Date: 20110617
Docket: T-1105-10
Citation: 2011 FC 717
Ottawa, Ontario, June 17, 2011
PRESENT: The Honourable Mr. Justice Crampton
BETWEEN:
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COMMISSIONAIRES (GREAT LAKES)
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Applicant
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and
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TANYA DAWSON
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Ms.
Tanya Dawson was employed by Commissionaires (Great Lakes) (“CGL”). CGL
provided Ms. Dawson’s services to the Orderly Room of the Department of
National Defence’s Post Recruitment Education Training Centre (“PRETC”) at Camp Borden in Borden, Ontario. In March
2009, Ms. Dawson was dismissed from her position with CGL. In August 2009, she
filed a complaint pursuant to section 240 of the Canada Labour Code, RSC
1985, c L-2 (the “CLC”). CGL objected to the complaint on the basis that its
dismissal of Ms. Dawson is not subject to federal jurisdiction under the CLC.
[2]
In
June 2010, the adjudicator, Dr. Daniel J. Baum (the “Adjudicator”) rejected
CGL’s jurisdictional arguments and found that Ms. Dawson was unjustly
dismissed, within the meaning of the CLC.
[3]
CGL
seeks to have the decision set aside on the basis that:
i.
the
Adjudicator mischaracterized the nature of Ms. Dawson’s employment and based
his decision on erroneous findings of fact that disregarded the evidence before
him; and
ii.
the
Adjudicator erred in concluding that Ms. Dawson’s employment with CGL was
sufficiently vital, integrated and integral to the core federal military
undertaking of the Department of National Defence so as to bring her employment
within federal jurisdiction, for the purposes of Part III of the CLC.
[4]
For
the reasons that follow, this application is granted.
I. Background
[5]
CGL
is a not-for-profit Ontario corporation founded in 1925. It provides
workers from a qualified pool to businesses or organizations that have requested
a person with specified skills to fill identified employment vacancies. In this
respect, CGL bears some similarity to an employment agency. However, unlike
many employment agencies, CGL continues to directly employ and to be ultimately
responsible for the supervision of the Commissionaires it places with its
clients.
[6]
Historically,
CGL’s purpose was to provide work for veterans of the military and the RCMP. Demand
for its services centered on security work. However, CGL now provides broader
employment services in areas including clerical work, dispatching, parking
enforcement, fingerprinting and security consulting. In general, CGL’s
employees are uniformed and assigned ranks similar to that in the military or
the police.
[7]
For
many decades, CGL has provided services to the federal government pursuant to a
national contract, called the National Master Standing Offer (“NMSO”).
[8]
Ms.
Dawson commenced her employment with CGL in 2007. Shortly afterwards, PRETC
requested a Commissionaire to work in its Orderly Room. Ms. Dawson was selected
from a “deemed qualified pool” and she was interviewed by CGL’s site manager
for Camp Borden, Lieutenant
Thomas Yeo. She was then sent to PRETC for a further interview.
[9]
There
is some dispute as to the nature of Ms. Dawson’s work in the Orderly Room at
PRETC. Ms. Dawson claims that she was responsible for handling claims of
members of the military related to, among other things, payroll, and that PRETC
required her to obtain secret level clearance. She also states that she was
also responsible for assigning rooms to members who arrived at Camp Borden as part of
Base Accommodations and for arranging transportation for military personnel
leaving the Base for training or military tasks.
[10]
However,
Mr. Phillip Day, Human Resources Manager of CGL and the person who represented
CGL at the hearings before the Adjudicator, states that there was no evidence
that Ms. Dawson’s responsibilities included payroll, nor was there evidence
that secret level clearance was required for her position.
[11]
While
Ms. Dawson worked in the Orderly Room, there were issues regarding her work
that were brought to the attention of Lieutenant Yeo. After meeting with Ms.
Dawson, Lieutenant Yeo ordered her to remove her belongings and to vacate her
position at PRETC. However, she was not at this time dismissed from her
position as a Commissionaire.
