Date: 19991230
Dockets: T-78-99
APPLICATION UNDER Section 18.1 of the Federal Court Act,
R.S., c.10 (2nd supp)
AND IN THE MATTER OF a wage recovery appeal under
Division XVI, Part III of the Canada Labour Code
BETWEEN:
| AUGUSTINE "S SCHOOL BUS INC. |
Applicant
- and -
| ANGELA ASHER, PIERRETTE BEACH, JENNIFER BECK, |
WILLIAM BOYD, PEARL DECOSTE, KIM DUCHARME,
| MARY DYCK, ED GIVEN, MARILYN GIVEN, LINDA BRANT, |
DIANA GUITAR, JEANNE HAGGERTY, PENNY-ANN KRANZ,
RHEA LANDRY, MARGARET MANWARING, DIANA MATTIE,
| EDWARD MOONEY, VIOLA R. MOONEY, CAROL PROVENCAL, HOWARD PAGE, RUTH SAVOIE, YVONNE SODTKA, AUDREY SMITH, LES SMITH, ALLISON ST. PIERRE, DONNA TAYLOR, FRED TAYLOR, CAROL THOMPSON, CHARLENE WARD AND MARLENE WEEGAR |
Respondents
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] In 1993-1995, Augustine"s School Bus Inc. provided school bus and charter bus service within Ontario and between Ontario and the United States. The essential question is whether the extra-provincial feature of this service placed the service under Federal jurisdiction.
A. The background
[1] The Respondents, employees of Augustine"s School Bus Inc., made a complaint under Division XVI, Part III of the Canada Labour Code that they had not been paid the wages due to them. The relevant period for the Respondents" claims is the three-year period immediately preceding the sale of the Applicant"s business to another company in December 1995. An Inspector from Human Resources Development Canada investigated and issued an order for the Applicant to pay. The Applicant appealed this decision and the appeal was heard by Mr. Nimal V. Dissanayake, an experienced Labour Relations Arbitrator, sitting as a Referee appointed pursuant to the Canada Labour Code .
[2] The issue before the Referee was whether, for the years 1993 to 1995 inclusive, for purposes of labour relations, the Applicant"s business was governed by the Canada Labour Code , or by statutes enacted by the Province of Ontario. Labour relations is a subject falling within provincial jurisdiction as an aspect of property and civil rights within the meaning of s.92(13) of the Constitution Act, 1867. However, by s.92(10)(a) of the Constitution Act, 1867, an exception to Provincial jurisdiction over "local works and undertakings" conferred by s.92 is provided if a particular transportation undertaking extends beyond the limits of a Province, in which case, it falls under Federal jurisdiction. 1
[3] The Applicant"s position before the Referee was that its business did not fall within this exception, despite the fact that it provided some extra-provincial charter services during the period in question. In a decision dated November 18, 1998, the Referee ruled in favour of the Respondents by finding that the Applicant operated within Federal jurisdiction under s.92(10)(a) of the Constitution Act, 1867 .
[4] This application for judicial review is a challenge to the correctness of that finding.
B. The issue
[5] As the Referee decided a question of jurisdiction, it is agreed that the issue for determination is: Did the Referee reach the correct decision?
C. The facts
[6] It is agreed that the Referee correctly found the facts upon which the decision under review is based, and with some clarifications agreed to by counsel in the oral hearing of the present case, they are as follows:
* The Applicant"s primary business consisted of two main contracts for bus services with the Niagara South Public School Board and the Welland County Separate School Board for the transportation of school children to and from school. Each contract provided a regularly scheduled route for pick ups and drop offs.
* In each school year, the number of school bus trips averaged between 31,500 and 35,000 and were provided on a regularly scheduled basis.
* Through the contracts in the school bus business, it became known that the Applicant was available for charter service, and, as a consequence, the charter services were available on request, and only if they did not interfere with the primary transportation of school children. The Applicant did not solicit charter business through advertising.
* No regular scheduled charter services had been requested, but the Applicant was amenable to providing such service.
* The Applicant acquired an "X" licence to permit extra-provincial trips into the US and prior to obtaining the licence made border crossings based on a "gentleman"s agreement".
* The Applicant purchased one bus with luggage space underneath in order to be able to provide longer charter trips.
* Only experienced drivers were assigned to charter trips. When an experienced driver was assigned to a charter trip, he or she was replaced on his or her regular school route by a driver from a list of extra drivers maintained for that purpose.
* Most of the out of province charters were to destinations within one to two hours from the US border at Buffalo, New York.
