Date: 20091015
Docket: T-287-09
Citation: 2009 FC 1041
Ottawa, Ontario, October 15, 2009
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
THE BRITISH COLUMBIA
CORPS OF COMMISSIONAIRES
dba
COMMISSIONAIRES BC
Applicant
and
ATTORNEY GENERAL OF CANADA
and THE PUBLIC SERVICE
ALLIANCE OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application by the British Columbia Corps of Commissionaires
(Commissionaires) seeking an order quashing the decision of a Health and Safety
Officer (Officer) acting under Part II of the Canada Labour Code, R.S.C.
1985, c. L-2. In that decision, the Officer determined that the work of the
Commissionaires under a contract with the Canada Border Services Agency (CBSA)
to provide guarding and transportation services for immigration detainees from
its downtown and Vancouver International Airport detention
facilities was not governed by Part II of the Canada Labour Code.
[2]
None
of the Respondents have filed submissions on this application and, on the day
of the hearing, the Attorney General of Canada and the Public Service Alliance
of Canada (PSAC) conceded that the decision under review was wrongly decided.
Notwithstanding the challenge to the prima facie constitutional
interests of the Province, the Attorney General of British Columbia advised that
he took no position on the merits of this application.
[3]
At
the outset of the hearing I raised a concern that because the contract between
the CBSA and the Commissionaires had expired earlier this year, the issue
before the Court may have become moot. I am, however, satisfied that the
underlying dispute between the Commissionaires and its aggrieved employees
remains outstanding, as do a number of other labour relations disputes arising
out of the work performed under the CBSA contract. The jurisdictional issue at
the centre of this proceeding has been or could be expected to be raised in
those collateral proceedings and it is likely to be a point of continuing
contention until it is judicially resolved. Indeed, the same jurisdictional
issue was recently considered by a Review Board of Work Safe British Columbia (the
provincial workplace safety agency) but that Board declined to resolve it, in
part, for the reason that it was pending before this Court.
[4]
Notwithstanding
the common ground that exists among the parties, the Court must still be
satisfied that the Officer’s decision contains a reviewable error and that
there are no other reasons to deny prerogative relief.
[5]
I
have carefully reviewed the Officer’s decision and I am satisfied that he erred
in determining that the work performed by Commissionaires employees under the
CBSA contract did not fall within the parameters of Part II of the Canada
Labour Code. It is apparent that the Officer correctly identified the test
to be applied, that being whether the work performed by Commissionaires
employees was integral, vital or essential to the CBSA mandate: see Northern
Telecom Ltd. v. Communications Workers of Canada (1979), [1980] 1 S.C.R.
115, 98 D.L.R. (3d) 1 (S.C.C.). But it is also apparent that he failed to
properly apply that test to the essentially undisputed evidence before him.
[6]
The
Northern Telecom decision, above, dictates that the determination of
whether federal jurisdiction applies to labour activity that is subsidiary to a
core federal undertaking requires an assessment of whether the relationship is
vital, essential or integral to that undertaking. This was said to necessarily
involve an assessment of the interdependence of the two entities, including their
physical and operational connections. The task was further described in the
following passages from that decision:
Another, and far more important factor in
relating the undertakings, is the physical and operational connection between
them. Here, as the judgment in Montcalm stresses, there is a need to
look to continuity and regularity of the connection and not to be influenced by
exceptional or casual factors. Mere involvement of the employees in the federal
work or undertaking does not automatically import federal jurisdiction.
Certainly, as one moves away from direct involvement in the operation of the
work or undertaking at the core, the demand for greater interdependence becomes
more critical.
On the basis of the foregoing broad
principles of constitutional adjudication, it is clear that certain kinds of
“constitutional facts”, facts that focus upon the constitutional issues in
question, are required. Put broadly, among these are:
(1) the general nature
of Telecom’s operation as a going concern and, in particular, the role of the
installation department within that operation;
(2) the nature of the
corporate relationship between Telecom and the companies that it serves,
notably Bell Canada;
(3) the importance of
the work done by the installation department of Telecom for Bell Canada as compared with other customers;
(4) the physical and
operational connection between the installation department of Telecom and the
core federal undertaking within the telephone system and, in particular, the
extent of the involvement of the installation department in the operation and
institution of the federal undertaking as an operating system.
