IBEW v. Alberta Government Telephones, [1989] 2 SCR 318

IBEW v. Alberta Government Telephones, [1989] 2 S.C.R. 318

 

Alberta Government Telephones and the

Attorney General for Alberta    Appellants

 

v.

 

Canada Labour Relations Board, and

International Brotherhood of Electrical

Workers, Local Union 348 Respondents

 

and

 

The Attorney General of Canada,

the Attorney General of Quebec,

the Attorney General of Nova Scotia,

the Attorney General for New Brunswick,

the Attorney General of Manitoba,

the Attorney General of British Columbia,

the Attorney General of Prince Edward Island,

the Attorney General for Saskatchewan and

the Attorney General of Newfoundland                                                                          Interveners

 

indexed as:  ibew v. alberta government telephones

 

1987:  November 12, 13; 1989:  August 14.

 

File No.:  20301.

 

Present:  Dickson C.J. and Beetz*, Estey*, McIntyre, Lamer, Wilson, Le Dain*, La Forest and L'Heureux‑Dubé JJ.

 

on appeal from the federal court of appeal

 

    Constitutional law ‑‑ Division of powers ‑‑ Interprovincial work or undertaking ‑‑ Labour relations ‑‑ Provincial telecommunications system found to be interprovincial undertaking under federal jurisdiction ‑‑ Whether or not employees of system subject to regulatory jurisdiction of Canada Labour Relations Board ‑‑ Constitution Act, 1867, s. 92(10) (a) ‑‑ Canada Labour Code, R.S.C. 1970, c. L‑1, ss. 108, 109(1), (2), (3), (4), 124.

 

    Crown ‑‑ Immunity ‑‑ Agent of provincial Crown operating interprovincial telecommunications system ‑‑ Whether or not employees of provincial Crown agent subject to Canada Labour Relations Board ‑‑ Interpretation Act, R.S.C. 1970, c. I‑23, s. 16.

 

    In February, 1986, the IBEW filed two applications with the Canada Labour Relations Board (CLRB) for certification as bargaining agent for specific units of AGT employees pursuant to s. 124 of the Canada Labour Code.  This action was taken after Alberta Government Telephones v. Canadian Radio-television and Telecommunications Commission had proceeded through the federal courts.  The Canada Labour Relations Board assumed jurisdiction over AGT after it found AGT to be subject to federal regulation and not immune from the application of the Canada Labour Code.  The CLRB referred the matter of whether or not it had exceeded its jurisdiction to make these findings to the Federal Court of Appeal.  That court upheld the CLRB's decisions.  The constitutional questions before this Court queried (1) whether AGT was a work or undertaking within federal jurisdiction by virtue of s. 92(10)(a) or otherwise of the Constitution Act, 1867 , and (2) if so, whether AGT was bound by the relevant provisions of the Canada Labour Code.

 

    Held:  The appeal should be allowed.  The first constitutional question should be answered in the affirmative, the second in the negative.

 

    Per Dickson C.J. and McIntyre, Lamer, La Forest and L'Heureux‑Dubé JJ.:  For the reasons given in Alberta Government Telephones v. Canadian Radio‑television and Telecommunications Commission, [1989] 2 S.C.R. 000, AGT is an undertaking within the legislative authority of the Parliament of Canada by virtue of s. 92(10) (a) of the Constitution Act, 1867 , and the first constitutional question must be answered in the affirmative.

 

    The comprehensive scheme for the regulation of industrial relations by the Canada Labour Relations Board under Part V of the Canada Labour Code does not apply to AGT, even though it is a federal work or undertaking under s. 92(10)(a).  Section 16 of the Interpretation Act applies to the provincial Crown and requires a clear Parliamentary expression of an intention to bind the Crown.  This intention has not been clearly expressed with respect to AGT as agent of the Alberta Crown within the context of Part V and its application sections.  The fact that Part V expressly excludes part of the federal Crown cannot ground an inference that Parliament clearly intended at the same time to bind the provincial Crown.  The possible existence of a legal vacuum in labour legislation, arising out of the fact that provincial legislation is constitutionally inapplicable to a federal work or undertaking and that the provincial Crown is immune from the application of the Canada Labour Code, may be inconvenient or even undesirable as a matter of operation or policy.  However, until Parliament chooses to fill the vacuum with an express statement that gives effect to this concern, the role of the judiciary is only to determine if the legislation would be wholly frustrated should the Crown in right of a province be excluded from the relevant provisions of the statute.  Part V of the Code would not be wholly frustrated if the provincial Crown were not bound by it.