* The extra-provincial charter service, and charter service as a whole, were secondary to its main business of providing a school bus service.
* Unlike the school bus operation, the charter trips were not made according to a pre-set schedule.
* The total charter trips amounted to 1.6% of the total number of trips (school and charter) done yearly by the Applicant. Of the total trips, charter trips outside Ontario accounted for only one tenth of 1%, being 30 - 42 trips per year. Of 500 charter trips in 1991-1992, 42 were outside Ontario; of 596 charter trips in 1992-1993, 30 were outside Ontario; of 700 charter trips in 1993-1994, 30 were outside Ontario; and of 500 charter trips taken in 1994-1995, 31 were outside Ontario. 2
D. The law
[1] An important precedent with respect to the issue under consideration is the Ontario Court of Appeal decision in Re Ottawa-Carlton Transit and Amalgamated Transit Union, [1983] 44 O.R. (2nd) 560 ("OC Transpo"). With respect to the test to be applied respecting whether an undertaking falls within the ambit of s.92(10)(a) of the Constitution Act, 1867 , Cory J.A. at 567 said this:
| There seem to be two lines of cases which have considered this section. The first are those cases in which the undertaking before the court carried on a business within the transportation industry with operations extending into another province or connecting with another province. The courts in those cases were dealing with trucking firms, bus lines and railways: see, for example, A.-G. Ont. et al. v. Winner et al., [1954] 4 D.L.R. 657, [1954] A.C. 541, 13 W.W.R. (N.S.) 657 (P.C.); R. v. Toronto Magistrates, Ex p. Tank Truck Transport Ltd., [1960] O.R. 497, 25 D.L.R. (2d) 161, affirmed [1963] 1 O.R. 272; R. v. Cooksville Magistrate"s Court, Ex p. Liquid Cargo Lines Ltd., [1965] 1 O.R. 84, 46 D.L.R. (2d) 700, 65 C.L.L.C. 147. It is this line of authorities which should direct the result in the case. [Emphasis added] |
[2] Therefore, the answer to the question posed in the present case is found by applying the principles found in the authorities cited. In OC Transpo, Cory J.A. at 567-568 clearly states the test arising from these authorities as follows:
| The crucial issue to be determined is whether this undertaking connects Ontario with any other province or extends beyond the provincial limits of Ontario in such a way as to fall within [s.92(10)(a)]. Although it may compromise a small percentage of its total operation, it is clear that OC Transpo, on a regularly scheduled basis, connects Ontario with Quebec and, similarly, extends beyond the provincial boundaries in its daily operations. It must, therefore, be determined if that, in itself, is sufficient to bring the operation within the section....If the extra-provincial operation is regular and continuous, as it is here, then the undertaking falls within the section. 3 |
[3] In addition to the test, the Applicant and Respondent agree that the cases within the line of authority to be followed have established these principles: the essential focus in answering the question posed is not on the nature of the business operated by the Applicant, but on what the business, in fact, does; and the proportion of the extra-provincial charters to the charters as a whole is not determinative of the answer to the question, but is a factor which can be taken into consideration.
E. The correctness of the Referee"s decision
[4] Cory J.A. comments in OC Transpo at 564 that "cases involving constitutional issues turn on their particular facts". Thus, comparing the facts per se in the present case with those found in cases in the line of authority directing the result provides no useful direction in determining whether an undertaking is "regular and continuous". In the end result, assuming correct principles are applied, the determination is made by assigning weight to certain facts over that assigned to others.
[5] The Referee concluded that the extra-provincial activity undertaken by the Applicant is continuous and regular. I find that, in reaching this conclusion, the Referee applied the correct principles as outlined above.