[12]
Subsequent
to the vacation of her position, Ms. Dawson was summoned to appear for a
meeting with Lieutenant Yeo. She did not attend. Mr. Day then requested a
meeting with her. As the date for that meeting approached, Ms. Dawson informed
Mr. Day that she had retained counsel. Mr. Day indicated that he wished to meet
with her alone. Mr. Day subsequently cancelled the meeting and provided Ms.
Dawson with a letter of discharge, terminating her position with CGL, effective
March 24, 2009.
[13]
In
August 2009, Ms. Dawson submitted a complaint of unjust dismissal pursuant to
Part III of the CLC. CGL immediately sent a letter raising an objection to the
complaint on the basis that the CLC did not apply to CGL. The Adjudicator was
subsequently appointed and heard the complaint in March and April, 2010.
II. The Decision under
Review
[14]
In a
decision dated June 14, 2010, the Adjudicator concluded that CGL had unjustly
dismissed Ms. Dawson, within the meaning of the CLC. He then ordered CGL to, among
other things, pay Ms. Dawson damages totaling $40,916.89.
[15]
The Adjudicator dealt
with the jurisdictional issue at the outset of his decision.
[16]
After
briefly reviewing the
nature of the Applicant’s business, he noted that CGL is a not-for-profit
Ontario corporation that operates in an area of the province bounded by
Bowmanville, Sarnia and Parry Sound.
[17]
He
then
acknowledged the Applicant’s submissions that, throughout its 85-year history,
the Commissionaires have never been subject to federal jurisdiction, that
contracts entered into between CGL and its employees specifically acknowledge
the application of Ontario employment legislation,
and that the NMSO provides that the federal government may request the
Commissionaires to supply employees on conditions set forth in the NMSO,
including compliance with provincial employment laws.
[18]
He then
proceeded to observe that “the precise issue to be decided under this head is …
whether federal or provincial legislation is to apply to the work done by Ms.
Dawson.”
[19]
In reviewing
the applicable law, the Adjudicator acknowledged that “Parliament has no
authority over labour relations, as such” and that “the terms of a contract of
employment … are matters within the authority of the provinces.”
[20]
That
said, he noted that “Parliament may assert exclusive jurisdiction over subjects
if they are an integral part of a matter within the primary competence of
the federal government” (emphasis in original). In this regard, he noted
that subsection 91(7) of the Constitution Act, 1867 confers exclusive
jurisdiction over “militia, military and naval service, and defence” to
Parliament.
[21]
Given
the foregoing, and relying upon Northern Telecom Ltd v Communications
Workers of Canada, [1980] 1 S.C.R. 115, the
Adjudicator observed that it was necessary to examine “the normal or habitual
activities of the organization in question”. He then quoted from Central
Western Railway Corporation v United Transportation Union, [1990] 3 SCR
1112, at para 45, where the Supreme Court stated that, in determining
constitutional jurisdiction in labour matters, the key issue is whether the
relationship between that organization and the core federal undertaking can be
characterized as “vital,” “essential,” or “integral.”
[22]
Applying
the foregoing principles to the facts of the case at bar, the Adjudicator stated
that the issue was whether the work performed by Ms. Dawson “fell into a
category marked by the British North America Act as exclusive to the federal
government and whether her work was germane to that category.” He proceeded to
find that her work was directly related to the Canadian forces (“CF”),
specifically, in relation to intake, payroll and processes for governing the
movement of military personnel.
[23]
On
this basis, he
concluded that federal jurisdiction applied to the case before him. He then
turned to the merits of the complaint, which are not within the scope of this
application.