 

    AGT did not waive its immunity by taking advantage of a statutory benefit under the Code freed of the concomitant obligations.  No connection or nexus could be drawn between AGT's activities and the relevant provisions of the Code.  AGT exercised its power in a manner consistent with the statutory purposes of the Alberta Government Telephones Act when it entered into the various interconnecting agreements as a part of Telecom Canada.  AGT did not lose its immunity by exceeding its statutory mandate.

 

    Per Wilson J.:  Alberta Government Telephones is an undertaking within the legislative authority of the Parliament of Canada by virtue of s. 92(10) (a) of the Constitution Act, 1867 .  However, AGT did not waive its immunity from the jurisdiction of the Canada Labour Relations Board by simply exercising its powers to engage in a federal undertaking.  No other conduct on the part of the appellant can be construed as constituting a waiver of its right to immunity.

 

Cases Cited

 

By Dickson C.J.

 

    Followed:  Alberta Government Telephones v. Canadian Radio‑television and Telecommunications Commission, [1989] 2 S.C.R. 000; referred to:  R. v. Ouellette, [1980] 1 S.C.R. 568; Her Majesty in right of the Province of Alberta v. Canadian Transport Commission, [1978] 1 S.C.R. 61.

 

By Wilson J.

 

    Followed:  Alberta Government Telephones v. Canadian Radio‑television and Telecommunications Commission, [1989] 2 S.C.R. 000.

 

Statutes and Regulations Cited

 

Alberta Government Telephones Act, R.S.A. 1980, c. A-23.

 

Canada Labour Code, R.S.C. 1970, c. L‑1, ss. 108, 109(1), (2), (3), (4), 124.

 

Constitution Act, 1867 , s. 92(10) (a).

 

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28(4).

 

Interpretation Act, R.S.C. 1970, c. I‑23, s. 16.

 

Public Service Staff Relations Act, R.S.C. 1970, c. P‑35.

 

Public Utilities Board Act, R.S.A. 1980, c. P-37.

 

    APPEAL from a judgment of the Federal Court of Appeal made on a reference under the Federal Court Act upholding the jurisdiction of the Canada Labour Relations Board (1986), 13 CLRBR (NS) 313, 66 di 145.  Appeal allowed; the first constitutional question should be answered in the affirmative, the second in the negative.

 

    Colin K. Irving, John D. Rooke, Peter Hogg, Q.C., and Franklin S. Gertler, for the appellants.

 

    Eric A. Bowie, Q.C., and Donald J. Rennie, for the intervener the Attorney General of Canada.

 

    Jean‑Yves Bernard and Alain Gingras, for the intervener the Attorney General of Quebec.

 

    Reinhold M. Endres, for the intervener the Attorney General of Nova Scotia.

 

    Bruce Judah, for the intervener the Attorney General for New Brunswick.

 

    Glenn McFetridge and Dianne Paskewitz, for the intervener the Attorney General of Manitoba.

 

    E. R. A. Edwards, Q.C., for the intervener the Attorney General of British Columbia.

 

    Roger B. Langille and Charles P. Thompson, for the intervener the Attorney General of Prince Edward Island.

 

    Robert G. Richards, for the intervener the Attorney General for Saskatchewan.

 

    Ronald Stevenson, for the intervener the Attorney General of Newfoundland.

 

    Murray McGown, for the respondent International Brotherhood of Electrical Workers, Local Union 348.

 

    Ian Donald, Q.C., and Judah Levinson, for the respondent Canada Labour Relations Board.

