Attorney General of Canada v. St. Hubert Base Teachers’ Association, [1983] 1 SCR 498

Supreme Court of Canada

Attorney General of Canada v. St. Hubert Base Teachers’ Association, [1983] 1 S.C.R. 498

Date: 1983-05-17

Attorney General of Canada Appellant;

and

St. Hubert Base Teachers’ Association Respondent;

and

Labour Commissioner Roger Lecavalier Mis en cause.

File No.: 16606.

1983: March 1; 1983: May 17.

Present: Dickson, Beetz, Estey, McIntyre, Chouinard, Lamer and Wilson JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Constitutional law—Labour relations—Education—Schools established by federal government on military base—Teachers—Federal employees—Quebec Labour Code inapplicable—Constitution Act, 1867, ss. 91(7), (8), 93.

The Department of National Defence established on a military base a primary school and a secondary school for the children of service members and civilian employees of the Department residing on the base. The teachers of the secondary school formed respondent association and submitted an application for certification pursuant to the Quebec Labour Code. The mis en cause labour commissioner allowed the application. Appellant then applied to the Superior Court, which authorized a writ of evocation to be issued against this decision. The Court of Appeal reversed this judgment. Hence this appeal, which raises the following question: are employees of the federal government subject to provincial labour relations legislation as a result of the fact that their activities would ordinarily be in the exclusive jurisdiction of the province—namely, in the case at bar, over education?

Held: The appeal should be allowed.

The Quebec Labour Code has no application in the case at bar. First, Parliament has exclusive authority over all federal government employees, whatever the nature of their duties or their type of activity. This authority includes the entire field of labour relations. Second, in its order authorizing establishment of the school, the federal government did not make the school subject to all the applicable provincial statutes. The order stated simply that the committee would administer the school “in accordance with the provincial Act

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respecting schools”. The Quebec Labour Code is not the provincial Act respecting schools.

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; Canada Labour Relations Board v. Paul L’Anglais Inc.; Canadian Union of Public Employees v. Paul L’Anglais Inc., [1983] 1 S.C.R. 147; Re Attorney-General of Canada and Branch Affiliate of Base Borden Collegiate Institute (1980), 30 O.R. 428, distinguished; Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529; Reference re Minimum Wage Act of Saskatchewan, [1948] S.C.R. 248; Commission du Salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767; Re Legislative Jurisdiction over Hours of Labour. [1925] S.C.R. 505, referred to.

APPEAL from a judgment of the Quebec Court of Appeal (1981), 130 D.L.R. (3d) 35, reversing a judgment of the Superior Court, [1979] C.S. 29, granting a writ of evocation to issue. Appeal allowed.

Gaspard Côté, Q.C., and James Mabbutt, for the appellant.

Gilles Poulin, for the respondent.

English version of the judgment of the Court delivered by

CHOUINARD J.—The object of this appeal is the following constitutional question: Having regard to s. 93  of the British North America Act, 1867  in relation to education, can the Quebec Labour Code, R.S.Q. 1977, c. C-27, apply constitutionally to teachers hired by the Department of National Defence to teach students authorized to attend schools established on military bases in the Province of Quebec by the Government of Canada pursuant to the National Defence Act, R.S.C. 1970, c. N-4?

The Department of National Defence, which operates the St-Hubert military base, established a primary school and a secondary school there for the children of service members and civilian employees of the Department residing on the base.

The establishment of such schools is authorized by an order titled “Provision of Educational Facili-

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ties at Defence Establishments in Canada”. This order was made by Order in Council P.C. 1968—13/288 of February 15, 1968, based on s. 12(1) of the National Defence Act, R.S.C. 1970, c. N-4.

The trial judge summarized the gist of this order as follows:

[TRANSLATION] By this order the power of the Minister of National Defence was confirmed, in certain circumstances, to authorize the establishment of primary or secondary schools for children whose parents reside at defence establishments. The order is in considerable detail so that it can be given effect.

It limits its application by stating what children will be eligible, namely those of members, whether legitimate, adopted, and so on, and who are of school age or subject to the limitations prescribed in the legislation of the province or territory where the establishment is located for purposes of determining eligibility for free public education.

The order provides that the languages of instruction shall be one or other of the official languages of Canada, and that it shall cover all phases of education, within elementary and secondary levels, in accordance with applicable provincial regulations.

Under the order, the Minister may retain the services of school superintending, inspectorial, supervisory, instructional, specialist and administrative staff.

The Minister may authorize the officer in command at the base to appoint a “school committee or board” for the administration of the schools established by him.