III. Standard of review
[24]
It
is common ground between the parties that the Adjudicator’s ruling on the
jurisdictional issue in this case is reviewable on a standard of correctness (Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para 50; Consolidated Fastfrate Inc v
Western Canada Council of Teamsters, 2009 SCC 53, [2009] 3 SCR 407, at
para 26; Smith
v Alliance Pipeline Ltd., 2011 SCC 7, at para 26). That said, any factual findings made by
the Adjudicator in reaching his determination on the jurisdictional issue are
reviewable on a standard of reasonableness (Consolidated Fastfrate,
above, at para 26). Similarly, the Adjudicator’s treatment of the evidence
adduced in the hearings before him is also reviewable on a standard of
reasonableness (Dunsmuir, above, at paras 51-55; Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1
SCR 339,
at para 46).
[25]
It
follows that the first issue that has been raised by CGL is reviewable on a
standard of reasonableness, whereas the second, jurisdictional, issue is reviewable
on a standard of correctness.
IV. Preliminary Issue
[26]
Prior
to the oral hearing in this application, Ms. Dawson submitted a motion to
strike all or parts of certain paragraphs of an affidavit sworn by Mr. Day. She
asserted that the paragraphs in question either contained opinion evidence, argument
or evidence that was not put before the Adjudicator.
[27]
After
reviewing, at the outset of the oral hearing of this matter on June 2, 2011,
each of Ms. Dawson’s objections to Mr. Day’s affidavit, I applied the principle
that the “strik[ing of] affidavits or portions of affidavits in judicial
review applications is a discretion which should be exercised sparingly and be
granted only in cases where it is in the interest of justice to do so, for
example or in cases where a party would be materially prejudiced …” (Armstrong v Canada
(Attorney General),
2005 FC 1013, at para 40).
[28]
In
so doing, I agreed to strike a small number of passages that were essentially
argument, speculation or opinion, while I declined to strike passages that
contained “new” evidence that I considered to be relevant, or potentially
relevant, to the jurisdictional issue that has been raised in this application
(McFadyen v Canada (Attorney General), 2005 FCA 360, at paras 14-15). This
is reflected in my Order below.
V. Analysis
A.
Did the Adjudicator err by mischaracterizing the nature of Ms. Dawson’s
employment
and
basing his decision on erroneous findings of fact that disregarded the evidence
before
him?
[29]
In
the absence of a transcript of the proceedings before the Adjudicator, or any
notes that he may have taken, CGL relied on the affidavit of Mr. Day to assert
that there was no evidence that administration of payroll formed any part of Ms.
Dawson’s job. Alternatively, CGL asserted that the finding that the
Respondent’s work was related to “payroll” is too vague to be of assistance in
determining the issue of the application of federal jurisdiction.
[30]
CGL
further submitted that the Adjudicator’s finding that Ms. Dawson’s work was
related to “processes governing the movement of military personnel” is
misleading and could be interpreted as including military exercises, which is
not supported by any evidence. Once again, CGL asserted that this finding is
too vague, lacks context, and is an insufficient basis upon which to conclude
that federal jurisdiction exists.
[31]
Regarding
the Adjudicator’s finding that Ms. Dawson was required to obtain “secret” security
clearance, CGL submitted that this disregards the evidence given at the hearing
to the effect that “secret” level clearance was not required for Ms. Dawson’s
position. CGL noted that although Ms. Dawson testified that she required “secret”
level clearance, no other evidence was produced at the hearing to corroborate
this claim. CGL submits that the Adjudicator appeared to give significant
weight to this finding in his decision, and that even if this finding is
accepted at face value, it would not indicate that the military was dependent
on the work performed by Ms. Dawson or that her work was vital, essential or
integral to the military’s operations.
[32]
In
affidavits dated October 8, 2010 and December 21, 2010, Ms. Dawson disputed,
among other things, CGL’s position that there was no evidence given at the
hearing regarding whether (i) her job included administration of payroll; and
(ii) she was required to have “secret” level clearance to perform her duties at
PRETC.
[33]
In
the absence of a transcript of the hearings that were held before the
Adjudicator, it is not possible to determine whether the Adjudicator’s findings
on those points were erroneous or unreasonable. Accordingly, CGL has not met
its burden of proof in this regard.