 

//The Chief Justice//

 

    The judgment of Dickson C.J. and McIntyre, Lamer, La Forest and L'Heureux-Dubé JJ. was delivered by

 

    THE CHIEF JUSTICE --

 

I.  Introduction

 

    This appeal raises the same issues as were raised in the Alberta Government Telephones v. Canadian Radio-television and Telecommunications Commission, [1989] 2 S.C.R. 000 (hereinafter AFT v. CRTC).  These cases were heard together.  The issues are, firstly, whether or not Alberta Government Telephones (hereinafter referred to as "AGT") is subject to the regulatory authority of the federal government as an interprovincial undertaking within the meaning of s. 92(10) (a) of the Constitution Act, 1867  and, secondly, whether AGT as a provincial Crown agent is immune from the relevant sections of the Canada Labour Code, R.S.C. 1970, c. L-1, as amended.

 

II.  Facts

 

    This appeal comes as a result of proceedings undertaken by the respondent International Brotherhood of Electrical Workers, Local Union 348 (hereinafter IBEW).  In February 1986, IBEW filed two applications with the Canada Labour Relations Board (hereinafter CLRB) for certification as bargaining agent for specific units of AGT employees pursuant to s. 124 of the Canada Labour Code.  This action was taken after the proceeding in the companion case had proceeded through the federal courts.

 

    The evidence presented to the CLRB consisted almost entirely of excerpts from the evidence placed before the Federal Court, by way of affidavit, in the companion case.  The only additional item of evidence I wish to refer to is a response made by AGT to a question stated in a letter from the Board.  In the letter the Board asked, inter alia, for details on the process by which telephone rates are established for provincial, interprovincial and international telephone rates.  AGT's response is clear and may be reproduced in full:

 

    Rates for services offered by AGT are fixed by AGT and as it relates to Basic Services (i.e. - non-competitive services) are approved by the Public Utilities Board of Alberta.  Rates of Non-Basic Services (competitive services) are set by AGT without specific individual rate approval of the Public Utilities Board or any other authority (subject to AGT meeting certain tests prescribed by the Public Utilities Board).

 

    All of the rates for inter-provincial services are established by AGT based upon negotiation and consultation with other provincial telephone companies in Canada.  Often the rates are different in different directions as a result of lack of agreement or regulatory approval.

 

    Rates for international telephone services, are dependent upon negotiations by AGT or its representatives within Telecom Canada conducted with Teleglobe Canada or directly with American carriers, although the final rate decision relevant thereto is made by AGT subject to approval of the Public Utilities Board of Alberta.

 

    After leave to appeal was granted in this Court, the following constitutional questions were set:

 

1.  Is Alberta Government Telephones a work or undertaking within the legislative authority of the Parliament of Canada by virtue of s. 92(10)(a) or otherwise of the Constitution Act, 1867 ?

 

2.  If the answer to question 1 is in the affirmative, is Alberta Government Telephones bound by the relevant provisions of the Canada Labour Code?

 

III.  The First Constitutional Question - The Jurisdiction Issue

 

(a)                        The Judgments Below

 

    (i)                     Canada Labour Relations Board

 

    The Board relied heavily on the findings of fact made by Reed J. of the Federal Court, Trial Division, in the reasons she delivered in the companion case, now reported at [1985] 2 F.C. 472;  (1984), 15 D.L.R. (4th) 515.  Reed J.'s findings of constitutional facts were accepted by both sides as being accurate.

 

    In IBEW v. Alberta Government Telephones (1986), 13 CLRBR (NS) 313, 66 di 145, the CLRB found that, even apart from the relationship with Telecom, AGT fell under federal jurisdiction (at p. 327):

 

AGT's undertaking is not only a connector between AGT and a neighbouring province, but also a through connector linking, e.g. British Columbia Telephone Company and Saskatchewan Telecommunications .... The direct connection to undertakings in other provinces is a fundamental feature of AGT's operations.  Since not just a single province is involved, the constitution prescribes federal jurisdiction.

 

    The Board explained that simple coordination among enterprises, for example, having a call routed from Calgary to St. John's, Newfoundland, would not be sufficient (at p. 328):

 

The telephone company would only be federal if (1) it were itself making connections between the provinces, or (2) it were part of a broader undertaking that is extraprovincial.

 

    The Board found that AGT met the first test.  The Board declined to deal with AGT's involvement in Telecom Canada although they agreed with Reed J. that the mere fact that Telecom Canada is not incorporated is not of "particular constitutional significance" (p. 329).

