costs.
The judgment of La
Forest, L'Heureux-Dubé and Gonthier JJ. was delivered by
La
Forest J. -- The issue in
these appeals is whether the Ontario Labour Relations Act, R.S.O. 1990,
c. L.2, or the federal Act, the Canada Labour Code, R.S.C., 1985, c.
L-2 , constitutionally applies to govern the labour relations between Ontario
Hydro and its employees at Hydro's nuclear electrical generating stations.
Background
Ontario Hydro, a
provincially owned corporation established for the purpose of generating and
distributing electric power, produces electric power through 81 electrical
generating stations of which five are nuclear generating stations. The Society
of Ontario Hydro Professional and Administrative Employees applied for
certification pursuant to the Ontario Labour Relations Act as exclusive
bargaining agent for a unit of employees of Ontario Hydro, including those
employed at the nuclear plants. Another group of employees, the Coalition to
Stop the Certification of the Society, challenged the application on the ground
that the employees who worked at the nuclear generating stations fell within
the jurisdiction of the Canada Labour Relations Board established under the Canada
Labour Code . The Ontario Labour Relations Board held it had no
jurisdiction to certify the bargaining unit in the Society's application
because the unit included employees who worked at the nuclear generating
station, which in its view were governed by the Canada Labour Code :
[1988] OLRB Rep. Feb. 187. This decision was quashed by the Ontario Divisional
Court (1989), 69 O.R. (2d) 268, 33 O.A.C. 302, 60 D.L.R. (4th) 542, 89 CLLC
{PP} 14,044, but was reinstated by a majority of the Ontario Court of Appeal
(1991), 1 O.R. (3d) 737, 43 O.A.C. 184, 77 D.L.R. (4th) 277, 91 CLLC {PP}
14,014. Leave was sought and granted to appeal to this Court, [1991] 3 S.C.R.
x. The Chief Justice stated the following constitutional question:
Does
the Labour Relations Act of Ontario, R.S.O. 1980, c. 228 [now R.S.O.
1990, c. L.2], or the Canada Labour Code, R.S.C., 1985, c. L-2 ,
constitutionally apply to the matter of labour relations between Ontario Hydro
and those of its employees who are employed in Ontario Hydro's nuclear
electrical generating stations which have been declared to be for the general
advantage of Canada under s. 18 of the Atomic Energy Control Act,
R.S.C., 1985, c. A-16 ?
As in the courts
below, those who supported federal jurisdiction relied on Parliament's power to
declare works, although wholly situate within a province, to be for the general
advantage of Canada (ss. 92(10)(a) and 91(29) of the Constitution
Act, 1867 ), and its general power to legislate for the peace, order and
good government of Canada in the opening words of s. 91 of that Act. I note
that all works and undertakings constructed "for the production, use and
application of atomic energy" were declared works for the general
advantage of Canada by s. 18 of the Atomic Energy Control Act, R.S.C.,
1985, c. A-16 , and none of the parties contests that Ontario Hydro's nuclear
facilities fall within the ambit of the declaration. The appellants argue,
however, that this does not bring within Parliament's jurisdiction the labour
relations at those facilities, about which it has purported to legislate under
the Canada Labour Code , which by the combined effect of ss. 2 (h)
and 4 applies to works and undertakings within the legislative authority of
Parliament, including works declared to be for the general advantage of Canada.
Those who supported
provincial jurisdiction relied on the province's traditional power under s. 92
of the Constitution Act, 1867 to exclusively make laws in relation to
local works and undertakings (s. 92(10) ), property and civil rights (s.
92(13) ), and matters of a merely local or private nature (s. 92(16) ), but they
placed especial reliance on s. 92A(1) (enacted by the Constitution Act, 1982,
s. 50 ), which empowers the provinces to exclusively make laws in relation to
non-renewable natural resources, forestry resources, and electrical energy, and
specifically on s. 92A(1) (c), which reads as follows:
92A. (1) In each province, the
legislature may exclusively make laws in relation to
. . .
(c)
development, conservation and management of sites and facilities in the
province for the generation and production of electrical energy.
Ontario Hydro, while conceding that it
was not a Crown agent, also argued that it should be immune from federal
regulation because it was a provincial instrumentality set up to advance
provincial purposes.
Justice Iacobucci
(who fully sets forth the facts, judicial history and relevant legislation) is
of the view that Parliament has exclusive jurisdiction under its declaratory
power and the general power under s. 91 of the Constitution Act, 1867
over some aspects of the nuclear generating facilities, but that the control of
labour relations at these facilities is not integral to Parliament's effective
regulation of these facilities, and in consequence are governed as a provincial
matter under the Labour Relations Act. The Chief Justice, on the other
hand, is of the view that the power to regulate the labour relations of those
employed at these facilities for the production of nuclear energy is integral
to Parliament's declaratory and general power. For the reasons that follow, I
agree with the conclusion reached by the Chief Justice. In my view, the
regulation of the labour relations of employees engaged in the production of
nuclear energy falls within the exclusive powers granted to Parliament under
the combined effect of the opening and closing words and head (29) of s. 91 ,
and s. 92(10) (c) of the Constitution Act, 1867 . I shall first
discuss the declaratory power.
The Declaratory Power
Section 92(10) (c)
of the Constitution Act, 1867 authorizes Parliament to declare local
works (which by s. 92(10) would otherwise fall within provincial power) to be
for the general advantage of Canada. When such a declaration is made, any work
subject to the declaration falls, by virtue of s. 91(29) , within the
legislative jurisdiction of Parliament. The effect of the declaration is the
same as if such work was expressly enumerated in s. 91 ; see City of Montreal
v. Montreal Street Railway Co., [1912] A.C. 333, at p. 342. This is
scarcely surprising. The opening and closing words of s. 91 make it clear that
(notwithstanding anything in the Act) Parliament's exclusive legislative
authority extends to such classes of subjects as are expressly excepted from
the provincial enumeration of powers, including, of course, those specified in
s. 92(10) (c); see also Commission du salaire minimum v. Bell
Telephone Co. of Canada, [1966] S.C.R. 767 (Bell Canada 1966), at
pp. 771-72, per Martland J. for the Court. A work subject to a
declaration thus falls within the exclusive legislative power of Parliament,
and provincial jurisdiction over the work is ousted; see Wilson v.
Esquimalt and Nanaimo Railway Co., [1922] 1 A.C. 202, at p. 207. Laws of
general application in the province (such as taxation) will, of course, apply
to the work, but these cannot touch an integral part of Parliament's
jurisdiction over the work. The province cannot legislate respecting the work qua
work. As early as 1899, the Privy Council made it clear that classes of
subjects expressly excepted from the enumeration of provincial subjects of
provincial legislative power (which, of course, includes works subject to a
declaration) included the power not only to construct, repair and alter such a
work but its management as well; see Canadian Pacific Railway Co. v.
Corporation of the Parish of Notre Dame de Bonsecours, [1899] A.C. 367, at
pp. 372-73.
The law on the
matter has not really changed since then, though it has been subjected to
considerable elaboration. Thus, as Iacobucci J. notes, recent authorities
underscore that federal jurisdiction over declared works includes jurisdiction
to regulate their operations; see Chamney v. The Queen, [1975] 2 S.C.R.
151, at p. 159; see also The Queen v. Thumlert (1959), 20 D.L.R. (2d)
335 (Alta. S.C., App. Div.), at p. 341. A declaration incorporates a work as a
functioning unit; in Laskin's words, the declaration "must surely be to
bring within federal authority not only the physical shell or facility but also
the integrated activity carried on therein; in other words, the declaration
operates on the work in its functional character"; see Laskin's
Canadian Constitutional Law (5th ed. 1986), vol. 1, at p. 629. For my
part, I am at a loss to see how one can have exclusive power to operate and
manage a work without having exclusive power to regulate the labour relations
between management and the employees engaged in that enterprise. That is what
this Court has repeatedly stated; see Bell Canada 1966, supra,
and Bell Canada v. Quebec (Commission de la santé et de la sécurité du
travail), [1988] 1 S.C.R. 749 (Bell Canada 1988), esp. at pp.
839-40. As Beetz J. put it in the latter case, "these are two elements of
the same reality" (p. 798).
In my view, most of
the issues raised in this case have been fully disposed of by Beetz J. in his
characteristically clear and thorough manner in the Bell Canada 1988
case and its companion cases in the 1988 trilogy (Canadian National Railway
Co. v. Courtois, [1988] 1 S.C.R. 868, and Alltrans Express Ltd. v.
British Columbia (Workers' Compensation Board), [1988] 1 S.C.R. 897), but
it seems necessary, in light of the argument, to draw attention to those parts
of his analysis specifically relevant here. I begin by noting that in the Bell
Canada 1988 case, at p. 825, he approved what he described as the classic
statement on the subject by Abbott J. in Reference re Industrial Relations
and Disputes Investigation Act, [1955] S.C.R. 529 (the Stevedoring
case), at p. 592, which reads as follows:
The
right to strike and the right to bargain collectively are now generally
recognized, and the determination of such matters as hours of work, rates of
wages, working conditions and the like, is in my opinion a vital part
of the management and operation of any commercial or industrial undertaking.
This being so, the power to regulate such matters, in the case of undertakings
which fall within the legislative authority of Parliament lies with Parliament
and not with the Provincial Legislatures. [Emphasis added by Beetz J.]
I should observe
that Beetz J. had earlier very generally described "working
conditions" for the purposes of the trilogy as including the conditions of
work settled by contracts of employment or collective agreements. As he put it,
at pp. 798-99: "working conditions are conditions under which a worker or
workers, individually or collectively, provide their services, in accordance
with the rights and obligations included in the contract of employment by the
consent of the parties or by operation of law, and under which the employer
receives those services".
It is argued,
however, that Bell Canada 1988 and other earlier cases were confined to
"undertakings" in s. 92(10) (a) and (b) and not to works
in s. 92(10) (c). Simply put, I cannot accept this. I have already
observed that the Bonsecours case in its terms applied to all the
exceptions in s. 92(10) . And that is true of several of the cases relied upon
by Beetz J. in Bell Canada 1988. Thus in Letter Carriers' Union of
Canada v. Canadian Union of Postal Workers, [1975] 1 S.C.R. 178 (cited in Bell
Canada 1988, at p. 820), Ritchie J. stated at p. 181 that "it has been
established that it is not within the competency of a provincial legislature to
legislate concerning industrial relations of persons employed in a work,
business or undertaking coming within the exclusive jurisdiction of the
Parliament of Canada" (emphasis added). Similar statements may be found
in the Stevedoring case, supra. Thus Fauteux J., at p. 585
(cited in Bell Canada 1988, at p. 825) spoke of "labour operations
within this limited field of works, undertakings and businesses as to
which the regulation by law is, under the B.N.A. Act, committed to the
legislative authority of Parliament". Beetz J. in Bell Canada 1988,
at pp. 830-31, like Martland J. before him in Bell Canada 1966, at pp.
774-75, also relied on Duff J.'s statement in Reference re Legislative
Jurisdiction over Hours of Labour, [1925] S.C.R. 505, at p. 511, regarding
the federal powers of regulation touching the employment of persons on works
or undertakings.
Beetz J. himself
makes it clear on at least three occasions (pp. 761-62, 816-17 and 820) that
despite the fact that labour relations ordinarily fall within s. 92(13) of the Constitution
Act, 1867 (his "proposition two") that is not so of works or
undertakings legislative jurisdiction over which is vested in Parliament. He
says at pp. 761-62:
Notwithstanding
the rule stated in proposition two, Parliament is vested with exclusive
legislative jurisdiction over labour relations and working conditions when that
jurisdiction is an integral part of its primary and exclusive jurisdiction over
another class of subjects, as is the case with labour relations and working
conditions in the federal undertakings covered by ss. 91(29) and 92(10) a.,
b. and c. of the Constitution Act, 1867 , that is
undertakings such as Alltrans Express Ltd., Canadian National and Bell Canada.
It follows that this primary and exclusive jurisdiction precludes the
application to those undertakings of provincial statutes relating to labour
relations and working conditions, since such matters are an essential part of
the very management and operation of such undertakings, as with any commercial
or industrial undertaking. . . . [Emphasis added.]
I emphasize that Beetz J. there
includes s. 92(10) (c), i.e., declared works, among those undertakings
subject to exclusive federal power. And he continues in the next paragraph (at
p. 762):
It
should however be noted that the rules stated in this third proposition appear
to constitute only one facet of a more general rule: works, such as
federal railways, things, such as land reserved for Indians, and persons, such
as Indians, who are within the special and exclusive jurisdiction of Parliament,
are still subject to provincial statutes that are general in their application,
whether municipal legislation, legislation on adoption, hunting or the
distribution of family property, provided however that the application of these
provincial laws does not bear upon those subjects in what makes them
specifically of federal jurisdiction. . . . [Emphasis added.]
I underline that in the last line of
this statement Beetz J. explains that provincial laws cannot apply to matters
specifically of federal jurisdiction, and that in the previous paragraph he had
unequivocally asserted that labour relations are an integral part of
Parliament's primary and exclusive jurisdiction over matters covered by, inter
alia, s. 92(10) (c) "declared works".
These statements
are scarcely surprising. As I noted earlier, the legislative jurisdiction
conferred over a declared work refers to the work as a going concern or
functioning unit, which involves control over its operation and management.
And as I recently noted in Re Canada Labour Code, [1992] 2 S.C.R. 50, at
p. 78, inevitably "labour relations tribunals impinge upon powers that
have traditionally been considered to be management prerogatives". Labour
relations are integral and vital parts of the operation of a work. There is no
room for mutual modification of federal and provincial power. A province
undoubtedly has power by general legislation to affect the operation of a
declared work, but legislation governing labour relations on such works is
legislation in relation to that work and falls outside provincial legislative
competence; see the reasons of Pratte J.A. (Stone J.A. concurring) in Shur
Gain Division, Canada Packers Inc. v. National Automobile, Aerospace and
Agricultural Implement Workers Union of Canada, [1992] 2 F.C. 3, at pp.