[34]
That
said, I agree with CGL that the Adjudicator’s finding that Ms. Dawson’s work
related, among other things, to “process for governing the movement of military
personnel”, should not be construed as including “military exercises.” Mr. Day
stated in his affidavit dated August 5, 2010 that there was no evidence adduced
before the Adjudicator that Ms. Dawson was responsible for or involved in the
movement of military personnel, except for training purposes. In her affidavit
dated October 8, 2010, Ms. Dawson characterized her role in this regard as
being “responsible for arranging transportation for military personnel leaving
the base for training or military tasks”. I do not interpret this evidence, or
the Adjudicator’s above-quoted characterization of her role, as suggesting that
Ms. Dawson was involved in arranging any transportation that might occur during
military exercises. I mention this only because it is relevant to my assessment
of the jurisdictional issues discussed below.
B. Did the Adjudicator err in concluding that
federal jurisdiction applied?
[35]
The CGL
submitted that while the Adjudicator cited some of the appropriate principles
for determining the issue of jurisdiction, he disregarded these principles in
his analysis and did not apply the correct test in making his determination. CGL
asserted that the Adjudicator’s analysis only considered whether the
Respondent’s work was “germane” and “directly related” to the federal
undertaking, namely military, rather than whether it was “vital”, “integral”,
or “essential” to that undertaking. More importantly, CGL submitted that the
Adjudicator failed to take into account the nature of its operations, its
relationship with the military and the importance of its work for the military.
In this regard, it stated that the Adjudicator failed to take into account the
fact that the CGL is an Ontario corporation that
operates only in Ontario and operates much like
an employment agency, all of which would ordinarily bring its labour relations
entirely within provincial jurisdiction. CGL added that the Adjudicator also
failed to consider whether the “core” of the federal undertaking, being the
military, would be impaired by provincial regulation of CGL’s labour relations.
[36]
I
agree that the Adjudicator erred by: (i) applying an erroneous test in determining
the issue of jurisdiction; (ii) failing to assess whether the normal or
habitual activities of CGL are such as to render CGL a federal undertaking,
service or business, for the purposes of the jurisdictional analysis; and (iii)
failing to consider whether provincial regulation of CGL’s labour relations would
impair the “core” of federal jurisdiction over the military. I also agree that
the Adjudicator begged the question to be decided when he observed, at the
outset of his analysis of the jurisdictional issue, that “Part III of the Canada
Labour Code” controls this matter. There is nothing in the statute which,
in itself, allows for an estoppel again at individuals for whom the law was
designed to protect.”
[37]
The
Supreme Court recently addressed the issue of federal jurisdiction over labour
and employment relations in NIL/TU,O Child and Family Services Society v BC
Government and Service Employees’ Union, 2010 SCC 45, [2010] 2 S.C.R. 696. There, the Supreme Court considered whether the
labour relations of child welfare services provided by the appellant (“NIL/TU,O”)
to certain First Nations in B.C. fell under federal jurisdiction, pursuant to
s. 91(24) of the Constitution Act, 1867, which confers jurisdiction to
the Parliament of Canada in respect of “Indians and lands reserved for Indians”.
The Court unanimously concluded that NIL/TU,O’s labour relations fell under
provincial jurisdiction. However, the Court split with respect to the test that
should be applied when determining whether federal jurisdiction applies to
labour relations.
[38]
The
majority decision, written by Justice Abella, confirmed (at para 11) that: (i)
labour relations are presumptively a provincial matter; (ii) the federal
government may acquire jurisdiction over labour relations only by way of
exception; and (iii) this exception has been “narrowly interpreted.” Justice
Abella then described the test that applies in this regard in the following
terms:
[18]
… [I]n determining whether an entity’s labour relations will be federally
regulated, thereby displacing the operative presumption of provincial
jurisdiction, Four B [Manufacturing Ltd v United Garment Workers of
America, [1980] 1 S.C.R. 1031] requires that a court first apply the
functional test, that is, examine the nature, operations and habitual
activities of the entity to see if it is a federal undertaking. If so, its
labour relations will be federally regulated. Only if this inquiry is
inconclusive should a court proceed to an examination of whether the provincial
regulation of the entity’s labour relations would impair the core of the federal
head of power at issue.