 

    (ii)Federal Court of Appeal -- Mahoney J. (Pratte and Heald JJ. concurring)

 

    In the opinion of the Court, no meaningful distinction could be made between the circumstances of this reference by the CLRB and those of the appeal disposed of by the Court of Appeal in AGT v. CRTC.  AGT was therefore seen to be an interprovincial undertaking.

 

(b)                        Disposition of the Jurisdiction Issue

 

    For the reasons given in AGT v. CRTC, AGT is an undertaking within the legislative authority of the Parliament of Canada by virtue of s. 92(10) (a) of the Constitution Act, 1867 , and the first constitutional question must be answered in the affirmative.

 

IV.The Second Constitutional Question -- The Crown Immunity Issue

 

(a)                        The Judgments Below

 

    (i)Canada Labour Relations Board

 

    Upon finding AGT to be a federal work or undertaking, the Board stated that AGT would automatically be covered by Part V of the Canada Labour Code by virtue of s. 108 were it not for the Crown immunity argument.  The Board found that Part V of the Code would not be frustrated if the Crown in right of a province were not bound.  Nevertheless, under a "second branch" of the necessary implication doctrine, the text of the statute itself, could, in the Board's view, remove Crown immunity even if no express reference were made to the Crown.  The Board stated that s. 109 of the Code, which partly includes and partly excludes the federal Crown from Part V, shows a contrary intention to s. 16 of the federal Interpretation Act, R.S.C. 1970, c. I-23.  The Board held that the exclusion of the Crown in right of Canada under s. 109 implies the inclusion of the Crown in right of a province under s. 108.  The Board concluded, therefore, that AGT was not immune from the application of the Canada Labour Code.  

 

    Alternatively, the Board agreed with the Federal Court of Appeal's  analysis in the AGT v. CRTC appeal that AGT, in operating a federal undertaking, stepped outside its Crown purposes thereby losing its immunity and becoming subject to Part V of the Code.  As a result the CLRB assumed jurisdiction over AGT.  The Board considered it appropriate to refer to the Federal Court of Appeal, under s. 28(4) of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, the following two questions:

 

(1)Did the Canada Labour Relations Board err in its jurisdiction in concluding that Alberta Government Telephones falls within federal constitutional competence?

 

(2)Did the Canada Labour Relations Board err in its jurisdiction in concluding that Alberta Government Telephones' claim to Crown immunity does not take it outside the application of Part V of the Canada Labour Code?

 

    (ii)Federal Court of Appeal -- Mahoney J. (Pratte and Heald JJ. concurring)

 

    On the second question, Mahoney J., writing for the Court, stated that no meaningful distinction could be drawn between the reference from the Canada Labour Relations Board and the AGT v. CRTC appeal.  In his view AGT had lost its Crown immunity from the Canada Labour Code by operating a federal undertaking, thereby exceeding the Crown purposes for which it was created.

 

(b)                        Is the Canada Labour Code Binding on the Crown?

 

    Once AGT is classified as a federal work or undertaking under s. 92(10)(a), the respondents contend that it falls within the jurisdiction of the Canada Labour Relations Board under Part V of the Canada Labour Code, as amended by S.C. 1972, c. 18, which sets out a comprehensive scheme for the regulation of industrial relations. Section 108, the general application section for Part V provides:

 

    108.  This Part applies in respect of employees who are employed upon or in connection with the operation of any federal work, undertaking or business and in respect of the employers of all such employees in their relations with such employees and in respect of trade unions and employers' organizations composed of such employees or employers.

 

    For the reasons given in AGT v. CRTC, s. 16 of the Interpretation Act applies to the provincial Crown.  It is evident that s. 108 of the Code makes no express reference to the Crown as being bound thereto.   Rather, Part V is made applicable generally to "employees who are employed upon ... the operation of any federal work, undertaking or business ...."  As was said in AGT v. CRTC, it is precisely against such general provisions that s. 16 of the Interpretation Act protects the Crown.

 

    Section 109, a further application section for Part V of the Code, provides:

 

    109.  (1) This Part applies in respect of any corporation established to perform any function or duty on behalf of the Government of Canada and in respect of employees of any such corporation, except any such corporation, and the employees thereof, that the Governor in Council excludes from the operation of this Part.