35-37, and the other Federal Court of Appeal cases there cited. Labour
relations are an integral part of Parliament's exclusive power to legislate in
relation to declared works. No evidence is required to establish this.
I add in passing
that the current goals of labour relations, upon which my colleague Iacobucci
J. places considerable stress, have nothing to do with the source of the
legislative power. As I understand it, he argues for provincial power over
labour relations from what he perceives to be the primary purpose of labour
relations, i.e., the preservation of industrial peace and empowerment of
workers. The provinces undoubtedly have a direct interest in such goals in
furtherance of their general jurisdiction over property and civil rights, but
this general power must give way in specific areas exclusively assigned to the
federal Parliament, specifically in relation to federal works, i.e., works
falling within federal legislative competence. In legislating on labour
relations in this area, Parliament is engaged in regulating the work. In doing
so, it may adopt, and indeed, has adopted legislation similar to provincial
legislation. But this it does under its legislative power to manage and
control the work, and this, of course, affects property and civil rights. The
fact that Parliament in operating and controlling federal works adopts labour
relations policies that are similar to policies adopted by the provinces does
not make these policies fall within property and civil rights within s.
92(13) . Beetz J. made it clear that the regulation of labour relations in the
exercise of a federal power constitutes an exception to the general provincial
power to legislate on the matter as property and civil rights in the province.
It is not necessary
for me to engage in a consideration of the possible difference in scope between
"undertakings" and "works" for the purposes of the various
items in s. 92(10) . I mentioned earlier that a work under s. 92(10) (c)
means a work as a going concern, and to manage that going concern Parliament
must have power to regulate the labour relations between management and labour
engaged in operating the work. I see no logical or practical difference in the
need for control of the labour relations in the management of an undertaking
and in the management of a work as so understood. In that sense, a work is an
undertaking, an undertaking, however, that must include a work. Rand J. in the
Stevedoring case, supra, at p. 553, appears to have had this idea
in mind in the following statement:
The
former [i.e., declared works], so far as the works themselves are likewise
undertakings, would be such as yield some mode of service of a public or
quasi-public nature. I see no distinction to be made between them and dominion
works and undertakings generally. Undertakings, existing without works, do not
appear in 92(10)(c) and cannot be the subject of such a declaration.
This would appear to have been the
sense in which Beetz J., in Bell Canada 1988, referred to undertakings
in s. 92(10) (c) because he knew, of course, that that provision referred
to works only. As well, we saw, he relies on numerous statements that refer to
both works and undertakings.
In this context, I
note that s. 18 of the Atomic Energy Control Act, inter alia,
makes both "works and undertakings . . . for the
production, use and application of atomic energy" subject to the
declaration. This probably was meant to include matters necessary to the
operation of a nuclear facility, and as such would be superfluous. Certainly,
it was not meant to cover the whole of the undertaking of Ontario Hydro. The
declaration is confined to facilities constructed for the production, use
and application of atomic energy, not to those constructed for the
production of electrical energy by other means. The precise determination of
which persons are employed in one type of facility or the other may, no doubt,
give rise to problems of categorization. That issue is not, however, before
us, we have no evidence on it, and I refrain from commenting on the matter.
Specific Arguments
What has already
been said is sufficient to dispose of this aspect of the case but I shall
attempt to respond to a number of specific arguments made by the appellants.
It was argued that
the declaratory power must be read narrowly to make it conform to principles of
federalism. There is no doubt that the declaratory power is an unusual one
that fits uncomfortably in an ideal conceptual view of federalism. But the
Constitution must be read as it is, and not in accordance with abstract notions
of theorists. It expressly provides for the transfer of provincial powers to
the federal Parliament over certain works. That is clearly set forth in the
statement of Duff J. in Reference re Waters and Water-Powers, [1929]
S.C.R. 200, at p. 220, cited by Iacobucci J. at pp. 397-98. This is scarcely
an isolated statement. Mignault J. had expressed the same thought in at least
as strong terms in the following passage in Luscar Collieries Ltd. v.
McDonald, [1925] S.C.R. 460, at p. 480:
The
power conferred on Parliament to declare that works wholly situate within the
province are for the general advantage of Canada or for the advantage of two or
more of the provinces, is obviously a far-reaching power. Parliament is the sole
judge of the advisability of making this declaration as a matter of policy
which it alone can decide. And when the power is exercised in conformity with
the grant, it vests in Parliament exclusive legislative authority over the
local work which it removes from the provincial to the federal field of
jurisdiction.
There is no
authority supporting the view that the declaratory power should be narrowly
construed. Quite the contrary. It might, I suppose, have been possible to
interpret s. 92(10) (c) so as to confine it to works related to
communications and transportation such as those specifically listed in s.
92(10) (a) and (b) but the courts, including this Court, have
never shown any disposition to so limit its operation, and a wide variety of works
‑‑ railways, bridges, telephone facilities, grain elevators, feed
mills, atomic energy and munition factories ‑- have been held to have
been validly declared to be for the general advantage of Canada. I note that
neither the Chief Justice nor Iacobucci J. have any doubt about this.
The restricted view
advanced here for the first time appears to be based on the danger thought to
be posed to the structure of Canadian federalism if the courts do not confine
federal power in this area. To begin with, I fail to see how abstracting from
Parliament the power to regulate labour relations (which I have observed is
necessary for the proper management of a work), while leaving all other
regulation of the work to the federal government, does much to advance the federal
principle. And I scarcely see the logic of having labour relations in federal
undertakings fall within federal legislative power, but not labour relations in
federal works. But more fundamentally I think the argument evinces a
misunderstanding of the respective roles of law and politics in the
specifically Canadian form of federalism established by the Constitution.
I should first of
all observe that the declaratory power is not the only draconian power vested
in the federal authorities. The powers of disallowance and reservation
accorded the federal government by ss. 55 -57 and 90 of the Constitution Act,
1867 give it unrestricted authority to veto any provincial legislation; see
Wilson v. Esquimalt and Nanaimo Railway Co., supra, at p. 210;
see also Reference re Disallowance and Reservation, [1938] S.C.R. 71.
The exercise of this authority is wholly a matter of discretion for the federal
government, and in the Reference case just noted, it was stated that the courts
are not constitutionally empowered to express an opinion about its exercise
(see p. 95); for a similar statement regarding the declaratory power, see The
Queen v. Thumlert, supra. The declaratory and veto powers were
frequently used in tandem in the early years following union to accomplish the
original constitutional mandate by establishing the authority of the central
government and its policies, and in particular to ensure the construction of
the intercontinental railway. Later, the declaratory power was effectively
used as a tool to regulate the national grain market in the pursuit of the
constitutional vision of integrating the western region of Canada into the
country.
But even in the
heady early days when the exercise of these powers was commonplace because of
the constitutional mandate to create a single country, their use for other
purposes was firmly, and ultimately successfully, challenged. Both powers
faded almost into desuetude when these large constitutional and national tasks
had been accomplished. The power of disallowance, which had long been in
decline, has not been used since 1942. The declaratory power has suffered a
similar fate and has been used only twice since the 1960s. It is the very
breadth of these powers that protects against their frequent or inappropriate
use. It was not the courts but political forces that dictated their near
demise. They are, as was said of the power of disallowance,
"delicate" and "difficult" powers to exercise and
"will always be considered a harsh exercise of power, unless in cases of
great and manifest necessity . . ."; see Severn v. The Queen
(1878), 2 S.C.R. 70, per Richards C.J., at p. 96, and Fournier J., at p.
131. Their inappropriate use will always raise grave political issues, issues
that the provincial authorities and the citizenry would be quick to raise. In
a word, protection against abuse of these draconian powers is left to the
inchoate but very real and effective political forces that undergird
federalism.
I see nothing in
the statement in Reference re Resolution to Amend the Constitution,
[1981] 1 S.C.R. 753, to the effect that a substantial measure of provincial
consent was required before the Constitution could be amended that is in any
way at odds with this. For the Court in that case made it clear that it was
not within its province to enforce this requirement. It was, it noted, a convention.
The enforcement of conventions lies in the political, not the legal field.
They can be broken, and the courts have no power to prevent this, but there is
a political price to pay. The courts have not engaged in the task of defining
the manner in which these broad political bases of Canadian federalism should
be protected. The Constitution has not accorded them that mandate. These are
matters for the people. This is not to say that the courts do not have an
important, indeed essential, role in balancing federalism as they go about
their task of defining the nature and effect of those great but more subtle
powers, not susceptible of definition and direction by those elemental
political forces that undergird Canadian federalism. Finally I should add that
Dickson C.J.'s description in General Motors of Canada Ltd. v. City National
Leasing, [1989] 1 S.C.R. 641, at p. 671, of federal power under s. 92(10)
as "narrow and distinct" has nothing to do with the present case at
all. He was there comparing this and other particularized powers with broadly
described powers, such as trade and commerce, and the extent to which
incidental exercises of jurisdiction could be "tacked-on" to these
various powers.
I next note the
argument that the declared nuclear facilities fall to be regulated by federal
authorities but only in relation to their safety and security aspects not
labour relations generally. This approach is supported by reliance on the
preamble to the Atomic Energy Control Act. The preamble may set forth
the purpose why Parliament declared works for the development of atomic energy
to be for the general advantage. But once the declaration is made the
legislative power flowing therefrom is governed by the Constitution. As noted
earlier, the work subject to the declaration is in the same position as if it
were expressly mentioned in the Constitution. At best, the preamble might give
some clue as to what works were intended to be covered by the declaration; it
cannot, however, define the scope of legislative power to be exercised by
Parliament in respect of a work, once it is determined that it falls within the
ambit of a declaration. I should add that I find difficulty in understanding
the argument because safety and security are as much in jeopardy from the
manner in which employees do their work as in the manner in which a facility is
constructed, and, as the Chief Justice points out, many of the regulations of
the Atomic Energy Control Board have to do with labour relations. The fact
that these are established by one federal organism rather than another does not
affect their character.
In truth, I find
that this attempted restriction of federal power to health and security
considerations flies in the face of the Act. What the declaration there gives
Parliament is jurisdiction, inter alia, over works constructed for the
production, use and application of atomic energy. In making legislation to
that end, I fail to see how one can logically limit it to health and security
concerns.
Again, there is the
argument that for many years the parties resorted to the Ontario Labour
Relations Act rather than the Canada Labour Code . But this, as I
see it, is of no moment. The case is not dissimilar in that respect from Attorney-General
for Ontario v. Winner, [1954] A.C. 541, where the province had exercised
jurisdiction over interprovincial motor transportation for an even longer
period.
Finally there is
the argument based on inconvenience. Bifurcating legislative power over labour
relations in Ontario Hydro, a single enterprise, would, it is said, create
practical difficulties. Two sets of rules would apply to different employees
and, of course, there is the difficulty of drawing the line between federal
matters and provincial matters. These problems are not really new. The
interrelationship between Parliament's power over federal works and closely
related provincial activity has always raised practical difficulties. Even the
present type of difficulty is not unique. In Shur Gain Division, supra,
the Federal Court of Canada had occasion to deal with a similar situation.
Again, it is obvious from a close reading of the Stevedoring case, supra,
that had the shipping company there been engaged solely in intraprovincial
shipping (as opposed to interprovincial as was assumed), stevedores could not
have been combined in a unit comprising office employees or other workers
engaged in matters not related to navigation. Similar views are expressed in
other cases; see, for example, R. v. Picard, Ex parte International
Longshoremen's Association, Local 375 (1967), 65 D.L.R. (2d) 658 (Que.
Q.B.), and Northern Telecom Ltd. v. Communications Workers of Canada,
[1980] 1 S.C.R. 115. Various techniques of administrative inter-delegation
have been developed to deal with problems of conjoint interest following upon
the case of Winner, supra. If the problems here are sufficiently
acute, and Parliament deems it appropriate to do so, resort could be had to
such techniques.
Other Provincial Powers Over Works ‑‑
Section 92A
The appellants also
sought to argue that the works described in s. 92(10) (c) did not extend
to works specifically mentioned in other provisions of the Constitution. As Iacobucci
J. has observed, this involves interpreting the Constitution as consisting of
logic type compartments. The Constitution must, rather, be interpreted as an
organic instrument. I accept my colleague's conclusion that s. 92(10) (c)
extends to works created under other headings in s. 92 , and s. 92A cannot be
considered any different in this respect. Provisions granting legislative
powers placed in separate sections to provide for qualifications to those
powers should be treated, subject of course to those qualifications, in the
same way; see Reference re Bill 30, An Act to amend the Education Act (Ont.),
[1987] 1 S.C.R. 1148, per Estey J. (Beetz J. concurring), at p. 1201.
As will be seen, I agree with Iacobucci J. as well that s. 92A does not have the
effect of removing from the ambit of Parliament's authority works declared to
be for the general advantage of Canada. Where I differ from my colleague is
with his view of the nature of the power accorded to the provinces by s.
92A(1) (c) to legislate in relation to the development, conservation and management
of sites and facilities in the province for the generation of electrical
energy.
It must be
confessed that s. 92A(1) , including para. (c), do not, at least at first
sight, appear to add much to the broad and general catalogue of provincial
powers; see P. W. Hogg, Constitutional Law of Canada (3rd ed. 1992),
vol. 1, at p. 29-19. So it is tempting to seek additional meaning from the
provision. It may be, however, that s. 92A(1) is merely preliminary to the
provisions that follow, although, as I will indicate, it, at a minimum,
fortifies the pre-existing provincial powers. There is reason to think this
was one of its major goals.
To understand the
situation, it is useful to examine the backdrop against which s. 92A was
passed. In a general sense, the interventionist policies of the federal authorities
in the 1970s in relation to natural resources, particularly oil and other
petroleum products, were a source of major concern to the provinces. These
concerns were by no means minimized by cases such as Canadian Industrial Gas
& Oil Ltd. v. Government of Saskatchewan, [1978] 2 S.C.R. 545, and Central
Canada Potash Co. v. Government of Saskatchewan, [1979] 1 S.C.R. 42, which
underlined the severe limits on provincial power over resources that are mainly
exported out of the province, as well as on the provincial power to tax these
resources.