[39]
Justice
Abella emphasized that, if it is necessary to proceed to the second step of the
assessment, the question is not whether the entity’s operations lie at the “core”
of the federal head of power, it is whether the provincial regulations of that
entity’s labour relations would impair the “core” of that head of power (NIL/TU,O,
above, at para 20).
[40]
Justice
Abella ultimately concluded that NIL/TU,O’s labour relations fell within
provincial jurisdiction because the essential nature of its operations is to
provide child and family services, which falls into the provincial sphere and
is regulated exclusively by the provinces. She rejected (at paras 39-40 and 45)
the argument that the presence of federal funding, the cultural identity of
NIL/TU,O’s clients and employees, and its mandate to provide culturally
appropriate services to Aboriginal clients displaced the presumption in favour
of provincial jurisdiction. In short, she observed that “[t]he community for
whom NIL/TU,O operates as a child welfare agency does not change what it
does, namely provide child welfare services” (NIL/TU,O, above, at para 45,
emphasis in original). Given that the functional test was conclusive, she found
that an inquiry into whether NIL/TU,O’s activities or operations lie at the “core”
of a federal undertaking or head of power was not required.
[41]
The
minority judgment in that case, written by Chief Justice McLachlin and Justice
Fish, applied a different test in reaching the conclusion that provincial jurisdiction
applied. In brief, it stated that “the central question is whether the
operation [in this case NIL/TU,O],
viewed functionally in terms of its normal and habitual activities, falls
within the core of a federal head of power, in this case s. 91(24) of the Constitution
Act, 1867” (NIL/TU,O, above, at para 58). In applying that test, the
minority judgment stated that “the first step is to determine the extent of the
core federal undertaking or power. Having done this, one asks whether, viewed
functionally, the operation’s activities fall within that power” (NIL/TU,O,
above, at para 61).
[42]
In the case at bar, the test applied by the Adjudicator was
whether the work performed by Ms. Dawson “fell into a category marked by the British
North America Act as exclusive to the federal government and whether her
work was germane to that category” (emphasis added). He then proceeded to
determine that her work was directly related to the military,
specifically, in relation to intake, payroll and processes for governing the
movement of military personnel. On that basis, he concluded that “federal
jurisdiction applies.”
[43]
To the
extent that the test applied by the Adjudicator may be said to have focused on
the relationship between Ms. Dawson’s work and the “core” of the military on
the federal head of power over the military, it resembles the test articulated
by the minority ruling of the Supreme Court of Canada in NIL/TU,O, above, and certain
cases relied upon by Ms. Dawson (for example, British Columbia Corps of
Commissionaires (cob Commissionaires BC) v Canada (Attorney General), 2009 FC 1041, at paras 5 and
11; Lloyd’s Register North America Inc v Dalziel, 2004 FC 822, at paras
19-21 and 33; Bernshine Mobile Maintenance Ltd v Canada Labour Relations
Board, [1986] 1 FC 422, at 435; Pinkerton’s of Canada Ltd, (1990) 90
CLLC 16,061). That said, it is readily apparent that the language used by the
Adjudicator reflects a much more expansive test for asserting federal
jurisdiction than the test that was adopted in the minority judgment in NIL/TU,O, above, and other cases
relied upon by Ms. Dawson.
[44]
Although
the Adjudicator recognized, in his review of the applicable legal principles,
the importance of examining “the normal or habitual activities of the
organization in question”, he failed to assess whether CGL’s normal or habitual
activities were such as to render CGL “‘a federal work, undertaking or
business’ for the purposes of triggering the jurisdiction of the Canada
Labour Code” (NIL/TU,O,
above, at para 12).