 

    (2)  The Governor in Council may exclude from the operation of this Part only those corporations in respect of which a Minister of the Crown, the Treasury Board or the Governor in Council is authorized to establish or to approve some or all of the terms and conditions of employment of persons employed therein.

 

    (3)  Where the Governor in Council excludes any corporation from the operation of this Part, he shall, by order, add the name of that corporation to Part I or Part II of Schedule I to the Public Service Staff Relations Act.

 

    (4)  Except as provided by this section, this Part does not apply in respect of employment by Her Majesty in right of Canada.

 

By section 109(1), (2) and (3), the application of Part V to certain federal Crown corporations is extended (except those excluded by Governor in Council, and placed instead under the Public Service Staff Relations Act, R.S.C. 1970, c. P-35), whether or not they operate a "federal work, undertaking or business".  Section 109(4) excludes from Part V that part of the Crown not covered by s. 109(1), (2) and (3).  It is clear that s. 109 does not mention or refer to employees of the provincial Crown; the reference in s. 109(1) is to "the Government of Canada", and the net effect of s. 109 is that the federal Crown is partly included and partly excluded.  Therefore, AGT, as a provincial Crown agent, could only be covered by the general wording in s. 108, if bound in any way to Part V of the Code.

 

    In my opinion the express exclusion of part of the federal Crown under s. 109 of the Code offers little support for the view that Parliament intended agents of the Crown provincial to be bound under the general words of s. 108.  Section 16  of the federal  Interpretation Act  makes federal enactments binding on the Crown (including the Crown provincial and the Crown in right of Canada) only to the extent that it is "therein mentioned or referred to" as being so bound.   The authorities on s. 16 were reviewed in AGT v. CRTC and need not be repeated here.  This Court concluded in AGT v. CRTC that the words "mentioned or referred to" in s. 16 are capable of encompassing (1) expressly binding words, (2) a clear intention to bind which is manifest from the very terms of the statute (in other words, an intention revealed when provisions are read in the context of other textual provisions), and (3) an intention to bind where the purpose of the statute would be wholly frustrated if the government in question were not bound, or, in other words, if an absurdity (as opposed to simply an undesirable result) were produced.                                                                                     

 

    To bind the Crown, an enactment normally must make an express mention of or reference to the fact that the Crown or "Her Majesty" is subject to the legislation.   As this Court concluded in R. v. Ouellette, [1980] 1 S.C.R. 568, an express statement that the Crown is bound may be unnecessary (though it no doubt clarifies the matter as a matter of legislative drafting) in those limited situations where it can be said that "Her Majesty" may be "implicitly bound by legislation if that is the interpretation which the legislation must be given when it is placed in its context" (at p. 575, emphasis added).   However, this Court has concluded in AGT v. CRTC that s. 16 requires a clear Parliamentary expression of an intention to bind the Crown.  The relevant provisions of the enactment when considered in context must "mention or refer" to the Crown in a manner clearly conveying the intention to bind the Crown.

 

    The explicit partial inclusion of federal employees under s. 109(1), (2) and (3) succeeds in rebutting s. 16's presumption of immunity for the mentioned areas.  Given section 16, it was not necessary for Parliament to then go on in s. 109(4) and explicitly exclude the federal Crown in all other areas.  Section 109(4) must therefore be viewed as a provision ex abundanti cautela, perhaps intended to make absolutely certain that the federal Crown is not caught by s. 108's general wording.  Given section 109(4)'s purpose of making certain that the federal Crown is immune (except for s. 109(1), (2) and (3)), it can hardly be used to ground an inference that Parliament clearly intended at the same time to bind the provincial Crown.  Parliament could easily have included provincial Crown employees as explicitly as it did for certain federal Crown employees in s. 109(1), (2) and (3).  The provincial Crown cannot be prejudiced by the fact that Parliament did not demonstrate the same abundance of caution with respect to provincial Crown interests as with respect to federal Crown interests.  The fact that Parliament may have been immediately concerned with protecting certain interests of the federal Crown (the Crown which Parliament is most concerned with) is as consistent with Parliament having no intention at all regarding the provincial Crown as with it having the intention to bind the provincial Crown.  Unlike in R. v. Ouellette, supra, such a contextual interpretation of s. 108 cannot be said to reveal an intention manifest from the very terms of the statute.  The principle of statutory construction, expressio unius est exclusio alterius, cannot lead to any implication that s. 108 covers provincial Crown employees in the face of the explicit rule of statutory construction in s. 16.  A provision in a statute which excludes the federal Crown or part of the federal Crown does not, without much clearer contextual indicators, raise an inference that any other part of the Crown, in this case the provincial Crown, is intended to be bound:  see Her Majesty in right of the Province of Alberta v. Canadian Transport Commission, [1978] 1 S.C.R. 61, at p. 68.