[7]
The
evidence before the Officer describing the nature of the working relationship
between the Commissionaires and CBSA established that the former provided
monitoring and transportation services for immigration detainees in a number of
different contexts. This required that detainees be maintained in custody
including the occasional use of restraining devices. The nature of these
activities was described by the Commissionaires in the following submission to
the Officer:
a. Commissionaires are
assigned to CBSA to perform enforcement activities associated with the
implementation of federal Immigration laws, specifically, detaining persons who
have entered the country under questionable circumstances and who have to have
their status in Canada determined by the IRB or
other applicable federal bodies.
b. The
Commissionaires’ duties include: detaining persons at the Pacific Region
Holding Centre; transporting them to hearings or to/from incarceration (in the
case of potentially dangerous persons); escorting persons under orders to leave
Canada to flights or to the US Border; picking up persons who have been detained
in Canada, but are to be dealt with in Vancouver; maintaining custody of
immigration detainees who have been taken to medical facilities for treatment;
detaining, on a temporary basis, persons who enter Canada under questionable
circumstances through YVR and are awaiting further processing by CBSA;
performing escorts and detentions for CBSA offices at Library Square; and
arranging for feeding and medical care of persons in detention.
c. The persons for
whom the Commissionaires are responsible are not prisoners – they are persons
who have entered Canada under questionable
circumstances or who have been ordered to leave the country and are not trusted
to do so on their own. Persons who have committed criminal acts are handled by
Correctional Services.
d. The Commissionaires
working for CBSA are NOT responsible for acting as bodyguards to these
individuals. Rather they are to maintain custody of persons to ensure Canada has control of questionable
individuals.
[8]
The
Officer found that these duties were not essential, vital or integral to the
operations of the CBSA because:
(a) The
work contracted to the Commissionaires could be performed by CBSA personnel;
(b) The
loss of service from the Commissionaires would not be detrimental to CBSA
operations;
(c) The
Commissionaires had subsequently been replaced by a provincially regulated
agency;
(d) Commissionaires
employees did not carry out risk assessments, determine the level of required
restraint, make arrests, perform law enforcement functions or interpret the
law; and
(e) The
provision of security services has typically been found to be a provincially
regulated activity.
[9]
In
addition to the above, the Officer applied a decision from the British Columbia
Labour Relations Board where the provision of radio room communication services
by the Commissionaires to the Department of Fisheries and Oceans (DFO) was held
not to be essential to the work of that agency.
[10]
Surprisingly,
what the Officer completely failed to consider was the fact that PSAC had been
previously ordered by the Canada Industrial Relations Board to be the certified
bargaining agent for this unit of employees under Part I of the Canada
Labour Code.
[11]
It
is apparent to me that the Officer misunderstood the legal test that he was
bound to apply. It was of no relevance to his assessment to find that the work
of Commissionaires employees could be done by CBSA employees or by some other
“provincially regulated agency”. These findings essentially beg the question
that had to be decided. I agree with counsel for the Commissionaires that the
determination of what is essential or vital to a core federal undertaking requires
an assessment of the tasks or functions performed. The Officer needed to ask
whether the work carried out by the Commissionaires’ employees was essential or
vital to the operational mandate of the CBSA such that the loss of the service
would prevent the CBSA from fulfilling its legal responsibilities. The fact
that the CBSA had contracted out some of those functions to some other entity,
whether provincially regulated or not, was of no legal significance.
[12]
While
the Officer was correct that the provision of passive or incidental security
service to a federal or federally regulated agency has been generally held to
fall within provincial labour jurisdiction, the authorities also establish that
the type of active security or support performed under this contract with the
CBSA is a matter falling within federal jurisdiction. Contrary to the Officer’s
finding, the type of work performed here was closely analogous to airport
security screening: see Pinkerton’s of Canada Ltd. (1990), 90 CLLC 16, 061,
82 di 18, affirmed (1992), 32 A.C.W.S. (3d) 940, [1992] F.C.J. No. 271 (QL)
(F.C.A.). The Officer’s further reliance on the British Columbia Labour Board
decision dealing with DFO radio operations was also in error. That decision was
overturned on reconsideration in Re British Columbia Corps of
Commissionaires, [2001] B.C.L.R.B.D. No. 277. In that review decision, the
Board also held that it was of no legal significance that Commissionaires
employees did not interpret or enforce the law. What was important was whether
their assigned tasks were vital to the overall enforcement of the law by field
officers. The Board found that they were and the same conclusion must be drawn
on the undisputed facts of this case.
[13]
In
most cases of this sort, the Court would order that the decision under review
be returned to the decision-maker for redetermination. This is, however, one
of those few cases where there is only one correct determination such that a
declaration is appropriate.
[14]
None
of the parties have requested costs and no order of costs will be made.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this application
is allowed and the decision under review is quashed.
THIS COURT FURTHER
DECLARES that the employees of the Applicant who performed work on behalf
of the Canada Border Services Agency at 700 – 300 West Georgia
Street,
Vancouver, British
Columbia
and at the Vancouver
International Airport are governed by Part II of the Canada Labour
Code.
“ R. L. Barnes ”
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