[45]
I acknowledge that
the Adjudicator fairly summarized CGL’s operations. However, he did not do so
“without regard for exceptional or casual factors” (NIL/TU,O, above, at
para 14; Northern Telecom, above, at 135), and he failed to implicitly
or explicitly assess whether CGL’s activities were such as to render it a
federal work, undertaking or business. As a result, his decision cannot stand.
[46]
Ms. Dawson
submitted that the test adopted by the Adjudicator is consistent with the test
articulated in the majority judgment in NIL/TU,O,
above, because “the entity in question in this case is not CGL, but is the
PRETC Orderly Room and the DND within which Ms. Dawson works with military
personnel and federal civil servants (and under their direction) as a component
within a functioning unit”.
[47]
I disagree. As the
Adjudicator appropriately recognized: (i) CGL “is the employer in this matter”;
(ii) when issues regarding Ms. Dawson’s work arose, they were “brought to the
attention of the Commissionaire Camp Borden supervisor, Lieutenant Yeo; (iii) Lieutenant
Yeo, in turn summoned Ms. Dawson and questioned and reprimanded her, both
orally and in writing; (iv) “[t]hose were the reprimands that Ms. Dawson
challenged”; and (v) Ms. Dawson was discharged from her employment by CGL,
ostensibly for failing to attend meetings with Lieutenant Yeo and Mr. Day,
respectively. In addition, CGL is the entity against whom Ms. Dawson filed her
complaint of unjust dismissal, and the Adjudicator recognized that Ms. Dawson’s
placement with the PRETC Orderly Room at Camp
Borden was effected through
the NMSO, an agreement between CGL and the federal government. The Adjudicator
also recognized that when Ms. Dawson was ordered by Lieutenant Yeo to vacate
her position at PRETC, this did not mean that she was removed from her position
as a Commissionaire.
[48]
In addition, Ms.
Dawson did not contest Mr. Day’s evidence that, “when [she] was employed by CGL
she shared the
following key features of her employment in common with all other provincially
regulated CGL employees:
a) The same hiring and pre-employment
training process,
b) She was paid under the same
payroll system as other CGL employees,
c) She was subject to transfer
between sites to meet client requirements at CGL discretion,
d) She was covered by the same
benefits plan as other CGL employees,
e) She was subject to the same
uniform regulations as other CGL employees, and
f)
She was
subject to the same CGL policies and procedures.”
[49]
Collectively, these
facts, together with the terms of her employment agreement and section 2.7 of
the NMSO, discussed below, distinguish the case at bar from the “true employer”
cases relied upon by Ms. Dawson, namely, Plante v Entreprises Réal Caron Ltée,
[2007] FCJ No 1617; and BFI Canada Inc (Re), [2004] ALRBD No 63.
[50]
Based on
the foregoing, I do not accept Ms. Dawson’s position that: (i) CGL was not the
relevant entity for the purposes of the application of the first step in the
test adopted in the majority decision in NIL/TU,O,
above; or (ii) she should be viewed as having, in essence, been a subsidiary of
a federal undertaking, namely, the military.
[51]
In my view, the
application of the first step of the test articulated by Justice Abella in NIL/TU,O,
above, demonstrates that CGL is not a federal undertaking, service or business.
In short, leaving aside “exceptional or casual factors” (NIL/TU,O,
above, at para 14), the normal or habitual activities of CGL include the
following activities that were recognized in the Adjudicator’s decision:
- CGL
is a not-for-profit Ontario Corporation;
- it
operates in an area from Bowmanville to Sarnia
and to Perry Sound;
- its business bears some similarities
to that of an employment agency;
- historically, its primary purpose
has been to find and to provide meaningful work for veterans and the RCMP,
although it now offers Commissionaire services to other types of clients;
- its clients apply to it for workers,
usually with specified skills, often for an unspecified period of time;
- CGL sometimes maintains a pool of
such persons who are often previously vetted and approved to fill
requested vacancies;
- CGL establishes perspective employee
pools in response to employment demand;
- in the past, that demand centered on
security work, but it has since broadened to include clerical, dispatch,
parking enforcement, fingerprinting and security consulting; and
- contracts between CGL and its
employees specifically provide for the application of the Ontario
Employment Standards Act.