Operation of the said schools is to take place under the direction of the Minister roughly in accordance with the following arrangements:

4—(a) the school shall be administered by the school committee or board in accordance with provincial Acts and under the direct jurisdiction of the provincial Department of Education;

(b) the contracts for employment of school staff shall be between the chairman of the school committee or board and the school staff;

(c) textbooks, supplies and equipment for the use of the school staff and children shall be obtained in accordance with instructions issued by the Minister of Defence;

(d) the Minister may enter into, or authorize, any agreement with the appropriate provincial, municipal

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or other authority with respect to the cost of the construction, operation and government of the school.

In general, education is to be provided without charge to children of members of the forces or civilian personnel employed by the Department of National Defence, residing at the base or in its immediate vicinity.

The order also contains a number of other provisions to deal with certain specific difficulties, as for example, to allow the conclusion of special agreements with other educational authorities, for the purpose of providing educational facilities which the school so created could not provide, and so on.

As the trial judge stated, in accordance with this order:

[TRANSLATION] Under the authority of the officer in command of the Base, and as provided by section 3 of the order cited above, a school committee or board was established by the said commanding officer. A “Constitution and Terms of Reference” was then prepared in writing, containing the powers of each person specially concerned, and indicating the duties of the chairman, vice-chairman, secretary and members of the committee, of the principal and vice-principal of the school and the representatives of the council of teachers. This is reflected in the order made pursuant to the Order in Council, regarding the school committee itself and the terms of reference concerning it, in that it is to act as an administrative body for the school, and to report through its chairman to the officer in command of the base.

The fourteen teachers of the secondary school formed respondent association, which on September 12, 1977 submitted pursuant to the Quebec Labour Code an application for certification in which the employer is given as [TRANSLATION] “The school commission of the school for dependants, St-Hubert Base”.

The certification officer was told that respondent could not be certified on the ground that the teachers in question were employees of the federal government, and the provisions of the Quebec Labour Code did not apply to them. The certification officer reported that there was no agreement on the bargaining unit and the case was accordingly referred to the mis en cause, a labour commissioner, for investigation. The same objection was raised at the hearing. As appellant noted in its submission:

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[TRANSLATION] At the hearing on January 11, 1978 the Attorney General of Canada, representing the employer, submitted that the mis-en-cause lacked jurisdiction to grant the certification requested, since the teachers in question were employees of the Crown in right of Canada and the latter, as employer, could not be subject to provincial laws regarding labour relations.

The mis en cause labour commissioner dismissed the objection, for reasons which included the following:

[TRANSLATION] This school committee is undoubtedly within federal jurisdiction, that of “the NATIONAL DEFENCE DEPARTMENT”. However, can it be said that this federal jurisdiction at the same time covers an area such as education, which is strictly a matter for the provinces under the BRITISH NORTH AMERICA ACT, in particular section 93, and which is exclusive to the Canadian provinces under the Canadian Constitution? I do not think so.

The enterprise and work in question is within federal jurisdiction as regards the training of service members on the base itself; but in the area of the education of the children of service members and civilians working at the base, the schooling of these children, “who are not service members”, is definitely within provincial jurisdiction.

Appellant then applied by a motion in evocation to the Superior Court, which authorized the writ to be issued.

This judgment was reversed by a unanimous decision of the Court of Appeal. McCarthy J.A., speaking for the Court, said inter alia:

[TRANSLATION] It is true that the teacher’s employer is the Minister of National Defence: the school committee or board, as the trial judge stated, is not here “a particular, autonomous and independent legal entity.” It is also true that as a general rule a province cannot legislate on the working conditions of federal government servants: In re Legislative Jurisdiction over Hours of Labour, [1925] S.C.R. 505, at 510. Nevertheless, in the case of persons working in an area within provincial jurisdiction, in my opinion this rule is subject to an exception. In this regard, the federal Crown must be subject to the provisions of the Labour Code of the province of Quebec, as is the provincial Crown.

This passage illustrates the essence of the debate: are employees of the federal government

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subject to provincial labour relations legislation as a result of the fact that their activities would ordinarily be in the exclusive jurisdiction of the province, namely in the case at bar, over education?

Appellant made three arguments:

1. as employer, the federal Crown cannot be subject to provincial statutes regarding labour relations, regardless of the area of activity of the persons which it thus employs;

2. provincial statutes cannot in themselves be binding on the federal Crown, unless the federal authority has adopted them by the machinery of legislation by reference;

3. the education provided on military bases to the children of service members is a matter necessarily incidental to the jurisdiction conferred on Parliament by s. 91(7)  of the Constitution Act, 1867 , over the militia, military and naval service, and defence.