It was to respond
to this insecurity about provincial jurisdiction over resources ‑‑
one of the mainstays of provincial power ‑‑ that s. 92A was
enacted. Section 92A(1) reassures by restating this jurisdiction in
contemporary terms, and the following provisions go on, for the first time, to
authorize the provinces to legislate for the export of resources to other
provinces subject to Parliament's paramount legislative power in the area, as
well as to permit indirect taxation in respect of resources so long as such
taxes do not discriminate against other provinces.
Most commentators
mention only these issues in describing the background against which s. 92A was
enacted, but there were others, specifically in relation to the generation,
production and exporting of electrical energy, that must have been seen as a
threat to provincial autonomy in these areas. In most of the provinces, at
least, the generation and distribution of electrical energy is done by the same
undertaking. There is an integrated and interconnected system beginning at the
generating plant and extending to its ultimate destination. There was
authority that indicated that even an emergency interprovincial grid system
might effect an interconnection between utilities sufficient to make the whole
system a work connecting or extending beyond the province, and so falling
within federal jurisdiction within the meaning of s. 92(10) (a) of the Constitution
Act, 1867 ; see British Columbia Power Corp. v. Attorney-General of
British Columbia (1963), 44 W.W.R. 65 (B.C.S.C.). More important,
provincial power commissions supply electrical energy to other provinces and
the United States on "a regular and continuing basis", which a number
of cases in other areas have held to be sufficient to make an integrated
undertaking fall within federal legislative competence; see, for example, Re
Tank Truck Transport Ltd. (1960), 25 D.L.R. (2d) 161 (Ont. H.C.), aff'd
[1963] 1 O.R. 272 (C.A.). There was danger, then, that at least the supply
system and conceivably the whole undertaking, from production to export, could
be viewed as being a federal undertaking. For a discussion of these problems
as they appeared in the period preceding the enactment of s. 92A , see G. V. La Forest
and Associates, Water Law in Canada (1973), at pp. 46 et seq.,
esp. at pp. 50-51, 53-56. While a number of commentators, including myself,
did not share this view of the law, the result on the authorities was by no
means certain. The express grant of legislative power over the development of
facilities for the generation and production of electrical energy (s. 92A(1) (c)),
coupled with the legislative power in relation to the export of electrical
energy offers at least comfort for the position that, leaving aside other heads
of power, the development, conservation and management of generating facilities
fall exclusively within provincial competence. The nature of provincial
electrical generating and distribution systems at the time of the passing of s.
92A must have been appreciated.
What is important
to note is that the danger to provincial autonomy over the generation of
electrical energy did not arise out of the discretion Parliament had or might
in future exercise under its declaratory power. The danger, rather, lay in the
possible transformation of these enterprises into purely federal undertakings
by reason of their connection or extension beyond the province. Section 92A
ensures the province the management, including the regulation of labour
relations, of the sites and facilities for the generation and production of
electrical energy that might otherwise be threatened by s. 92(10) (a).
But I cannot believe it was meant to interfere with the paramount power vested
in Parliament by virtue of the declaratory power (or for that matter
Parliament's general power to legislate for the peace, order and good
government of Canada) over "[a]ll works and undertakings constructed for
the production, use and application of atomic energy". This, as already
seen, comprises the management of these facilities, displacing any management
powers the province might otherwise have had under s. 92A . And a vital part of
the power of management is the power to regulate labour relations.
Peace, Order and Good Government
This case can
equally well be disposed of under Parliament's power to legislate over matters
of national concern under the peace, order and good government clause in s. 91
of the Constitution Act, 1867 . There can surely be no doubt that the
production, use and application of atomic energy constitute a matter of
national concern. It is predominantly extra-provincial and international in
character and implications, and possesses sufficiently distinct and separate
characteristics to make it subject to Parliament's residual power; see Reference
re Anti-Inflation Act, [1976] 2 S.C.R. 373, and R. v. Crown Zellerbach
Canada Ltd., [1988] 1 S.C.R. 401. No one seriously disputed this
assertion, and my colleagues both agree that this is so. The view of the
Attorney General of Canada is supported by authority in the lower courts; see Pronto
Uranium Mines Ltd. v. Ontario Labour Relations Board, [1956] O.R. 862
(H.C.), at p. 869; and Denison Mines Ltd. v. Attorney-General of Canada,
[1973] 1 O.R. 797 (H.C.), at p. 808. The strategic and security aspects of
nuclear power in relation to national defence and the catastrophe and near
catastrophe associated with its peaceful use and development at Chernobyl and
Three Mile Island bespeak its national character and uniqueness.
The appellants, we
saw, argue, however, that the distinct aspects over which atomic energy rises
to the national level are those concerned with health and safety. But this
very argument is self-defeating. With the inherent potential dangers
associated with nuclear fission, industrial safety ‑‑ indeed the
safety of people hundreds of miles from a nuclear facility ‑‑ is
necessarily dependant on the personnel who operate the facility. A strike, and
indeed mere carelessness, could invite disaster. As the Attorney General of
Canada put it: "The whole purpose of federal regulation of nuclear
electrical generating plants would be frustrated if Parliament could not govern
the standards and conditions for employment of the individuals who operate the
plant, both for their own safety, and for that of the general public."
Quite apart from
this doomsday scenario, what was said in the context of a work subject to the
declaratory power applies equally to a work over which Parliament has
jurisdiction under its general power in relation to matters of national
concern. Labour relations are an integral part of that jurisdiction. I
observe that this approach had been adopted in Pronto, supra.
I add that what I
have had to say about the relationship of nuclear facilities to various
provincial legislative powers, including those arising out of s. 92A of the Constitution
Act, 1867 , fully applies here.
Provincial Instrumentality
Finally, the
appellant Ontario Hydro advanced the notion that federal legislation should be
so interpreted as not to apply to corporations set up to advance a provincial
purpose. It conceded, however, that it was not a Crown agent and so not
entitled to Crown immunity in the traditional sense. The Attorney General for
New Brunswick did, however, argue that Crown immunity should apply where Crown
agency is established. It is, therefore, right to say that the latter argument
cannot stand in view of my holding that provincial laws regarding labour
relations are inapplicable to works falling within the exclusive legislative
jurisdiction of Parliament, since such legislation falls within the core of
that jurisdiction.
Turning to Ontario
Hydro's argument about provincial instrumentalities, I note that a similar
argument was advanced by Alberta in relation to a "provincial
project", the Oldman River Dam; see Friends of the Oldman River Society
v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 63, 68-69.
The Court rejected this contention, which it branded as not particularly
helpful in sorting out constitutional authority over the work and as positing a
type of interjurisdictional immunity that had earlier been rejected in Alberta
Government Telephones v. Canada (Canadian Radio-television and
Telecommunications Commission), [1989] 2 S.C.R. 225, at p. 275. Similar
considerations apply here. The fallacy in this context appears to result from
the failure to recognize labour relations as vital aspects of the management of
nuclear facilities, for no similar argument is made in respect of regulations
under the Atomic Energy Control Act.
Disposition
I would dismiss the
appeals and confirm the order of the Court of Appeal reinstating the decision
of the Ontario Labour Relations Board, and declaring that the Canada Labour
Code applies to employees of Ontario Hydro who are employed on or in
connection with nuclear facilities that come under s. 18 of the Atomic
Energy Control Act. I would make no order as to costs.
The reasons of
Sopinka, Cory and Iacobucci JJ. were delivered by
Iacobucci
J. (dissenting) -- The
question in these appeals is whether the Ontario Labour Relations Act,
R.S.O. 1990, c. L.2, or the Canada Labour Code, R.S.C., 1985, c. L-2 ,
constitutionally applies to govern labour relations between Ontario Hydro and
those of its employees who are employed in Ontario Hydro's nuclear electrical
generating stations. Although technically there are two appeals involved, in
substance there is only one and so I refer herein to both as "the
appeal".
I. Facts
Ontario Hydro is a
corporation owned by the province of Ontario and no one disputes that it is not
a Crown agent. Its affairs are governed by the Power Corporation Act,
R.S.O. 1990, c. P.18. Ontario Hydro has 81 electrical generating stations of
which five are nuclear electrical generating stations. These five nuclear
plants provide roughly 48 percent of Ontario Hydro's total electrical power
generating capacity. Power is generated in the nuclear stations by way of
CANDU reactors which, through the process of nuclear fission, produce enough
energy to drive the facilities' turbines. Once generated, this power (along
with that originating from thermal and hydraulic generating stations) is
distributed throughout the province by way of a network of transformer and
distribution stations. Plutonium, deuterium and deuterium oxide, cobalt-60,
and tritium and tritium oxide are produced during the electricity generating
process: these substances are all prescribed under the Atomic Energy
Control Act, R.S.C., 1985, c. A-16 .
The operation of a
nuclear reactor is heavily regulated by federal legislation. Section 18 of the
Atomic Energy Control Act declares that all works and undertakings
constructed for the production of atomic energy and the production of
prescribed substances are works for the general advantage of Canada. Each of
Ontario Hydro's CANDU reactors is covered by a licence issued by the Atomic
Energy Control Board ("AECB") under the regulations made under the Atomic
Energy Control Act. These licences impose requirements with respect to the
way Ontario Hydro operates the facilities, Ontario Hydro's radiation protection
measures and emergency procedures, and the measures taken regarding the
physical security of fissionable prescribed substances and of the facilities
themselves. The licences also dictate minimum staffing levels in the control
rooms, require written AECB approval of certain staff positions in the
facilities (including those in positions affected by the application for
certification which initiated the present action), and prescribe that
significant staffing and organizational changes in the facilities require prior
notice to and the written permission of the AECB. Notwithstanding the
declaration in s. 18 of the Atomic Energy Control Act, some employees at
Ontario Hydro's Bruce nuclear plant have been unionized under provincial labour
legislation since 1973.
This case arose
when the Society of Ontario Hydro Professional and Administrative Employees
("Society") applied under the Ontario Labour Relations Act to
the Ontario Labour Relations Board ("OLRB") for certification as the
exclusive bargaining agent for a unit of administrative, scientific and
professional engineering employees of Ontario Hydro, including those employed
at Ontario Hydro's nuclear plants. The application was challenged by a group
of employees calling themselves the Coalition to Stop the Certification of the
Society. One of the grounds for the challenge was that the OLRB was without
jurisdiction to certify the proposed bargaining unit because some of the
employees within the proposed unit, viz. those who worked at Ontario Hydro's
nuclear generating stations and at the construction site for the nuclear
generating station at Darlington, fall under the jurisdiction of the Canada
Labour Code . The Coalition claimed that the declaration in s. 18 of the Atomic
Energy Control Act, combined with ss. 91(29) and 92(10) (c) of the Constitution
Act, 1867 , brought Ontario Hydro's nuclear generating stations within
exclusive federal jurisdiction with respect to labour relations because s. 4 of
the Canada Labour Code declares the Code applicable to all persons
employed on or in connection with a federal work.
The OLRB held
hearings to determine whether or not it had jurisdiction to include in the
proposed bargaining unit a category of employees definable by reference to s.
18 of the Atomic Energy Control Act. The Attorneys General of Canada
and Ontario declined to participate in these hearings but the Canadian Union of
Public Employees ("CUPE"), which was then certified as the bargaining
agent for all unionized employees of Ontario Hydro including employees at the
Bruce nuclear plant, participated with the consent of the parties. The OLRB
held that it had no jurisdiction to certify the bargaining unit in the
Society's application because the proposed unit included employees, employed on
or in connection with the nuclear generating stations, who fell under the
jurisdiction of the Canada Labour Code : [1988] OLRB Rep. Feb. 187.
Ontario Hydro,
supported by the Society and CUPE, applied to the Ontario Divisional Court for
judicial review by way of an order in the nature of certiorari quashing
this decision of the OLRB; the Attorney General of Canada intervened at this
stage of the proceedings in support of the OLRB. The Divisional Court granted
the application for certiorari, quashed the OLRB's decision, and issued
mandamus ordering the OLRB to deal with the Society's certification
application: (1989), 69 O.R. (2d) 268, 33 O.A.C. 302, 60 D.L.R. (4th) 542, 89
CLLC {PP} 14,044.
The Attorney
General of Canada appealed that decision to the Ontario Court of Appeal. The
Court of Appeal, Galligan J.A. dissenting, allowed the appeal, set aside the
decision of the Divisional Court and ordered that the decision of the OLRB be
reinstated: (1991), 1 O.R. (3d) 737, 43 O.A.C. 184, 77 D.L.R. (4th) 277, 91
CLLC {PP} 14,014 (hereinafter cited to O.R.). This Court granted leave to
appeal, [1991] 3 S.C.R. x, and the Chief Justice stated the following
constitutional question:
Does the Labour Relations Act of Ontario,
R.S.O. 1980, c. 228 [now R.S.O. 1990, c. L.2], or the Canada Labour Code,
R.S.C., 1985, c. L-2 , constitutionally apply to the matter of labour relations
between Ontario Hydro and those of its employees who are employed in Ontario
Hydro's nuclear electrical generating stations which have been declared to be
for the general advantage of Canada under s. 18 of the Atomic Energy Control
Act, R.S.C., 1985, c. A-16 ?
II. Relevant
Legislation and Constitutional Provisions
Atomic Energy Control Act, R.S.C., 1985, c. A-16
Whereas it is essential in the national interest to make
provision for the control and supervision of the development, application and
use of atomic energy and to enable Canada to participate effectively in
measures of international control of atomic energy that may hereafter be agreed
on;
.
. .
18. All works and undertakings
constructed
(a)
for the production, use and application of atomic energy,
(b)
for research or investigation with respect to atomic energy, and
(c)
for the production, refining or treatment of prescribed substances,
are,
and each of them is declared to be, works or a work for the general advantage
of Canada.