[52]
Based on
the foregoing, I have no difficulty concluding that CGL is not a federal
undertaking, service or business.
[53]
My
conclusion in this regard is reinforced by the following, uncontested evidence
that was adduced in the context of the present application. In particular, Ms. Dawson’s employment
agreement with CGL, dated August 16, 2007, provides among other things, that
she will “engage [herself] as a Commissionaire (security guard), to undertake
all ordinary duties of a Commissionaire/security guard, and to accept any
situation to which [she] may be assigned.” That agreement also provides that “[h]ours
in excess of 88 in a two-week pay period are subject to overtime payments in
accordance with the Ontario Employment Standards Act.”
[54]
In
addition, paragraph 2.7 of the NMSO, signed by CGL and the federal government, states
as follows:
The Corps in engaged by Her Majesty as an
independent Contractor for the sole purpose of providing these services.
Neither the Corps nor any of its personnel is an employee, servant or agent of
Her Majesty. Departments and Agencies must be satisfied that an employer-employee
relationship will not result when they enter into a contract for Commissionaire
Services. When in doubt, before entering into a contract for the services of a
Commissionaire, Department and Agencies should seek the advice of their legal
adviser to ensure that there will be no employer-employee relationship in any
resulting contract. The Member Division of the Corps is solely responsible
for supervisory duties such as scheduling work in accordance with the period of
coverage requested, making final decisions with regard to the promotion and
payment of wages to Commissionaires, enforcing disciplinary measures, etc. (Emphasis in original)
[55]
In summary, there is nothing about the
nature, operations or habitual activities of CGL which might allow it to
be considered to be a federal undertaking, business or service (Four B,
above, at 1046).
[56]
Even if it
could be said that some of the work performed by Ms. Dawson was integral to the
military, in the sense contemplated by the minority judgment in NIL/TU,O,
above, I am satisfied that such work can fairly be construed as having been
exceptional, relative to CGL’s habitual activities (NIL/TU,O,
above, at paras 14 and 53-54; Northern Telecom, above, at 135), such
that it would not render CGL a federal undertaking, business or service.
[57]
That said,
I am satisfied that the work performed by Ms. Dawson was not integral to the
military. In short, it cannot be said that the military was in any way
dependent on Ms. Dawson’s services (Central Western Railway, above, at
1142 and 1143). This is confirmed by the evidence that she was not replaced
after she vacated her position at PRETC. Lieutenant Yeo also testified that he
was advised by the client (PRETC) that it would rather do without a
Commissionaire than continue to retain Ms. Dawson’s services.
[58]
Even
accepting, subject to my comments at paragraph 34 above, the Adjudicator’s
findings on the contested issues of Ms. Dawson’s required level of security
clearance and whether her work included the administration of payroll and related
to processes for governing the movement of military personnel, I find that her
work was largely clerical in nature. This is reflected in the following
description of her work that she provided at paragraph 11 of her affidavit
dated December 21, 2007:
I was hired by PRETC to work in the
Orderly Room because I had the knowledge and skill to assist the military
personnel in completing the necessary forms, including travel claims and
expenses and the documentation that they were required to submit. I would also
ensure that they had completed their Wills and Last Testaments before being
sent to other units. I averaged 50 to 100 of these recruits every Monday. I
also dealt with the mail register for 50 to 500 military personnel who were
students, handled a separate PRETC file for the Kingston Base and handled
intake and out-clearances at each arrival at PRETC.
[59]
Likewise, in her initial written submissions, she stated that she “was hired by PRETC to work in
the Orderly Room because she had the requisite knowledge and skill to assist
military personnel in completing administrative forms for claims and handling
administrative matters.” In her supplementary submissions, she stated that she
“was recruited by the Department of National Defence to work as a clerk within
the Orderly Room of PRETC.”