In my view, appellant must succeed on its first argument. This should suffice to dispose of the appeal. However, it will be necessary to deal with the second argument, since respondent contended that the federal government has made the school subject to all applicable provincial statutes, including the Labour Code.

It is not in dispute that the school committee is not a commission within the true meaning of that expression in Quebec educational law. It has no legal personality. As the trial judge found, and the Court of Appeal agreed, the school committee is not [TRANSLATION] “a particular, autonomous and independent legal entity”.

It was admitted that the teachers are employees of the federal government.

Section 91(8)  of the Constitution Act, 1867  confers on Parliament exclusive jurisdiction over:

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8. The fixing of and providing for the Salaries and Allowances of Civil and other Officers of the Government of Canada.

In the reference Re Legislative Jurisdiction over Hours of Labour, [1925] S.C.R. 505, this Court had to rule on jurisdiction over working hours. As a signatory of the Treaty of Versailles and a member of the International Labour Conference of the League of Nations, Canada had undertaken to refer to the proper legislative authorities, for the necessary legislation to be adopted, the draft convention adopted at the 1919 Conference, one of the purposes of which was to limit working hours in industrial enterprises to eight hours a day and forty-eight hours a week. The federal government submitted a reference to this Court to determine the legislative body or bodies to which the draft convention ought to be referred. Questions (2), (3) and (4) of the reference read:

(2) Are the legislatures of the provinces the authorities within whose competence the subject-matter of the said draft convention (copy of which is herewith submitted) in whole or in part lies and before whom such draft convention should be brought, under the provisions of Article 405 of the Treaty of Peace with Germany, for the enactment of legislation or other action?

(3) If the subject-matter of the said draft convention be, in part only, within the competence of the legislatures of the provinces, then in what particular or particulars, or to what extent, is the subject-matter of the draft convention within the competence of the legislatures?

(4) If the subject-matter of the said draft convention be, in part only, within the competence of the legislatures of the provinces, then in what particular or particulars, or to what extent, is the subject-matter of the draft convention within the competence of the Parliament of Canada?

The unanimous judgment of the Court was rendered by Duff J., as he then was. In the course of these reasons he wrote at p. 510:

Under the head of jurisdiction numbered 13 in section 92, Property and Civil Rights, or under the sixteenth head, Local and Private Matters Within the Provinces, or under both heads, each of the provinces possesses

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authority to give the force of law in the province to provisions such as those contained in the draft convention. This general proposition is subject to this qualification, namely, that as a rule a province has no authority to regulate the hours of employment of the servants of the Dominion Government.

The answers to questions (2), (3) and (4) were, at p. 512:

To the second question: yes, in part.

To the third question: the subject matter is generally within the competence of the legislatures of the provinces, but the authority vested in these legislatures does not enable them to give the force of law to provisions such as those contained in the draft convention in relation to servants of the Dominion Government, or to legislate for these parts of Canada which are not within the boundaries of a province.

To the fourth question: the Parliament of Canada has exclusive legislative authority in those parts of Canada not within the boundaries of any province, and also upon the subjects dealt with in the draft convention in relation to the servants of the Dominion Government.

This case was commented on at length in Reference re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529.

Rand J., dissenting in part, nonetheless wrote, at p. 545:

In June of the same year a Reference was made to this Court on a convention adopted by the International Labour Conference of the League of Nations limiting hours of labour in industrial undertakings, and questions were put as to the competence of legislature and Parliament over that matter. The answers were to the effect that the subject generally was within the provincial field, but that it was not competent to the legislatures to give the force of law to the proposed provisions in relation to servants of the Dominion Government or to legislate for those parts of Canada not within the boundaries of a province.

Kellock J. wrote at p. 555:

In this view, nothing more need be said as to the section, as it is past question that government employees are exclusively subject to federal jurisdiction; Reference re Legislative Jurisdiction Over Hours of Labour.

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Locke J., dissenting in part, wrote at pp. 574-75:

In the Reference in the Matter of Legislative Jurisdiction over Hours of Labour, Duff J. (as he then was) who delivered the judgment of the Court, said that legislative jurisdiction touching the suject matter of the Convention was primarily vested in the provinces under the head of jurisdiction numbered 13 in s. 92 “Property and Civil Rights”, or under the 16th Head “Local and Private Matters within the Provinces”, or under both heads. A qualification to this general proposition was said to be that, as a rule, the province has no authority to regulate the hours of employment of the servants of the Dominion Government.