Canada Labour Code, R.S.C., 1985, c. L-2
2. In this Act,
"federal
work, undertaking or business" means any work, undertaking or business
that is within the legislative authority of Parliament, including, without
restricting the generality of the foregoing,
.
. .
(h) a work or undertaking that, although
wholly situated within a province, is before or after its execution declared by
Parliament to be for the general advantage of Canada or for the advantage of
two or more of the provinces, and
(i)
a work, undertaking or business outside the exclusive legislative authority of
the legislatures of the provinces;
.
. .
4.
This Part applies in
respect of employees who are employed on or in connection with the operation of
any federal work, undertaking or business, in respect of the employers of all
such employees in their relations with those employees and in respect of trade
unions and employers' organizations composed of those employees or employers.
Constitution Act, 1867
91. It shall be lawful for the Queen, by
and with the Advice and Consent of the Senate and House of Commons, to make
Laws for the Peace, Order, and good Government of Canada, in relation to all
Matters not coming within the Classes of Subjects by this Act assigned
exclusively to the Legislatures of the Provinces; and for greater Certainty,
but not so as to restrict the Generality of the foregoing Terms of this
Section, it is hereby declared that (notwithstanding anything in this Act) the
exclusive Legislative Authority of the Parliament of Canada extends to all
Matters coming within the Classes of Subjects next herein‑after
enumerated; that is to say,--
.
. .
29.
Such Classes of Subjects as are expressly excepted in the Enumeration of the
Classes of Subjects by this Act assigned exclusively to the Legislatures of the
Provinces.
And any Matter coming within any of the Classes
of Subjects enumerated in this Section shall not be deemed to come within the
Class of Matters of a local or private Nature comprised in the Enumeration of
the Classes of Subjects by this Act assigned exclusively to the Legislatures of
the Provinces.
92. In each Province the Legislature may
exclusively make Laws in relation to Matters coming within the Classes of
Subjects next herein-after enumerated; that is to say,--
.
. .
10.
Local Works and Undertakings other than such as are of the following Classes:--
.
. .
c. Such Works as, although wholly
situate within the Province, are before or after their Execution declared by
the Parliament of Canada to be for the general Advantage of Canada or for the
Advantage of Two or more of the Provinces.
.
. .
13.
Property and Civil Rights in the Province.
.
. .
16.
Generally all Matters of a merely local or private Nature in the Province.
92A. (1) In each province, the legislature
may exclusively make laws in relation to
.
. .
(c)
development, conservation and management of sites and facilities in the
province for the generation and production of electrical energy.
.
. .
(6)
Nothing in subsections (1) to (5) derogates from any powers or rights that a
legislature or government of a province had immediately before the coming into
force of this section.
III. Judgments
Below
Ontario Labour
Relations Board
The OLRB held that
by virtue of ss. 92(10) (c) and 91(29) of the Constitution Act, 1867 ,
Parliament has exclusive legislative authority over local works it declares to
be to the general advantage of Canada. Such a declaration, applicable to
Ontario Hydro's nuclear generating stations, had been made in s. 18 of the Atomic
Energy Control Act. Counsel for Ontario Hydro argued that Ontario Hydro
was an undertaking and not a work constructed for any of the purposes set out
in s. 18 . The OLRB held that a work used by and forming part of an undertaking
can be the object of a declaration under s. 92(10) (c). When Parliament
makes such a declaration, its jurisdiction over the work extends to the
regulation of the use and management of the work forming part of the undertaking
(relying on The King v. Eastern Terminal Elevator Co., [1925]
S.C.R. 434).
The OLRB rejected
Ontario Hydro's argument that Parliament only has jurisdiction to make laws
with respect to matters of national interest in a work declared to be to the
general advantage of Canada: Ontario Hydro's position on this matter was
inconsistent with the preamble to s. 91 of the Constitution Act, 1867
which expressly gives Parliament legislative jurisdiction to all matters in the
enumerated classes of subjects, including s. 91(29) . Ontario Hydro argued that
s. 92A excludes federal jurisdiction over labour relations because such
jurisdiction would conflict with the power of the provinces to
"manage" electrical generating facilities: the OLRB held that s. 92A
has no special place in the Constitution Act, 1867 and accordingly must
be read in light of s. 91 which gives Parliament exclusive jurisdiction over
matters coming within the classes of subjects enumerated in s. 91
"notwithstanding anything in this Act".
The
OLRB held that the declaration made in s. 18 of the Atomic Energy Control
Act was valid and proper with respect to Ontario Hydro's nuclear generating
facilities. There was no basis for Ontario Hydro's argument that s. 92(10) (c)
declarations cannot extend to matters within s. 92A(1) , or that a declaration
may only be made with respect to matters falling solely within s. 92(10) (c):
given the wide scope of matters within s. 92 , such as property and civil
rights, this argument would totally neutralize the s. 92(10) (c)
declaratory power. Further, nothing in s. 92A(1) repealed or neutralized the
declaration in s. 18 of the Atomic Energy Control Act. Accordingly, the
federal government had authority to legislate with respect to Ontario Hydro's
labour relations with persons employed on or in connection with the nuclear
generating facilities. The OLRB declared that it did not have jurisdiction to
deal with the Society's application for certification since the proposed unit
included employees who fell within federal labour law jurisdiction.
Divisional Court (per Steele, Montgomery and
White JJ.)
The Divisional
Court held that the special provision for electrical generating facilities in
s. 92A removed those facilities from the category of works contemplated by s.
92(10) (c). "Such Works" in s. 92(10) (c) can only refer
to local works and undertakings contemplated to be within s. 92(10) . This
expression cannot refer to a power specifically granted to a province in s.
92A . Section 92A(1) (c) was enacted after the Atomic Energy Control
Act and Parliament must be deemed to have known that it was placing the
generation and production of electrical energy within the jurisdiction of the
provinces. Therefore, s. 18 of the Atomic Energy Control Act is
inapplicable in so far as it purports to declare Ontario Hydro's works to be
totally for the general advantage of Canada.
The Divisional
Court held that Parliament had the jurisdiction to enact the Atomic Energy
Control Act in the national interest under the peace, order and good
government power ("p.o.g.g. power") in the opening words of s. 91 of
the Constitution Act, 1867 . Parliament's p.o.g.g. power is residuary in
nature and should be read together with the specific power in s. 92A(1) (c)
not to exclude provincial jurisdiction except where absolutely necessary. Even
where there is a conflict between s. 91 and s. 92 , the doctrine of mutual
modification holds that the general power should be narrowed to exclude the
narrower class of subjects.
The Divisional
Court also held that, under the double aspect doctrine, the federal p.o.g.g.
power does not necessarily exclude provincial power over labour relations. The
pith and substance of the Atomic Energy Control Act and the regulations
passed under it, is not the management or labour relations of a facility.
Section 92A(1) (c) gives the provinces the exclusive power to manage
facilities for electrical energy; the provinces therefore have the power to
legislate with respect to labour relations at those facilities. The Atomic
Energy Control Act imposes aspects of Parliament's concerns that must be
obeyed with respect to the works but this does not totally exclude provincial
jurisdiction where the core undertaking is clearly provincial. The Divisional
Court distinguished the decision of this Court in Bell Canada v. Quebec
(Commission de la santé et de la sécurité du travail), [1988] 1 S.C.R. 749
("Bell Canada"), since that case concerned a federal
undertaking. Accordingly, under the double aspect doctrine, provincial labour
legislation is applicable to the employees who work at the sites in question.
The Divisional
Court held that Ontario Hydro is not a federal work or undertaking; therefore
the Canada Labour Code does not apply according to the scope of the
statute set out in s. 4 . Further, Ontario Hydro is a "provincial public
policy instrument" to which the statute should not be interpreted to
apply. Only if Parliament validly amended the Atomic Energy Control Act
to provide that it was in the national interest that all labour relations at
nuclear generating sites be governed by federal legislation would provincial
labour legislation be supplanted. The Divisional Court noted finally that the
licence for the Bruce nuclear facility, which is representative of the licences
issued to all of Ontario Hydro's nuclear generating sites, indicates that all
general laws of the province are applicable to the facility, subject to the
conditions of the licence. The Ontario labour legislation is a law of general
application in the province and can stand together with the federal
requirements for health, safety and security.
The Divisional
Court ordered that the decision of the OLRB be quashed and directed the OLRB to
deal with the Society's certification application.
Ontario Court of Appeal
Tarnopolsky J.A.
(Lacourcière J.A. concurring)
Tarnopolsky J.A.
indicated that there were two issues before the court. First, did the
enactment of s. 92A remove electrical facilities from the category of works
contemplated by s. 92(10) of the Constitution Act, 1867 , rendering the
declaration in s. 18 of the Atomic Energy Control Act inapplicable to
Ontario Hydro's nuclear generating facilities? Second, even if s. 18 does
apply to Ontario Hydro's nuclear generating facilities, does Parliament's power
extend to the labour relations of the employees of those facilities?
With respect to the
first issue, Tarnopolsky J.A. held that the provincial legislative powers in s.
92A cannot be exercised to the exclusion of other federal powers. This view
was supported by academic commentators and the pertinent proceedings of the
Special Joint Committee on the Constitution. The Divisional Court erred in not
distinguishing between activities concerning facilities for the generation of
electricity (i.e., development, conservation and management) and the character
or nature of those facilities (i.e., being local works). The wording of s. 92A
fails to support the conclusion that electrical facilities were removed from
the category of works contemplated by s. 92(10) (c).
Further,
Tarnopolsky J.A. held that to accept that the federal declaratory power is an
exception only to the provincial legislative authority over local works and
undertakings in s. 92(10) would result in an absurdity. The jurisdictional
basis of a matter over which a province has legislative competence may arise
from any number of heads of power; there is no authority for the claim that
legislative competence over a particular subject matter must be founded on or
restricted to one head of provincial power. Tarnopolsky J.A. continued (at p.
760):
. .
. I would endorse the finding of the OLRB that, if the declaratory power refers
to local works or undertakings only, then s. 92 {PP} 16 --
"Generally all Matters of a merely local or private Nature in the
Province" -- would neutralize Parliament's power to declare anything to be
for the general advantage of Canada, for undoubtedly a local work could
reasonably be found to be a matter of a local or private nature in the
province. It is that absurdity which must be avoided. [Emphasis in original.]
Section 92A must be
read in light of s. 91 using the doctrine of mutual modification, i.e., the
provincial power in s. 92A should not be read to exclude the federal power in
s. 92(10) (c) and s. 91(29) where the two powers can co-exist. Moreover,
Parliament may touch on those classes of subjects assigned exclusively to the
provinces under a valid exercise of its legislative powers.
Works or
undertakings declared to be to the general advantage of Canada are withdrawn
from provincial legislative competence through the operation of s. 92(10) (c)
and s. 91(29) . Since there is nothing to indicate that works within s. 92A
were removed from the class of works in s. 92(10) , there is nothing to preclude
the declaration in s. 18 of the Atomic Energy Control Act from applying
to Ontario Hydro's nuclear facilities. The declaration has the effect of
granting Parliament control over these works. That control includes the power
to regulate the operation of the work, including the employment of persons
employed on such works (in this regard, Tarnopolsky J.A. relied on the decision
of this Court in Bell Canada, supra).
Even if s. 92A
removed electrical generating works from s. 92(10) , Parliament could validly
exercise jurisdiction over Ontario Hydro's nuclear generating facilities using
its p.o.g.g. power from the opening words of s. 91 . Section 92A does not
detract from the scope of Parliament's authority under the p.o.g.g. power.
Tarnopolsky J.A. held that "the regulation of atomic energy, as a matter
of national concern, must include the labour relations of Ontario Hydro's
nuclear facilities, in spite of the practical difficulties that may be
encountered as a result of this decision" (p. 764).
Tarnopolsky J.A.
concluded (at p. 768):
In
conclusion, Ontario Hydro's nuclear facilities are works that, although wholly
situate within a province, are declared by Parliament to be for the general
advantage of Canada within the meaning of s. 2(h) of the Labour Code.
As indicated above, by s. 4 Parliament has expressly made the Labour Code
applicable to all employees who are employed upon or in connection with such
works as defined in s. 2. Ontario Hydro's nuclear workers, accordingly, must
be governed by the federal Labour Code.
Galligan
J.A., dissenting
Galligan J.A. felt
that, according to the testimony of Arvo Niitenberg, Ontario Hydro's Senior
Vice-President of Operations, the division of labour relations between two
separate jurisdictions would cause Ontario Hydro serious practical
difficulties. This result was to be avoided unless the Constitution required
it. Galligan J.A. held that it was not necessary to decide whether federal
jurisdiction over the nuclear generating sites arose from the federal
declaratory power or from the federal p.o.g.g. power. He set out the issue in
the case as follows (at p. 771):
Because
Parliament has exclusive authority to regulate atomic energy it is not
contested that it has power to regulate Hydro's five nuclear generating sites.
The issue is whether, because of that authority it also has power, to the
exclusion of the province, to regulate Hydro's labour relations with its
employees working on or in connection with those generating stations.
Galligan J.A.
distinguished this Court's trilogy on the interrelation of provincial statutes
of general application with federal statutes regulating enterprises which come
within Parliament's exclusive legislative sphere (Bell Canada, supra;
Canadian National Railway Co. v. Courtois, [1988] 1 S.C.R.
868, and Alltrans Express Ltd. v. British Columbia (Workers'
Compensation Board), [1988] 1 S.C.R. 897) on the ground that the
undertakings in those cases were truly federal while Ontario Hydro is a
provincial undertaking: "Only part of one of its many activities is
within the federal sphere of legislative competence" (p. 772). He
continued (at p. 773):
I
think the principle to be drawn from the treatment of this subject in the
trilogy is that a class of subject-matter within the exclusive legislative
competence of Parliament will be held to include labour relations if labour
relations is an integral part, an essential part or a vital part, of the
exercise of that jurisdiction. To apply that principle to this case, I think
that, if labour relations is an integral, essential or vital part of the power
to regulate atomic energy at Hydro's nuclear generating sites, then the
exception to the general rule of provincial power over labour relations would
apply.