[60]
In short, Ms. Dawson’s duties, “while important and even
necessary, [were] not vital, essential or integral to the core undertaking of”
the military (The British Columbia Corps of Commissionaires (the “Corps”) v
Public Service Alliance of Canada, Local No. 05/20500 (the “Union”), BCLRB
No. B184/2001, 2001 CanLII 33010, at para 37).
[61]
Given my
finding that CGL is not a federal undertaking, it is not necessary to consider
whether provincial regulation of its labour relations, including with
Commissionaires it places with the military, would impair the core of the
federal head of power over “militia, military and naval service, and defence”,
as set forth in subsection 91(7) of the Constitution Act, 1867.
[62]
That said,
I agree with CGL that there is nothing in the Arbitrator’s decision that could
support a conclusion that the “core” of this federal head of power would be
impaired by provincial regulation of CGL’s labour relations.
[63]
At the end
of his treatment of the jurisdictional issue, the Adjudicator rejected CGL’s
position that applying federal jurisdiction to Ms. Dawson’s complaint against
CGL “might open the door for significant jurisdictional disputes”. I do not
agree with the Adjudicator’s position. To conclude that federal jurisdiction
exists in this matter would require significantly expanding the test for
establishing the existence of such jurisdiction to something similar to the
test that the Adjudicator applied.
[64]
Such an
approach would not only be contrary to both the majority and minority decisions
in NIL/TU,O, above, it would also be inconsistent with the longstanding
approach of narrowly interpreting the scope of the exception to the principle
that labour relations are presumptively a provincial matter.
[65]
Indeed, such
an approach would create significant scope for the types of situations that Justice
Beetz, speaking for the
majority in Construction Montcalm Inc v Quebec (Minimum Wage Commission),
[1979] 1 S.C.R. 754, at 776, wished to avoid when he observed:
In
submitting that it should have been treated as a federal undertaking for the
purposes of its labour relations while it was doing construction work on the
runways of Mirabel, Montcalm postulates that the decisive factor to be taken
into consideration is the one work which it happened to be constructing at the
relevant time rather than the nature of its business as a going concern. What
is implied, in other words, is that the nature of a construction undertaking
varies with the character of each construction project or construction site or
that there are as many construction undertakings as there are construction
projects or construction sites. The consequences of such a proposition are far
reaching and, in my view, untenable: constitutional authority over the labour
relations of the whole construction industry would vary with the character of
each construction project. This would produce great confusion. For instance, a
worker whose job it is to pour cement would from day to day be shifted from
federal to provincial jurisdiction for the purposes of union membership,
certification, collective agreement and wages, because he pours cement one day
on a runway and the other on a provincial highway. I cannot be persuaded that
the Constitution was meant to apply in such a disintegrating fashion.
VI. Costs
[66]
The parties agreed that, subject to the exercise of the Court’s
discretion, the amount of costs, including disbursements, payable by the
unsuccessful party should be fixed at $5,000. Particularly having regard to the
fact that CGL raised the jurisdictional issue when it initially received Ms.
Dawson’s complaint and again at the outset of the hearings before the
Adjudicator, I am satisfied that this is an appropriate amount to award against
Ms. Dawson.
VII. Conclusion
[67]
The
application for judicial review is granted. The Adjudicator’s decision will be
quashed.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that:
1. This
application for judicial review is granted. The Adjudicator’s decision dated
June 14, 2010 is quashed.
2. Ms. Dawson
shall pay to CGL costs in the amount of $5,000.00.
3. The following
passages shall be struck from the affidavit of Mr. Phillip Day, sworn on August
5, 2010:
a) The first and
last sentences in paragraph 7.
b) The following
words in paragraph 12: “Dr. Baum’s reasons failed to consider” – these shall be
replaced with the words “There was”.
c) Paragraph 13.
d) The first
sentence in paragraph 14.
“Paul
S. Crampton”
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