Estey J., for his part, stated the following proposition at p. 564:

These authorities establish that there is a jurisdiction in the Parliament of Canada to legislate with respect to labour and labour relations, even though these relations are classified under Property and Civil Rights within the meaning of s. 92(13) of the B.N.A. Act and, therefore, subject to provincial legislation. This jurisdiction of Parliament to so legislate includes those situations in which labour and labour relations are (a) an integral part of or necessarily incidental to the headings enumerated under s. 91; (b) in respect to Dominion Government employees; (c) in respect to works and undertakings under ss. 91(29) and 92(10); (d) in respect of works, undertakings or businesses in Canada but outside of any province.

In the same case Taschereau J., commenting on Reference re Minimum Wage Act of Saskatchewan, [1948] S.C.R. 248, wrote at p. 542:

This last case is very similar to the one at bar, and I have no doubt that, if it is not competent to a provincial legislature to legislate as to hours of labour and wages of Dominion servants, it is not within its power to legislate as to industrial disputes of employees on a subject matter coming within the jurisdiction of the Parliament of Canada under s. 91.

And Abbott J. wrote at p. 592:

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

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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.

This passage was cited and unanimously reaffirmed by this Court in Commission du Salaire minimum v. Bell Telephone Co. of Canada, [1966]S.C.R. 767, at p. 772.

G.R. Schmitt, “The Jurisdiction of the Canadian Parliament in Matters of Labour Legislation” in Legal Essays in Honour of Arthur Moxon, U. of T. Press, 1953, p. 49, wrote at p. 57:

There can be no doubt that the Dominion has complete jurisdiction over its own servants.

In Les Compétences législatives au Canada et les Pouvoirs provinciaux en Matière de Propriété et de Droits civils, Ottawa, 1967, André Tremblay wrote at p. 239, note 461:

[TRANSLATION] Section 91(8) suggests that it was really the intent of the statesmen in 1867 to give the Dominion complete control over relations between the federal Crown and its employees.

See also his Précis de droit constitutionnel, Thémis, Montreal, 1982, at p. 186.

Peter W. Hogg, Constitutional Law of Canada, Toronto, 1977, wrote at p. 306:

Needless to say, there is no doubt that the federal Parliament also has jurisdiction to regulate labour relations in the federal public sector, that is to say, employment in the departments and agencies of the federal Government.

It seems to me, therefore, that if Parliament has exclusive authority over employees of the federal Government, its authority includes the entire field of labour relations, and that accordingly the Quebec Labour Code has no application to respondent association.

The cases which respondent cited in support of the contrary view and the rules stated therein do not apply. The case at bar concerns federal government employees, and this was not true in any of those cases: Construction Montcalm Inc. v. Mini-

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mum Wage Commission, [1979] 1 S.C.R. 754 and Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115. To these might be added the more recent and still unpublished decision[1], rendered on February 8, 1983, Canada Labour Relations Board v. Paul L’Anglais Inc.; Canadian Union of Public Employees v. Paul L’Anglais Inc. Construction Montcalm concerned the employees of a contractor performing a federal government contract to build runways at the Mirabel International Airport. In Northern Telecom the case involved employees of that company. In Paul L’Anglais Inc., it involved employees of these two subsidiaries of Télé-Métropole Inc.

With respect to the distinction suggested by respondent and accepted by the Court of Appeal, based on the nature of the activities performed, no such distinction was made in Re Legislative Jurisdiction over Hours of Labour (supra), where it was held that Parliament has exclusive jurisdiction over the working hours of federal government employees. No subsequent authority has made such a distinction. I would observe that this new proposition, as counsel for the respondent so properly called it, would of necessity create a vast number of difficulties in implementation, difficulties which can easily be imagined without the need of giving examples. This would be true of federal government employees as much as of provincial government employees.

Additionally, counsel for the respondent wrote in his submission:

[TRANSLATION] Finally, respondent submits that the argument of appellant that provincial statutes cannot in themselves bind the federal Crown unless the federal government has itself adopted them through the machinery of legislation by reference should not be considered for the purposes of the case at bar.

This argument of appellant and the authorities on which it is based should not be accepted here, since as the Supreme Court of Ontario held in an unreported majority judgment dated September 30, 1980, in THE ATTORNEY GENERAL OF CANADA V. THE BRANCH AFFILIATE OF BASE BORDEN COL-

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LEGIATE INSTITUTE ET AL. (see appendix), the federal Crown, by an Order of the Governor in Council dated February 15, 1968, titled “Provision of Educational Facilities at Defence Establishments in Canada”, J.R. at pages 13 to 19, expressly agreed to be bound by all provincial statutes which may apply to administration of the schools located on military bases established in any province of Canada.

In this regard Robins J., for the majority, stated at page 10 of his judgment (see page 38 of appendix):

Manifestly, the federal Crown has chosen to adopt provincial legislation under which schools on defence establishments are to be administered.