Galligan J.A.
concluded that no evidence had been led to demonstrate that labour relations
were such an integral part of the regulation of atomic energy. Indeed, since
the federal government had not controlled labour relations at Ontario Hydro's
nuclear generating sites to date, there was evidence that labour relations were
not such an integral part of the regulation of atomic energy. For the same
reason that labour relations of a federal undertaking must be regulated
federally, the labour relations of a provincial undertaking should be regulated
provincially. Therefore there was no reason to apply the exception to the
general rule that labour relations fall within the exclusive jurisdiction of
the provincial legislatures: ". . . if the provincial law does not bear
on the specifically federal nature of the federal exercise of power the rule
excluding application of the provincial law does not apply" (pp. 774-75).
The doctrine of
federal paramountcy does not apply where there is no conflict between the two
statutes (Commission de transport de la Communauté urbaine de Québec v. Canada
(National Battlefields Commission), [1990] 2 S.C.R. 838). Galligan J.A.
was disinclined to interpret the statutes so as to create a conflict where they
had been applied together without conflict for 25 years. While the licences
issued by the AECB to Ontario Hydro's nuclear generating facilities contained
provisions relating to the staffing of those stations, there was no
demonstrated conflict between these provisions and Ontario Hydro's labour
relations with its employees. Galligan J.A. would have dismissed the appeal
and affirmed the order of the Divisional Court.
IV. The
Constitutional Question
Does
the Labour Relations Act of Ontario, R.S.O. 1980, c. 228 [now R.S.O.
1990, c. L.2], or the Canada Labour Code, R.S.C., 1985, c. L-2 ,
constitutionally apply to the matter of labour relations between Ontario Hydro
and those of its employees who are employed in Ontario Hydro's nuclear
electrical generating stations which have been declared to be for the general
advantage of Canada under s. 18 of the Atomic Energy Control Act,
R.S.C., 1985, c. A-16 ?
V. Issues
The constitutional
question raises the following issues:
1.
What are the nature and effect of the federal declaratory power?
2.May
Parliament validly make declarations under s. 92(10) (c) of the Constitution
Act, 1867 with respect to nuclear electrical generating stations over which
the provinces enjoy jurisdiction in the areas of development, conservation and
management by virtue of s. 92A(1) (c) of the Constitution Act, 1867 ?
3.Does
a valid declaration by Parliament under s. 92(10) (c) of the Constitution
Act, 1867 over nuclear electrical generating stations give Parliament
jurisdiction over the labour relations of employees employed in those stations?
4.If
Parliament's jurisdiction over nuclear electrical generating stations derives
solely from the peace, order and good government clause of s. 91 of the Constitution
Act, 1867 , does that jurisdiction include the labour relations of employees
employed in those stations?
5.Is
Ontario Hydro immune from the operation of the Canada Labour Code by
virtue of interjurisdictional Crown immunity?
VI. Analysis
1. What are the nature and effect
of the federal declaratory power?
(a) History of
the Declaratory Power
The first
appearance of a declaratory power that was to be given to the federal
government was in the final Resolutions of the Quebec Conference of 1864. The
power was listed with the other specific heads of power of the federal
government and was worded as follows:
29.
The General Parliament shall have power to make Laws for the peace, welfare and
good Government of the Federated Provinces (saving the Sovereignty of England),
and especially Laws respecting the following subjects: --
.
. .
11.All
such works as shall, although lying wholly within any Province, be specially
declared by the Acts authorizing them to be for the general advantage.
In the final version of
the Constitution Act, 1867 , the declaratory power appeared as an
exception to the provincial power over local works and undertakings:
92. In each Province the Legislature may
exclusively make Laws in relation to Matters coming within the Classes of
Subjects next herein-after enumerated; that is to say,--
. . .
10.
Local Works and Undertakings other than such as are of the following Classes:--
...
c. Such Works as, although wholly
situate within the Province, are before or after their Execution declared by
the Parliament of Canada to be for the general Advantage of Canada or for the
Advantage of Two or more of the Provinces.
In its early years,
the declaratory power was used almost exclusively in relation to local
railways. The federal government began to make declarations regarding
electricity companies as well as telegraph and other communications companies
in the 1880s. The frequency of declarations, which was at its peak in the late
19th century, began to drop off in the early 20th century. The declaration
over atomic energy at issue in this case was passed in 1946. Since the 1960s,
the federal government has used the declaratory power only twice although old
declarations are still reenacted along with the originating legislation (see P.
W. Hogg, Constitutional Law of Canada (3rd ed. 1992), vol. 1, at pp.
22-15 to 22-16, and A. Lajoie, Le pouvoir déclaratoire du Parlement
(1969), at pp. 123-51).
(b) Nature of
the Declaratory Power
The federal
declaratory power, which is found in the combined operation of s. 92(10) (c)
and s. 91(29) of the Constitution Act, 1867 , is unique in the
constitutional division of powers. As Duff J. wrote for this Court in Reference
re Waters and Water-Powers, [1929] S.C.R. 200, at p. 220:
The
authority created by s. 92 (10c) is of a most unusual nature. It is an
authority given to the Dominion Parliament to clothe itself with jurisdiction
-- exclusive jurisdiction -- in respect of subjects over which, in the absence
of such action by Parliament, exclusive control is, and would remain vested in
the provinces. Parliament is empowered to withdraw from that control matters
coming within such subjects, and to assume jurisdiction itself. It wields an
authority which enables it, in effect, to rearrange the distribution of
legislative powers effected directly by the Act, and, in some views of the
enactment, to bring about changes of the most radical import, in that distribution;
and the basis and condition of its action must be the decision by Parliament
that the "work or undertaking" or class of works or undertakings
affected by that action is "for the general advantage of Canada," or
of two or more of the provinces; which decision must be evidenced and
authenticated by a solemn declaration, in that sense, by Parliament itself.
Professor Hogg, supra,
has also noted the exceptional nature of the federal declaratory power (at p.
22-17):
[T]he
federal Parliament's power under s. 92(10) (c) is in conflict with classical
principles of federalism because it enables the federal Parliament, by its own
unilateral act, to increase its own powers and diminish those of the provinces.
Former Chief Justice
Bora Laskin referred to the federal declaratory power as
"extraordinary" (see Laskin's Canadian Constitutional Law (5th
ed. 1986), vol. 1, at p. 627). The uniqueness of the federal declaratory power
lies in Parliament's ability to decide to assume jurisdiction over a work which
would normally be within exclusive provincial jurisdiction.
How is this
extraordinary power to be exercised by the federal Parliament? First,
Parliament must make an explicit declaration that the work is for the general advantage
of Canada, or of two or more provinces. Whether or not a work is for the
general advantage of Canada is a policy decision of Parliament which will not
normally be reviewed by the courts.
In The Queen v.
Thumlert (1959), 20 D.L.R. (2d) 335, the Alberta Court of Appeal indicated
that the doctrine of colourability provides a limitation to the exercise of the
declaratory power. However, as one commentator has argued:
[B]ecause
of the very nature of the declaratory power, it is doubtful whether the
doctrine of colourability would apply to it. The very purpose of s. 92(10) (c)
is to extend federal jurisdiction into what otherwise would be the provincial
field. Therefore the mere fact that by the declaration the federal Parliament
intends to vest in itself jurisdiction over works which otherwise would be
within provincial jurisdiction cannot itself be cause for complaint . . . .
(K.
Hanssen, "The Federal Declaratory Power Under the British North America
Act" (1968-69), 3 Man. L.J. 87, at p. 103.)
Hanssen suggested
that the only limit on Parliament's exercise of the declaratory power would be
a narrow version of colourability, namely proof that Parliament had acted in
bad faith in making a declaration. However, the Court does not need to decide
for the purposes of the present appeal whether or not some form of the doctrine
of colourability provides a limit on the federal declaratory power.
What may Parliament
make the subject of a declaration under s. 92(10) (c) of the Constitution
Act, 1867 ? Section 92(10) (c) refers to "Works" which
stands in contrast to the reference in s. 92(10) (a) to "Works and
Undertakings". This distinction would appear on its face to limit the
federal declaratory power to works or tangible things and to exclude
undertakings from the operation of the power. However, Parliament has on
occasion declared undertakings to be works for the general advantage of
Canada. This Court upheld one such declaration in Quebec Railway Light
& Power Co. v. Town of Beauport, [1945] S.C.R. 16, which concerned a
federal declaration that the undertaking of a company was a work to the general
advantage of Canada. Both Rand J. and Hudson J. (who dissented in the result)
recognized the validity of the declaration without any explicit discussion thereof.
Rinfret J. was of the opinion that the declaration was meant to bring "the
whole of the works of the company" within the declaration (p. 24). Davis
J., who dissented in the result of the case, agreed with Rinfret J. and wrote
as follows (at p. 29):
It
seems to me that the word "undertaking" there used involves the
totality of the works of the company and that the effect of the statute was
that they were declared to be for the general advantage of Canada. Such a
declaration was within the competence of the Dominion Parliament when the
meaning and scope of the statute is fairly construed.
Kerwin J. held at p. 32 that "no
more extended meaning than the word `works' [in s. 92(10) (c)] bears on
its proper construction may be ascribed to the word `undertaking' in section 1
of the 1895 Act".
The line of
reasoning that "undertaking" in a federal declaration refers only to
the totality of a company's works is thrown into doubt by other federal
declarations, such as that found in s. 35 of the Cape Breton Development
Corporation Act, R.S.C., 1985, c. C-25 , which declared the "works and
undertakings operated or carried on" by various coal mining and railway
companies on Cape Breton Island to be works for the general advantage of
Canada. Decisions of this Court such as Commission du salaire minimum v.
Bell Telephone Co. of Canada, [1966] S.C.R. 767, have assumed that the
federal government can declare undertakings as undertakings to be works for the
general advantage of Canada.
Thus, Parliament
may validly declare an undertaking to be a work for the general advantage of
Canada. The outer limit of Parliament's power to declare undertakings to be
works for the general advantage of Canada is that the undertaking must be
linked to a work. As Rand J. stated in his partially dissenting opinion in Reference
re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529,
at p. 553, "Undertakings, existing without works, do not appear in 92(10)(c)
and cannot be the subject of such a declaration".
In my view,
"undertaking" refers to the whole of the enterprise within which a
work or works is or are situated. In this case, the undertaking is Ontario
Hydro. The undertaking is to be distinguished from the set of integrated
activities related directly to the work (here, the production of electricity
using nuclear power) and from the work itself (the electrical nuclear
generating facilities). In some respects, all undertakings for the purposes of
s. 92(10) (c) involve works but not all works may involve undertakings.
As I discussed
above, the declaratory power has been used most often with respect to local
railways. Other typical subjects of federal declarations include canals,
bridges, harbours, telephones, grain elevators and factories of various kinds.
Parliament has also made declarations with respect to national battlefields.
As Professor Hogg, supra, has noted (at p. 22-18):
It
appears, however, that the federal government and Parliament are sensitive to
the anomalous character of the power and are now inclined to use the power only
sparingly. It has been used very rarely in recent times.
(c) The
Effect of a Declaration
Having briefly
considered the background to and nature of the federal declaratory power and
how that power is exercised, one must deal with the most obvious question as to
the effect of a declaration that a work is to the general advantage of Canada.
To begin with, the Court has rejected the proposition that Parliament gains
jurisdiction over no more than the physical shell of a work when it makes a
declaration that a work is for the general advantage of Canada. In several
cases involving grain elevators, the Court has held that jurisdiction over
declared works includes jurisdiction to regulate the operations of declared
works. One example of this is Chamney v. The Queen, [1975] 2 S.C.R.
151, where Martland J. stated for the Court (at p. 159):
Having
concluded that the premises in question here are works declared to be for the
general advantage of Canada, it is clear that Parliament could control the
quantities of grain which could be received into an elevator and could enact s.
16(2) of the Canadian Wheat Board Act as a means of exercising control
over the work and that the appellant could properly be convicted of an offence
under that subsection.
Laskin, supra,
has described federal jurisdiction over declared works as follows (at pp.
628-29):
[T]he
result of a declaration of a "work" to be for the general advantage
of Canada must surely be to bring within federal authority not only the
physical shell or facility but also the integrated activity carried on therein;
in other words, the declaration operates on the work in its functional
character.
Contrary to the
holding of Desjardins J.A. in her concurring reasons in Shur Gain Division,
Canada Packers Inc. v. National Automobile, Aerospace and Agricultural
Implement Workers Union of Canada, [1992] 2 F.C. 3, at p. 34, Parliament's
legislative jurisdiction over a declared work is not "plenary". As
Beetz J. said for the Court in Bell Canada, supra, at p. 762:
[W]orks,
such as federal railways, things, such as land reserved for Indians, and
persons, such as Indians, who are within the special and exclusive jurisdiction
of Parliament, are still subject to provincial statutes that are general in
their application, whether municipal legislation, legislation on adoption,
hunting or the distribution of family property, provided however that the
application of these provincial laws does not bear upon those subjects in what
makes them specifically of federal jurisdiction . . . .
The Court
reaffirmed this principle in Commission de transport de la Communauté
urbaine de Québec v. Canada (National Battlefields Commission), supra,
where Gonthier J. wrote for the Court (at p. 853):
The
immunity pertaining to federal status applies to things or persons falling
within federal jurisdiction, some specifically federal aspects of which would
be affected by provincial legislation. This is so because these specifically
federal aspects are an integral part of federal jurisdiction over such things
or persons and this jurisdiction is meant to be exclusive.
It
is the fundamental federal responsibility for a thing or person that determines
its specifically federal aspects, those which form an integral part of the
exclusive federal jurisdiction over that thing or person.