[6] In reaching the decision, the Referee referred to R. v. Cooksville Magistrate"s Court, Ex P. Liquid Cargo Lines Ltd., [1965] 46 D.L.R. (2d) 700 4 and made an observation:
| The company there was engaged in the business of trucking as a carrier of liquid oil and chemical products. Its head office and only terminal were in Ontario. Only 1.6% of its loads, representing 10% of the total mileage were hauled to or from points outside Ontario. |
| The applicant company argued that its undertaking was not "continuous and regular" because its extra-provincial operation consisted of trips made at the request of its customers on a casual, unscheduled basis. It was pointed out to the court that while intra-provincial trips were made on a regular basis, "extra-provincial runs are made in answer to the requests of customers at irregular intervals, for example, as many as 10 loads in one week and then none for two or three weeks thereafter." The court summarized the evidence as follows: "The gist of this evidence was that the applicant holds itself ready to make and does make trips to and from various points outside of the Province of Ontario whenever its customers require that such trips be made". |
| The court held that the fact that the company had no terminals outside Ontario was not of consequence. In finding that the company was governed by federal legislation, at pp. 704-705, Haines J. said: |
| In my view, the fact that many of the applicant"s extra-provincial trips are not made at fixed times in accordance with a predetermined schedule does not compel the conclusion that its activity in that regard is not continuous and regular. Viewed from the point of view of the applicant company, it is clear that its customers are provided with extra-provincial service consistently and without interruption whenever they apply to the applicant for such service. The applicant stands ready at any time to engage in hauls outside the boundaries of the Province of Ontario at the instance of any of its customers, and for that purpose has gone to the pains and expense of acquiring transport permits and licences from a number of jurisdictions. Further, the evidence is clear that it has made such trips frequently during the period for which figures have been provided. |
| The material facts in this case are remarkably similar to the facts in the Liquid Cargo case. [Emphasis added] |
[7] Apart from making the observation of similarity between the facts in the present case and those in Liquid Cargo, the Referee did not give specific reasons for reaching the conclusion that the Applicant"s service was regular and consistent. Nevertheless, I agree with the result.
[8] I find that, as did Haines J. in the situation in Liquid Cargo, a correct result is obtained in the present case by putting weight on the consistency of the extra-provincial charter bus service made available on request. The agreed facts establish that the Applicant prepared for, was amenable to, and did provide on request, a most consistent extra-provincial service between 1991 and 1995. In my opinion, despite its small percentage of the Applicant"s total operation, giving weight to the proven consistency of the extra-provincial service properly results in a finding that it is regular and continuous. Thus, I find that the Applicant"s undertaking for the years in question falls under s.92(10) of the Constitution Act, 1867 , and, therefore, was under Federal jurisdiction for purposes of labour relations. 5
F. The conclusion
[9] As above stated, the question is: "Did the Referee reach the correct decision?". My answer is: Yes.
[10] Accordingly, this application is dismissed. I award costs to the Respondents.
Judge
OTTAWA
__________________
1 As to exclusive powers of Provincial Legislators, s.92(10) reads as follows: s.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: a. Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings connecting the Province with any other or others of the Provinces, or extending beyond the Limits of the Province.
2 Although the relevant years under consideration in the present case are 1993, 1994 and 1995, by agreement, this data for the four-year period can be considered in reaching a decision. For the purpose of assessing the regularity of the charter trips taken outside Ontario, by agreement, also included for consideration is a complete list of all charter services rendered from September 12, 1991 to July 30, 1992 (Applicant"s Application Record, Tab 4). I think a fair conclusion to reach from this list is that the trips outside Ontario are seasonal; out of a total of 42 trips taken, only 4 occurred between October and December, while 14 occurred in January and February, and 13 occurred in June.
3 In OC Transpo, it is not surprising that Cory J.A. had no trouble finding that the bus routes crossing the Ottawa River from Ottawa to Hull used 450 times per day is a regular and continuous extra-provincial operation.
4 Referee"s Decision, Applicant"s Application Record, p.15.
5 The Applicant pressed the Referee, and me in the present judicial review, to apply the decision of the Manitoba Queen"s Bench in R. v. Manitoba Labour Board, Ex P. Invictus Ltd., [1967] 65 D.L.R. (2nd) 517 ("Invictus") which, from its perspective, is favourable. However, the Referee found this case impossible to reconcile with Re Tank Truck and Re Liquid Cargo, and, therefore, declined to apply it. In quoting from the case, the Referee emphasized the following finding made by Matas J., which played heavily in the decision he reached: "The operations of the applicant, when examined from a practical aspect, are in pith and substance provincial in character. The applicant"s extra-provincial transport of horses is incidental to what is essentially and basically an intra-provincial business". Given the agreement in the present case that the law is that the essential focus in answering the question posed is not on the nature of the business operated by the Applicant, but on what the business, in fact, does, I find that the Referee came to the correct conclusion to not apply Invictus.
In addition, during the hearing of the present judicial review, in support of its position, the Applicant presented the newly found decision of Wetston J. of this Court in Zink"s Bus Co. v. R., 152 F.T.R. 279. As with Invictus, since a principal focus of the analysis in this case is on the "pith and substance" of the business operation, which is not the correct focus, I decline to apply it.
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