Additionally, and without prejudice to the foregoing, the federal Crown has by its own actions made itself subject to provincial statutes, when it decided to create a school system on the St-Hubert military base, since it thereby deliberately entered into a domain of exclusively provincial jurisdiction, and the said school system was not essential to the operation of its military base.

Accordingly, either the federal Crown lacks jurisdiction to create a private school system on a military base, and in that case the schools located there have no legal status, or like any other person the federal Crown has such a power, and in that case, the said school system must remain subject to the control and jurisdiction of the provinces. To interpret the Constitution in any other way would lead to extraordinary results contrary to the intention of the Fathers of Confederation, when they drafted section 93 of the B.N.A. Act.

In short, respondent submits that the federal Crown cannot in any way assume jurisdiction over an area which has in any case been unequivocally assigned, by the British North America Act and subsequently by this Court on several occasions, to exclusively provincial jurisdiction, and if it deliberately invades such an area, it is thereby making itself subject to the applicable provincial statutes.

This passage, which suggests that the federal government has itself made the school subject to all the applicable provincial statutes, including the Labour Code, contains two arguments. The first is based on the actual wording of the order authorizing creation of the school. The second is based on

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the fact that, by choosing to enter an area of exclusive provincial jurisdiction, education, the federal government has thereby made the school subject to provincial statutes. I will return below to the case cited from the Divisional Court of Ontario.

The first argument is based on para. 4(a) of the order:

4. Any school established by the Minister under this Order shall thereupon be operated under the direction of the Minister in accordance with the following arrangements:

(a) The said school shall be administered by the said school committee or board in accordance with the provincial Act respecting schools and under the direct jurisdiction of the Provincial Department of Education;

The effect of this paragraph is certainly not to cause the employees to cease being employees of the federal government. So far as making the Labour Code applicable to them is concerned, it seems to me that this would need a much more explicit provision than the one in question here, which simply states that the school committee or board shall administer the school “in accordance with the provincial Act respecting schools”. The Labour Code is not the provincial Act respecting schools.

The second argument, in my opinion, confuses two quite distinct questions.

First, it is possible that a question may be raised, either in theory or in practice, regarding the power of the federal government to establish schools on military bases and, so to speak, to operate in the field of education reserved to the provinces: but that is not at issue in the case at bar. Respondent carefully refrained from raising this argument, which if it were found to be valid would result in the closing of the school. That surely is not in its interests or in those of its members. Additionally, following the order of this Court determining the constitutional question, neither the Attorney General of Quebec nor any other Attorney General has intervened. It is perhaps worth noting in this connection that as the order made by the Governor General in Council provides, this school was operated in accordance with

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the provincial regulations applicable to education. Counsel for the respondent wrote in his submission:

[TRANSLATION] The children attending these schools were subject to the school programs of the Quebec Department of Education and wrote the examinations prepared by that Department. Accordingly the granting of their diplomas depended on their success in the said examinations, as it did with any other child attending a public school located in the province of Quebec.

Further, given the fact that a school exists and its teachers are federal government employees, I see nothing in s. 91(8), or anywhere else in that section, nor in s. 92 and the other provisions of the Constitution Act, 1867 , to justify making the jurisdiction of Parliament over federal government employees depend on the nature of those employees’ duties.

I come back to the judgment cited, handed down by the Divisional Court of Ontario on September 30, 1980, Re Attorney-General of Canada and Branch Affiliate of Base Borden Collegiate Institute, 30 O.R. 428, in which a majority of the Court held that the provisions of The School Boards and Teachers Collective Negotiations Act, 1975 (Ont.), 1st Sess., c. 72, apply to a secondary school established by the Department of National Defence at the Borden military base. In so far as the decision is correct, which this Court does not have to decide, it differs from the case at bar in several respects. Indeed, the Divisional Court took care to distinguish the case before it from the case at bar. Only the most notable distinctions need be mentioned. In the case of the Borden School, appointment of members of the school board was approved by the Ontario Minister of Education, and the school board was a school board in the same way as other Ontario school boards. It had a legal personality, and it was established that the teachers were the employees of that legal personality, and not employees of the federal Government as in the case at bar.

In my opinion, the constitutional question must be answered in the negative.

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For these reasons, the appeal should be allowed, the judgment of the Court of Appeal reversed and the judgment of the Superior Court restored. Costs will be awarded against appellant in accordance with its proposal.

Appeal allowed.

Solicitors for the appellant: Gaspard Côté and James Mabbutt, Montreal.

Solicitors for the respondent: Adessky, Kingstone, Zerbisias, Poulin, Gervais & Bier, Montreal.