As a result, when
the federal government makes a declaration under s. 92(10) (c) of the Constitution
Act, 1867 , that a work is to the general advantage of Canada, Parliament
obtains jurisdiction not only over the physical parts of the work but also over
those aspects of the operation of the work which makes the work specifically of
federal jurisdiction, i.e., those aspects of the work which make the work one
for the general advantage of Canada.
This limit on
Parliament's jurisdiction over a declared work is consistent with the
interpretation of the declaratory power as a "narrow and distinct"
power in order that the power not seriously encroach on provincial jurisdiction
(per Dickson C.J. in General Motors of Canada Ltd. v. City
National Leasing, [1989] 1 S.C.R. 641, at p. 671).
This limit is also
consistent with the traditional approach to division of powers questions which
has been one of balancing federal and provincial powers through the application
of doctrines such as mutual modification, double aspect and pith and
substance. The Constitution Act, 1867 set up a federalist system of
government for Canada and should be interpreted so as not to allow the powers
of either Parliament or the provincial legislatures to subsume the powers of
the other. As Henri Brun and Guy Tremblay have written:
[translation] The history of the birth of the federation, the
first "whereas" in the preamble to the Constitution Act, 1867
and, in particular, the usually exclusive division of powers contained therein
show clearly that the purpose of this Act was to establish a federal system.
That
is why, in numerous decisions, the courts have tried to protect the federal
foundations of the Canadian system. They have sought the maintenance of a
certain balance between the federal government and the provinces.
(Droit
constitutionnel (2nd ed. 1990), at p. 402.)
This Court
recognized the primacy of the balance between federal and provincial powers in Reference
re Resolution to Amend the Constitution, [1981] 1 S.C.R. 753, where the
Court held that a substantial measure of provincial consent was required by
convention before the Canadian Constitution could be amended. The majority
held that the reason for the convention was the federal principle (at pp.
905-6):
The
federal principle cannot be reconciled with a state of affairs where the
modification of provincial legislative powers could be obtained by the
unilateral action of the federal authorities.
While the use of the declaratory power
is not as dramatic as the unilateral amending of the Constitution, in my view
the federal principle should be respected nonetheless. Parliament's
jurisdiction over a declared work must be limited so as to respect the powers
of the provincial legislatures but consistent with the appropriate recognition
of the federal interests involved.
Confining
Parliament's jurisdiction over declared works within the sphere of those
aspects of the work which make the work of federal jurisdiction accords with
the jurisprudence on Parliament's other unusual power, the power to legislate
for the peace, order and good government of the country found in the preamble
to s. 91 of the Constitution Act, 1867 . The cases concerning the
p.o.g.g. power have developed a set of strict criteria which the federal
government must meet before it can exercise its residual authority. This
prevents the p.o.g.g. power from being abused to disturb the balance of
federalism. See, for example, the decision of this Court in R. v. Crown
Zellerbach Canada Ltd., [1988] 1 S.C.R. 401, which I will discuss below.
To
summarize, the federal declaratory power is unique in that under it, Parliament
may decide as a matter of policy to withdraw a work or an undertaking linked to
works from what would normally be provincial jurisdiction by declaring the work
or undertaking to be a work for the general advantage of Canada, or of two or
more provinces. Parliament's jurisdiction over a declared work is not plenary,
but extends only to those aspects of the work which make the work specifically
of federal jurisdiction. Put another way, Parliament obtains exclusive
jurisdiction to regulate those aspects of the work that are integral to the
federal interest in the work.
2.May
Parliament validly make declarations under s. 92(10) (c) of the Constitution
Act, 1867 with respect to nuclear electrical generating stations over which the
provinces enjoy jurisdiction in the areas of development, conservation and
management by virtue of s. 92A(1) (c) of the Constitution Act, 1867 ?
The parties do not
dispute that the combined effect of s. 92(10) (c) and s. 91(29) of the Constitution
Act, 1867 is to give the federal government the power to declare works to
be for the general advantage of Canada and to bring those works within the
exclusive jurisdiction of Parliament. Parliament has made an express
declaration in s. 18 of the Atomic Energy Control Act that all works and
undertakings constructed for the production, use and application of atomic
energy are works to the general advantage of Canada. It is not contested that
Ontario Hydro's nuclear electrical generating stations are works which by
definition fall within Parliament's declaration. However, Ontario Hydro and
CUPE submit that Parliament's declaration is not valid with respect to nuclear
electrical generating stations.
The argument of
Ontario Hydro and CUPE, which was accepted by the Divisional Court, is that
where identified types of works (such as electrical generating facilities) are
specifically assigned to the exclusive jurisdiction of the provinces, the
federal declaratory power cannot operate with respect to those works for two
reasons. First, the federal declaratory power is authorized only with respect
to local works under s. 92(10) which does not include local works which fall
under another head of s. 92 . Second, the federal declaratory power is a
general power which must be read narrowly to exclude those classes of subjects
which are assigned exclusively to the provincial legislatures.
With respect to the
first reason, the Ontario Court of Appeal rejected Ontario Hydro and CUPE's
argument that the declaratory power applies only to works which do not fall
within the terms of any other subject matter enumerated in s. 92 . The basis on
which the Ontario Court of Appeal rejected this argument was that it would
result in an absurdity since, for example, s. 92(16) gives the provinces
exclusive jurisdiction over all matters of a merely local or private nature in
the province. This would mean that the declaratory power could never be
exercised because s. 92(16) would prohibit its exercise. I find the response
of the Court of Appeal persuasive on this point. I would also point out that
the argument of Ontario Hydro and CUPE depends on construing the various heads
of power as mutually exclusive watertight compartments and on slotting every
matter into one and only one head of power. The watertight compartments
approach to the interpretation of ss. 91 and 92 of the Constitution Act,
1867 has often been rejected by the courts, and rightly so (see, for
example, Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161,
at pp. 180-81).
Ontario Hydro
refined its argument before this Court to claim in the alternative that the
federal declaratory power applies only to works which do not fall within a
category specifically assigned to the provinces, such as electrical generating
facilities under s. 92A(1) (c). However, this argument has no merit
since under s. 92A(1) (c), it is not the works themselves which
are given to provincial jurisdiction, but the conservation, development
and management of those works. As the Court of Appeal held, it is an
error not to distinguish between activities concerning facilities for the
generation of electricity (i.e., development, conservation and management) and
the character or nature of those facilities (i.e., being works). It is still
open to the federal government to make a declaration that a work of a type
specifically mentioned in s. 92A(1) (c) is to the general advantage of
Canada, bringing the work under federal jurisdiction. The question, which will
be addressed below, is what sort of jurisdiction does the federal government
gain over a work mentioned in s. 92A(1) (c) through the operation of such
a declaration, given that the provinces have explicitly been assigned the
exclusive jurisdiction over the management of those works.
As I mentioned
above, Ontario Hydro and CUPE argued that the second reason why works which are
specifically identified in s. 92 are not subject to the declaratory power is
that the federal declaratory power is a general power which must be read
narrowly to exclude those classes of subjects assigned exclusively to the
provinces. This argument refers to the interpretative process known as the
doctrine of mutual modification which was established by the Privy Council in Citizens
Insurance Co. of Canada v. Parsons (1881), 7 App. Cas. 96, where the Privy
Council said at pp. 108-9:
With
regard to certain classes of subjects, therefore, generally described in sect.
91, legislative power may reside as to some matters falling within the general
description of these subjects in the legislatures of the provinces. In these
cases it is the duty of the Courts, however difficult it may be, to ascertain
in what degree, and to what extent, authority to deal with matters falling
within these classes of subjects exists in each legislature, and to define in
the particular case before them the limits of their respective powers. It
could not have been the intention that a conflict should exist; and, in order
to prevent such a result, the two sections must be read together, and the
language of one interpreted, and, where necessary, modified, by that of the
other. In this way it may, in most cases, be found possible to arrive at a
reasonable and practical construction of the language of the sections, so as to
reconcile the respective powers they contain, and give effect to all of them.
In performing this difficult duty, it will be a wise course for those on whom
it is thrown, to decide each case which arises as best they can, without
entering more largely upon an interpretation of the statute than is necessary
for the decision of the particular question in hand.
This method of
balancing the provisions in ss. 91 and 92 of the Constitution Act, 1867
was adopted by this Court in Reference re Waters and Water-Powers, supra,
where Duff J. wrote for the Court (at p. 216):
There
is nothing more clearly settled than the proposition that in construing section
91 , its provisions must be read in light of the enactments of section 92 , and
of the other sections of the Act, and that where necessary, the prima facie
scope of the language may be modified to give effect to the Act as a whole.
However,
as already mentioned, since the works themselves have not been specifically
assigned to the provinces under s. 92A(1) (c), there is no apparent
conflict between the federal declaratory power and the provincial jurisdiction
over management which would require a reading down of the federal declaratory
power. Further, given that the very nature of the declaratory power is to
enable Parliament to assume jurisdiction over a work which would otherwise be
within provincial jurisdiction, it is arguable that the doctrine of mutual
modification is of little application to the determination of what works are
subject to the federal declaratory power.
Despite the lack of
conflict between the federal declaratory power and the provincial power over
management, Ontario Hydro argued that Parliament gave up its declaratory power
over nuclear electrical generating stations when s. 92A was added to the Constitution
Act, 1867 in 1982. I note that Ontario Hydro, as well as the Ontario Court
of Appeal, placed some emphasis on what Parliament must have intended when s.
92A was ratified as part of the Constitution Act, 1867 . In my view,
CUPE is correct in indicating that Tarnopolsky J.A. should not have relied so
heavily on the Minutes of the Special Joint Committee on the Constitution in
concluding that s. 92A was not meant to diminish the federal declaratory
power. However, neither can Ontario Hydro claim that Parliament must be deemed
to have known that it was neutralizing its past declarations or its future
declaratory power with respect to nuclear electrical generating stations.
This Court has
indicated that the Minutes of the Special Joint Committee on the Constitution
carry limited weight in the arena of constitutional interpretation (see Re
B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 509, where Lamer
J., as he then was, held with respect to interpreting the Canadian Charter
of Rights and Freedoms that "it would in my view be erroneous to give
these materials anything but minimal weight"). This Court has never
adopted the practice more prevalent in the United States of basing
constitutional interpretation on the original intentions of the framers of the
Constitution. Rather, in Canada, constitutional interpretation rests on giving
a purposive interpretation to the wording of the sections. As Professor Hogg
notes in "The Charter of Rights and American Theories of
Interpretation" (1987), 25 Osgoode Hall L.J. 87, at pp. 97-98:
The
principle of progressive interpretation of the constitution is as firmly
established in Canada as is the principle of minimal reliance on legislative
history. The Supreme Court has repeatedly asserted that the language of the
constitution is not to be frozen in the sense in which it would have been
understood in 1867. Rather, the constitution is to be regarded as "a
living tree capable of growth and expansion within its natural limits".
While the wording
of s. 92A is unambiguous that management of electrical generating facilities is
within the exclusive jurisdiction of the province, the section does not
indicate that any special reservation from the federal declaratory power was
made. In my opinion, Parliament did not give up its declaratory power over
nuclear electrical generating stations when s. 92A of the Constitution Act,
1867 was added to the Constitution in 1982.
I would add that
these conclusions accord with academic writings on s. 92A which have indicated
that the resource amendment, as the section is called, increased provincial
power with respect to the raising revenues from resources and to regulating the
development and production of resources without diminishing Parliament's
pre-existing powers. See R. D. Cairns, M. A. Chandler and W. D. Moull, "Constitutional
Change and the Private Sector: The Case of the Resource Amendment"
(1986), 24 Osgoode Hall L.J. 299, at p. 300; and W. D. Moull,
"The Legal Effect of the Resource Amendment -- What's New in Section
92A ", in J. P. Meekison, R. J. Romanow and W. D. Moull, Origins and
Meaning of Section 92A : The 1982 Constitutional Amendment on Resources
(1985), 33, at pp. 53-54.
As I noted above,
the scope of federal jurisdiction over the works it makes subject to
declarations is not absolute in the context of traditional interpretations of
federalism and the declaratory power. Therefore, Ontario Hydro's exhortation
that this Court must, by removing certain classes of works from the ambit of
the declaratory power, stand firm against the onslaught of federal gutting of
all provincial power through the declaratory power loses its force.
The declaration in
s. 18 of the Atomic Energy Control Act is therefore valid with
respect to Ontario Hydro's nuclear electrical generating stations which are
works within the definition of that section. This declaration brought Ontario
Hydro's nuclear electrical generating stations as works within the jurisdiction
of Parliament which, according to the opening words of s. 91 of the Constitution
Act, 1867 , is exclusive jurisdiction. The next question to be addressed is
whether or not Parliament's exclusive jurisdiction over Ontario Hydro's nuclear
generating facilities as works includes the labour relations of employees
employed in those stations.
3.Does
a valid declaration by Parliament under s. 92(10) (c) of the Constitution Act,
1867 over nuclear electrical generating stations give Parliament jurisdiction
over the labour relations of employees employed in those stations?
To answer this
question, one should begin with the proposition that, generally speaking,
labour relations are a matter falling under the provincial jurisdiction over
property and civil rights found in s. 92(13) of the Constitution Act, 1867 .
This was the conclusion of the Privy Council in Toronto Electric
Commissioners v. Snider, [1925] A.C. 396, when they struck down the federal
Industrial Disputes Investigation Act, 1907, S.C. 1907, c. 20, which
purported to regulate industrial disputes in the mining industry as well as
public utilities.
Beginning with the
decision of the Court in Reference re Industrial Relations and Disputes
Investigation Act, supra, there came to be recognized a principle
that, despite jurisdiction over labour relations being normally a matter under
provincial jurisdiction, where federal undertakings were concerned
Parliament obtained legislative authority over labour relations. The rationale
behind this principle is that labour relations are an integral part of an
undertaking and Parliament cannot effectively regulate an undertaking without
control over labour relations. Martland J. held for the Court in Commission
du salaire minimum v. Bell Telephone Co. of Canada, supra, at
p. 772:
In
my opinion all matters which are a vital part of the operation of an interprovincial
undertaking as a going concern are matters which are subject to the exclusive
legislative control of the federal parliament within s. 91(29) . . . .
Similarly, I feel that the regulation and control of the scale of wages to be
paid by an interprovincial undertaking, such as that of the respondent, is a
matter for exclusive federal control.
This theme was
taken up in Construction Montcalm Inc. v. Minimum Wage Commission,
[1979] 1 S.C.R. 754, which was the first of the cases in this area to articulate
the rules by which the sharing of jurisdiction over labour relations is to be
achieved. Construction Montcalm concerned the issue of whether
provincial minimum wage laws were applicable to the labour relations of a
construction company involved in the construction of Mirabel airport on federal
Crown land. Beetz J. wrote the reasons for the majority and made the following
statement of the law (at pp. 768-69):
The
issue must be resolved in the light of established principles the first of
which is that Parliament has no authority over labour relations as such nor
over the terms of a contract of employment; exclusive provincial competence is
the rule: Toronto Electric Commissioners v. Snider. By way of
exception however, Parliament may assert exclusive jurisdiction over these
matters if it is shown that such jurisdiction is an integral part of its
primary competence over some other single federal subject: In re the
validity of the Industrial Relations and Disputes Investigation Act (the Stevedoring
case). It follows that primary federal competence over a given subject can
prevent the application of provincial law relating to labour relations and the
conditions of employment but only if it demonstrated that federal authority
over these matters is an integral element of such federal competence; thus, the
regulation of wages to be paid by an undertaking, service or business, and the
regulation of its labour relations, being related to an integral part of the
operation of the undertaking, service or business, are removed from provincial
jurisdiction and immune from the effect of provincial law if the undertaking,
service or business is a federal one. . . .
The Court held that there was nothing
specifically federal about Construction Montcalm's business simply because it
was building an airport. Therefore Construction Montcalm was not immune from
the operation of provincial laws regarding minimum wages and other conditions
of employment.
The Court
reaffirmed the principles of Construction Montcalm in Northern
Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115,
where Dickson J. stated since labour relations are integral to the operation of
an undertaking, service or business, labour relations will be removed from
provincial jurisdiction where federal undertakings are concerned. Northern
Telecom was appealing the decision of the Canada Labour Relations Board
certifying the respondent union as the bargaining agent for a unit of Northern
Telecom's installation supervisors. The Court was unable to determine the
nature of Northern Telecom's business on the evidence before the Court, and
dismissed Northern Telecom's appeal on the ground that Northern Telecom had
failed to show reversible error by the Canada Labour Relations Board.
The most recent
series of cases in this area is the trilogy of Bell Canada, Courtois
and Alltrans Express, supra. Again, these decisions emphasized
that, where a federal undertaking is concerned, jurisdiction over labour
relations will fall to the federal government. As Beetz J. held in the lead
case of the trilogy, Bell Canada, supra, at pp. 761-62:
. .
. Parliament is vested with exclusive legislative jurisdiction over labour
relations and working conditions when that jurisdiction is an integral part of
its primary and exclusive jurisdiction over another class of subjects, as is
the case with labour relations and working conditions in the federal
undertakings covered by ss. 91(29) and 92(10) a., b. and c.
of the Constitution Act, 1867 , that is undertakings such as Alltrans
Express Ltd., Canadian National and Bell Canada.
Although these
cases concluded that federal jurisdiction over labour relations automatically
flows from federal jurisdiction over an undertaking because labour relations
are an integral part of the management of an undertaking, they are not
dispositive of the case at bar for two reasons. First, we are concerned here
with works and not undertakings, and the parties have conceded that Ontario
Hydro is a provincial undertaking. Second, the Court must consider the effect
of the explicit grant of authority to the provinces in s. 92A over management
of electrical generating facilities.
However, the cases
I have just discussed do provide the general analytic framework within which to
determine who has jurisdiction over labour relations at Ontario Hydro's nuclear
electrical generating facilities. The question to be answered is whether or
not federal authority over labour relations is integral to the exercise of
federal competence over the nuclear electrical generating plants as works
declared to be to the general advantage of Canada. As I see it, answering this
question in turn raises three additional questions. In the first place, what
is the character of labour relations, both generally and in the context of
nuclear generating of electricity? Secondly, what is the nature of
Parliament's competence over Ontario Hydro's nuclear electrical generating
stations? And finally, what is the effect of s. 92A ?
As to the first
question, I note at the outset that the Ontario and federal labour codes are
substantially similar. Indeed, labour codes across Canada largely correspond
to one another. As George Adams (now Mr. Justice Adams) has noted:
Obviously
not all provisions are identical; each jurisdiction has included in its own
legislation measures which reflect or are designed to respond to the economic,
political and cultural forces peculiar to it. Nevertheless, the over‑all
tenor of the legislative enactments throughout Canada remains remarkably
similar.
(Canadian
Labour Law (2nd ed. 1993), at p. 2-94.)
Canadian labour
legislation is concerned with developing procedures for the interaction between
management and employees. Each code governs the rules under which unions are
certified as bargaining agents, under which collective agreements are
negotiated, and under which strikes and lockouts may proceed legally. There is
usually no prescribed content to collective agreements, except that the
agreement be for a definite term and that it contain a method for settling
disputes during the life of the agreement.
Of course, the form
that Canadian labour legislation has taken is only one consideration in
describing the character of labour relations as a matter for constitutional
purposes. It may be said that labour relations law is generally concerned with
the regulation and control of industrial disputes, and not with the unique
concerns of individual industries except where industry-specific measures have
been enacted. It is also apparent that Canadian labour law is concerned with
the equalization of power between workers and employers to protect workers from
the arbitrary exercise of authority. Professor David M. Beatty has
asserted that this latter goal of labour legislation has become paramount in
Canadian labour law:
Whereas
the earlier regulation was directed primarily to securing a balance of
interests favourable to employers and consumers, in our own time legislators
have been more concerned to promote and protect the interests a worker has in
his or her job. Instead of procuring labour peace in the community by legal
sanctions of criminal and civil liability, in more recent times it has been
purchased by legislation aimed at enhancing the opportunity for self-control.
Taken
together, all the laws we have come to rely upon to regulate and coordinate
work activities in our community, can be seen as providing more extensive forms
of protection for workers against arbitrary authority.
(Putting
the Charter to Work (1987), at p. 41.)
Thus, there are two
primary features to labour relations: the preservation of industrial peace and
the empowerment of workers. It remains to be seen whether or not these
features make the legislative control of labour relations integral to
Parliament's effective exercise of its jurisdiction over the nuclear plants of
Ontario Hydro.
The second question
is the nature of Parliament's competence over Ontario Hydro's nuclear
electrical generating stations. When Parliament made the declaration in s. 18
of the Atomic Energy Control Act the federal government obtained
exclusive jurisdiction over the specifically federal aspects of nuclear
electrical generating stations such as those owned and operated by Ontario
Hydro. The preamble to the Atomic Energy Control Act provides a
statement of the federal interest in atomic energy. That statement also
provides the parameters of the federal interest in the operations of the
nuclear electrical generating facilities since the preamble effectively defines
what Parliament determined to be to the general advantage of Canada with
respect to the means of production of atomic energy. I reproduce the preamble
for convenience:
Whereas it is essential in the national interest to make
provision for the control and supervision of the development, application and
use of atomic energy and to enable Canada to participate effectively in the
measures of international control of atomic energy that may hereafter be agreed
on;
There is nothing in this statement,
nor in the rest of the Act, that explicitly or implicitly reveals a federal
interest in regulating labour relations. It is apparent from the Atomic
Energy Control Act that the uniquely federal aspect of Ontario Hydro's
nuclear electrical generating stations is the fact of nuclear production, with
all its attendant safety, health and security concerns.
The terms of the Atomic
Energy Control Act are relevant to determining what Parliament itself
determined was integral to the exercise of its jurisdiction over atomic
energy. So too are the terms of the regulatory scheme put in place under the
Act. Nothing in these regulations indicates any interest in labour relations.
Indeed, the mandatory licences for facilities which use nuclear fuel to produce
electricity contemplate reporting labour disturbances, but are silent on
the need for federal control over labour disputes. Of course, with respect to
Parliament's intent, it may be argued that s. 4 of the Canada Labour Code
proclaims all works declared to the general advantage of Canada to be subject
to federal labour laws. Obviously a more detailed inquiry into the
relationship between Parliament's jurisdiction over the works in question and
the matter of labour relations must be undertaken.
This inquiry must
proceed in the light of the third question, namely what is the effect on this
issue of s. 92A of the Constitution Act, 1867 . This section of the
Constitution grants to the provinces the exclusive jurisdiction over the
"development, conservation and management of sites and facilities
in the province for the generation and production of electrical energy"
(emphasis added). Ontario Hydro's nuclear electrical generating facilities
fall within this provision of the Constitution Act, 1867 . Past
jurisprudence, such as Bell Canada, supra, has held that
regulation of labour relations are integral to the regulation of the management
of an undertaking. This strengthens the presumption of provincial jurisdiction
over labour relations in the specific context of this case since Ontario has been
given constitutional jurisdiction over the management of works such as Ontario
Hydro's nuclear electrical generating sites.
I emphasize that
the province's jurisdiction over the management of the nuclear electrical
generating stations does not come by way of a unilateral statutory assertion.
Section 92A of the Constitution Act, 1867 is an explicit constitutional
statement of jurisdiction, and not a self-serving assertion of jurisdiction.
There is no higher authority for the interpretation of the federal declaratory
power in the specific circumstances of this case than another provision of the
Constitution, namely s. 92A . The specific constitutional grant to the
provinces of jurisdiction over the management of electrical generating stations
combines with both the presumption that labour relations fall to the provinces
and the fact that Ontario Hydro as a whole is a provincial undertaking to weigh
heavily against a finding that the federal government exercises the type of
jurisdiction over the nuclear electrical generating plants such that control
over labour relations is federal.
In view of the
answers to these three questions, can control of labour relations be said to be
integral to the effective exercise of federal jurisdiction over Ontario Hydro's
nuclear electrical generating stations? Unfortunately, the record is almost
non-existent on the practical necessity of control by one jurisdiction or the
other over labour relations in this particular case. Provincial labour laws
have been applied to some of the employees at one of Ontario Hydro's nuclear
plants without any problem for 25 years. However, that evidence cannot be
conclusive in determining constitutional jurisdiction over the labour relations
of all the employees employed at the nuclear plants, including the scientific
and engineering employees. The Attorney General of Canada has filed no
evidence on this point since its position is that it need not justify its
control over labour relations at a federally declared work. Ontario Hydro filed
several affidavits from company officials purporting to address the problems
that divided jurisdiction over labour relations within the company would
raise. But again, these affidavits are not dispositive of the issue,
particularly since the officials' only complaint is that divided jurisdiction
would create uncertainty.
I am therefore
faced with the difficult task of determining jurisdiction over labour relations
in this case with the help of very little evidence. I stated above that the
federal interest in Ontario Hydro's nuclear electrical generating stations is
the fact of nuclear production and its attendant health and safety concerns. I
also concluded that labour relations legislation is generally concerned with
regulating the process of industrial relations and aims at securing both
industrial peace and better working conditions for workers. In the context of
labour relations, the safety of workers and of the public appears to be the
most significant of the federal government's interests. Therefore, I have
tried to consider those labour relations issues which could impact on the safe
operation of the plant. In my opinion, there are two potential concerns.
First, a collective agreement negotiated under provincial labour legislation
might contain provisions which would interfere with the staffing requirements
in the licences issued under the Atomic Energy Control Act. Second, a
lockout by Ontario Hydro or other work stoppage under provincial labour law
could threaten the safe operation of the plant. Both of these concerns appear
to me to be easily addressed.
Section 8 of the Atomic
Energy Control Regulations, C.R.C. 1978, c. 365, forbids the operation
of a nuclear facility except in accordance with a licence issued by the AECB.
The licences issued by the AECB may contain such conditions as the AECB deems
necessary "in the interests of health, safety and security" (s.
9(2)). The licences issued to Ontario Hydro set out a variety of such
conditions (see generally pp. 501-9 C.O.A.). Staffing and organization of the
nuclear plants must conform with a specified organization plan that is filed
with the AECB. Any changes to that plan must be reported to the AECB. The
AECB must approve in writing staffing of certain management and supervisory positions.
The licence also specifies minimum staffing levels to ensure the safe operation
of the nuclear facility, as well as the training that some employees are
required to receive. Finally, there are requirements that any concerns
affecting the safety or security of the plant must be reported to the AECB.
Any collective
agreement provision that contravened these conditions, imposed pursuant to a
valid federal regulation over a federal aspect of the nuclear facility, would
be null and void because the provisions of the federal licence would be
paramount. Valid federal legislation regarding nuclear plants would be
paramount over provincial legislation and collective agreements reached
pursuant to provincial legislation, as counsel for Ontario Hydro and the
Society conceded in their oral submissions. The double aspect doctrine applies
here. The federal licence, federal regulations and the Atomic Energy
Control Act are in pith and substance directed towards the regulation of
the safety of nuclear electrical generating facilities and the effective
control of the development and use of reactors. The Ontario Labour
Relations Act is in pith and substance directed towards the regulation of
the relations between employees and employers. The two can operate concurrently,
except in cases of outright conflict in which case the provisions of the
federal law would apply under the doctrine of paramountcy.
Further, on a
practical level, if a collective agreement led to the violation of the licence
conditions, the AECB could shut the plant down by revoking or suspending the
licence under which the plant operates (see ss. 27 and 28 of the Atomic
Energy Control Regulations).
The evidence does
not disclose that work stoppages represent a significant threat to safety. The
licences under which Ontario Hydro's nuclear electrical generating stations
operate seem to allow for work stoppages: the licences require the reporting
of any actual or impending industrial disputes "which could affect the
safety or security of the nuclear facility" (Art. A.A. 19, sub-article
(v)). The licences do not prohibit work stoppages. Further, the affidavit of
Ontario Hydro's Senior Vice-President of Operations outlines the practical
concerns the company must face in the event of an imminent strike. This
affidavit suggests that a temporary shut-down in the event of a strike, while
undesirable, is a response that would preserve public safety in extreme cases.
As a result,
federal control of labour relations does not appear to be integral to the
effective regulation of the federal government's concerns with respect to
Ontario Hydro's nuclear electrical generating facilities. Both staffing and
work stoppages would be tempered by the conditions of the licences issued by
the federal AECB. Moreover, if specific safety issues were of concern to the
federal government, it could legislate with respect to those issues under its
valid interest in safety flowing from its jurisdiction over the declared
works. This would result in some trenching on provincial powers over labour
relations and the management of electrical generating sites. However, the
necessary trenching on provincial jurisdiction is much more in harmony with the
principles of federalism than is the wholesale withdrawing of labour relations
from provincial jurisdiction.
As I discussed
above, the conclusion that labour relations is not integral to the exercise of
federal jurisdiction is only strengthened by the presence of s. 92A of the Constitution
Act, 1867 . This section expressly provides for provincial jurisdiction
over the management of electrical generating sites, including those fuelled by
nuclear reactors. Provincial control over labour relations appears to me to be
integral to provincial jurisdiction over the management of nuclear electrical
generating facilities. Further, as accepted by everyone, Ontario Hydro as a
whole is a provincial undertaking. In this regard, I would adopt the reasoning
of Galligan J.A., who dissented in the Ontario Court of Appeal. In discussing
the trilogy of cases headed by Bell Canada, Galligan J.A. stated as
follows (at p. 774):
I
made earlier reference to what seems to me to be a fundamental distinction
between the situation in the trilogy of cases and the situation in this case.
Those undertakings were truly national while this is undoubtedly provincial.
The general language used by Beetz J. in those cases must be considered in that
context and care should be taken so that they are not taken out of context and
given a meaning which was not intended. His finding that labour relations is a
vital part of management can indicate, quite apart from the ordinary principle
that labour relations is a provincial matter, that labour relations is an
integral, essential and vital part of the management of a provincial
undertaking and the provincial power to legislate respecting a provincial
undertaking must include the corresponding legislative power to regulate its
labour relations. Thus for the same reason that labour relations of a federal
undertaking must be regulated federally I think that labour relations of a
provincial undertaking should be regulated provincially.
In conclusion, I am
of the view that, notwithstanding s. 4 of the Canada Labour Code , a
valid declaration by Parliament under s. 92(10) (c) of the Constitution
Act, 1867 over nuclear electrical generating stations does not give
Parliament jurisdiction over the labour relations of employees employed in
those stations. Put another way, at issue herein are works not undertakings
and as Hugessen J.A. said in Central Western Railway Corp. v. U.T.U.,
[1989] 2 F.C. 186, at p. 214, works, being physical things, do not have
labour relations, but undertakings do. Control of labour relations is not
integral to the federal interest in the nuclear plants. Indeed, it may be said
on the contrary that, because of s. 92A of the Constitution Act, 1867
and the fact that Ontario Hydro is a provincial undertaking, control of labour
relations is integral to the exercise of provincial jurisdiction over the
nuclear electrical generating facilities. This result accords with the
jurisprudence and the underlying principles that apply to federalism in general
and the declaratory power in particular.
4.If
Parliament's jurisdiction over nuclear electrical generating stations derives
solely from the peace, order and good government clause of s. 91 of the
Constitution Act, 1867 , does that jurisdiction include the labour relations of
employees employed in those stations?
It is not disputed
in this case that Parliament has jurisdiction over atomic energy and therefore
the power to enact the Atomic Energy Control Act under the p.o.g.g.
power in the opening words to s. 91 of the Constitution Act, 1867 . The
Attorney General of Canada argued that, if Parliament's jurisdiction over
Ontario Hydro's nuclear electrical generating stations through the declaration
in s. 18 of the Atomic Energy Control Act, supra, does not extend
to labour relations, Parliament can regulate labour relations at the facilities
through the exercise of its jurisdiction over atomic energy under the p.o.g.g.
power. In my view, the answer to whether Parliament's jurisdiction under the
p.o.g.g. power over Ontario Hydro's nuclear electrical generating plants
extends to labour relations must be based on principles similar to those I
applied in discussing the declaratory power. Both the p.o.g.g. power and the
declaratory power are unusual in the division of powers scheme, and it is
logical to apply the same balancing principles of federalism to both, absent
special circumstances.
There are two
recognized doctrines under the p.o.g.g. power which are relevant to this
appeal: the emergency doctrine and the national concern doctrine. Under the
emergency doctrine, Parliament may use its p.o.g.g. powers to enact legislation
that would normally be ultra vires to combat a national emergency (see
generally Reference re Anti-Inflation Act, [1976] 2 S.C.R. 373). The
type of legislation permissible under the emergency doctrine will be temporary
in nature (R. v. Crown Zellerbach Canada Ltd., supra, at
p. 432).
The Court developed
the parameters of the national concern doctrine of the p.o.g.g. power in Crown
Zellerbach. In his reasons for the majority, Le Dain J. described the
following contours of the national concern doctrine (at pp. 431-32):
1.The
national concern doctrine is separate and distinct from the national emergency
doctrine of the peace, order and good government power, which is chiefly
distinguishable by the fact that it provides a constitutional basis for what is
necessarily legislation of a temporary nature;
2.The
national concern doctrine applies to both new matters which did not exist at
Confederation and to matters which, although originally matters of a local or
private nature in a province, have since, in the absence of a national
emergency, become matters of national concern;
3.For
a matter to qualify as a matter of national concern in either sense it must
have a singleness, distinctiveness and indivisibility that clearly
distinguishes it from matters of provincial concern and a scale of impact on
provincial jurisdiction that is reconcilable with the fundamental distribution
of legislative power under the Constitution;
4.In
determining whether a matter has attained the required degree of singleness,
distinctiveness and indivisibility that clearly distinguishes it from matters
of provincial concern it is relevant to consider what would be the effect on
extra-provincial interests of a provincial failure to deal effectively with the
control or regulation of the intra-provincial aspects of the matter.
With regard to the last factor, the
"provincial inability" test, Le Dain J. hastened to caution that the
test "must not, however, go so far as to provide a rationale for the
general notion, hitherto rejected in the cases, that there must be a plenary
jurisdiction in one order of government or the other to deal with any legislative
problem" (p. 434). Therefore, that the federal government may have
jurisdiction over atomic energy by reason of the national concern branch of the
p.o.g.g. power does not give Parliament plenary power over all aspects of
nuclear power.
The p.o.g.g.
power, like all of Parliament's powers, must be interpreted in accordance with
the specific grants of power to the provinces under ss. 92 and 92A of the Constitution
Act, 1867 . While there is no dispute that Parliament has jurisdiction over
atomic energy under the national concern branch of the p.o.g.g. power, the
extent of what is swept within Parliament's jurisdiction is circumscribed to
the national concern aspects of atomic energy which would appear to be the same
as those aspects of the nuclear electrical generating stations which render
them to the general advantage of Canada, namely the fact of nuclear production
and its safety concerns.
I concluded above
that Parliament does not require control over labour relations at Ontario
Hydro's nuclear electrical generating stations in order to exercise effectively
its jurisdiction over the works through the declaratory power. Similarly, it
is not integral to the exercise of the p.o.g.g. power over atomic energy that
Parliament regulate the labour relations of employees employed at Ontario
Hydro's nuclear electrical generating stations.
To
allow Parliament to control labour relations at these facilities where such
regulation is not integral to the effective securing of Parliament's interest
in the facilities would not be reconcilable with the distribution of
legislative powers under which the provinces are accorded jurisdiction over
both property and civil rights, including labour relations, and the management
of electrical generating facilities. To define the federal jurisdiction under
the p.o.g.g. power in this case to include labour relations would render the
provincial power to manage the facilities meaningless since labour relations
and management are "two elements of the same reality" (Bell Canada,
supra, at p. 798). This would not have "a scale of impact on
provincial jurisdiction that is reconcilable with the fundamental distribution
of legislative power under the Constitution" (Crown Zellerbach, supra,
at p. 432).
The Attorney
General of Canada cited Pronto Uranium Mines Ltd. v. Ontario Labour
Relations Board, [1956] O.R. 862 (H.C.), as authority that Parliament's
jurisdiction over atomic energy under the p.o.g.g. power extends to the labour
relations of workers employed in the atomic energy industry. In Pronto,
the Canadian Mine Workers Union applied to the OLRB for certification as the
bargaining agent for the employees of two mining companies engaged in the
mining and concentrating of uranium ores. The OLRB certified the union and the
companies applied for an order to quash the certification decision on the
ground that the OLRB had no jurisdiction to hear the application. The
companies argued that the federal Industrial Relations and Disputes
Investigation Act, R.S.C. 1952, c. 152, was applicable to their employees.
McLennan J. held that control of atomic energy fell within the federal p.o.g.g.
power and that "it would be incompatible with the power of Parliament to
legislate with respect to the control of atomic energy for the peace, order and
good government of Canada if labour relations in the production of atomic
energy did not lie within the regulation of Parliament" (pp. 869-70).
Pronto was decided prior to the decision of
this Court in Crown Zellerbach, supra, under which the present
p.o.g.g. claim falls to be decided. Further, the judgment in Pronto is
not supported by any reasons and does not accord with decisions of this Court
which have indicated that federal and provincial powers must accommodate one
another to the extent possible. Finally, it appears that the parties in Pronto
conceded that if the mine fell within federal jurisdiction in some aspect then
federal labour laws applied (at p. 868). Because of the structure of the
parties' arguments, the result in the case was a foregone conclusion once
federal jurisdiction over atomic energy was established. For these reasons, Pronto
does not provide authority for the Attorney General of Canada's claim that
through the p.o.g.g. power Parliament has jurisdiction over the labour
relations at Ontario Hydro's nuclear electrical generating facilities.
In summary, while
Parliament has jurisdiction over atomic energy under the national concern
branch of the p.o.g.g. power, that jurisdiction does not extend to the labour
relations between Ontario Hydro and those of its employees employed in the
nuclear electrical generating stations. The federal government does not
require control over labour relations at Ontario Hydro's nuclear facilities for
the exercise of jurisdiction over atomic energy. In other words, the labour
relations at issue in this case are not part of the single, distinctive and
indivisible matter identified as atomic energy. This is not the say, however,
that Parliament, where circumstances warrant, may not, in exercising its valid
jurisdiction over nuclear energy, enact legislation which has an impact on the
labour relations of Ontario Hydro's employees under either the national concern
branch or the national emergency branch of the power to legislate for the
peace, order and good government of Canada.
5.Is
Ontario Hydro immune from the operation of the Canada Labour Code by virtue of
interjurisdictional Crown immunity?
In view of the
conclusion I have reached that it is the Ontario Labour Relations Act
and not the Canada Labour Code , which constitutionally applies in the
circumstances of this case, it is not strictly necessary that I address this
question. Nonetheless, I am of the opinion that had I reached a different
conclusion on the applicability of the Canada Labour Code , Ontario Hydro
would not be immune from the operation of federal labour legislation.
The Divisional
Court held that Ontario Hydro was a public policy instrument to which the Canada
Labour Code should not be interpreted to apply unless the Code expressly
and specifically states that it does apply. I respectfully disagree. There is
no jurisprudence indicating that a company like Ontario Hydro, described by the
Divisional Court (at p. 279 O.R.) as a "provincial public policy
instrument" and which the parties agreed is not a Crown agent, is entitled
to interjurisdictional Crown immunity. Based on the arguments submitted on
this issue, I see no reason to create a new category of interjurisdictional
Crown immunity for a species of organization known as a public policy
instrument. Therefore, I agree with the Attorney General of Canada's
submission that Ontario Hydro stands on no higher footing than would any other
employer in the province of Ontario, in so far as immunity from federal
legislation is concerned.
VII. Conclusion
The federal
government exercises exclusive jurisdiction over some aspects of Ontario
Hydro's nuclear electrical generating facilities through its declaratory and
p.o.g.g. powers. However, control of labour relations at those facilities is
not integral to Parliament's effective regulation of the sites in terms of its
interest in those sites. Therefore, in answer to the constitutional question,
it is the Ontario Labour Relations Act which constitutionally applies to
the labour relations between Ontario Hydro and those of its employees at its
nuclear electrical generating facilities.
VIII. Disposition
For the foregoing
reasons, I would allow the appeals, set aside the order of the Ontario Court of
Appeal, and restore the order of the Divisional Court except the mandamus.
Under the circumstances, I would award costs only in this Court to Ontario
Hydro, CUPE and the Society, to be paid by the Attorney General of Canada.
Appeals dismissed, Sopinka,
Cory and Iacobucci JJ. dissenting.
Solicitors for
Ontario Hydro: Blake, Cassels & Graydon, Toronto.
Solicitors for CUPE
‑‑ C.L.C. Ontario Hydro Employees Union,
Local 1000: Gowling, Strathy & Henderson, Toronto.
Solicitor for the
respondent the Ontario Labour Relations Board: Kathleen A.
MacDonald, Toronto.
Solicitors for the
respondent the Society of Ontario Hydro Professional and Administrative Employees: Cavalluzzo,
Hayes & Shilton, Toronto.
Solicitor for the
respondent the Attorney General of Canada: John C. Tait,
Ottawa.
Solicitor for the
intervener the Attorney General for Ontario: George Thomson,
Toronto.
Solicitor for the
intervener the Attorney General of Quebec: The Department of
Justice, Ste‑Foy.
Solicitor
for the intervener the Attorney General for New
Brunswick: Paul M. LeBreton, Fredericton.
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