 

    It was also submitted that the whole of the provincial Crown must implicitly be "mentioned or referred to" in the general application section, s. 108, because otherwise a legal vacuum would exist in labour legislation.  Provincial labour regulation would be inapplicable to AGT employees as a matter of constitutional law and federal legislation would be inapplicable due to immunity of the Crown arising as a matter of statutory interpretation.  Assuming the correctness of this submission, the gap created by Parliament's failure to bind the provincial Crown in the Code may be inconvenient or even undesirable as a matter of operation or policy, but until Parliament chooses to fill the vacuum with an express statement that gives effect to this concern, the role of the judiciary is only to determine if the legislation would be wholly frustrated should the Crown in right of a province be excluded from the relevant provisions of the statute.  Any suggestion that the purposes of Part V of the Code would be wholly frustrated should the provincial Crown not be bound thereto must be rejected.  The vast majority of employees of federal undertakings would continue to be covered by Part V of the Code despite the immunity of the Crown in right of the provinces therefrom.

 

    Therefore, Parliament has failed to express a clear legislative intention within the context of Part V and its application sections to bind AGT as agent of the Crown in right of Alberta.  AGT is immune from the jurisdiction of the Canada Labour Relations Board, unless it has lost its immunity by virtue of its conduct, an inquiry to which I now turn.

 

(c)Has AGT Lost Its Entitlement to Crown Immunityby Virtue of Its Conduct?

 

    (i)Did AGT Lose Its Immunity by Virtue of the Doctrine of Waiver?

 

    No suggestion was made before this Court that AGT waived its claim to immunity by taking advantage of a statutory benefit under the Code freed of the concomitant obligations attached thereto.  In any case, it is clear that no connection or nexus can be drawn between AGT's activities and the relevant provisions of the Code.  AGT has therefore not lost its immunity by operation of the doctrine of waiver:  for a discussion of the doctrine, see AGT v. CRTC.

 

    (ii)Did AGT Lose Its Immunity by Exceeding Its Statutory Mandate or Crown Purposes?

 

    The Attorney General of Canada and the respondents submitted that AGT lost its immunity by exercising its powers to operate a federal undertaking, thereby exceeding the authority granted to it under the Alberta Government Telephones Act, R.S.A. 1980, c. A-23?

 

    The argument is based on the assumption that the Alberta legislature in creating AGT, intended to establish an intraprovincial undertaking regulable only under the provincial Public Utilities Board Act, R.S.A. 1980, c. P-37.  For the reasons given in AGT v. CRTC, a provincial Crown agent does not automatically lose its immunity by entering into the domain of federal regulation so long as it continues to confine its activities within its statutory mandate.  Immunity of the provincial Crown agent would, of course, be lost if the operation of a federal undertaking resulted in the legislation establishing that agent's powers to be ultra vires provincial jurisdiction.  However, before this Court the vires of the Alberta Government Telephones Act was not questioned by any of the parties.  This Court concluded in the AGT v. CRTC decision that by entering into the various interconnecting agreements as a part of Telecom, AGT exercised its power in a manner consistent with the statutory purposes of the Alberta Government Telephones Act.  This conclusion is directly applicable to the case at bar.  Therefore, it cannot be said that AGT lost its immunity by exceeding its statutory mandate.

 

    (iii)Did AGT Lose Its Immunity by Virtue of Being a Commercial Enterprise?

 

    For the reasons given in AGT v. CRTC, there is no "commercial activities" exception to s. 16.

 

(d)Disposition of Immunity Issue

 

    For all the above reasons, AGT is immune from the Canada Labour Relations Board's jurisdiction to consider the two applications for certification of units of employees of AGT under s. 124 of the Canada Labour Code.

 

V.Over-all Disposition of Appeal

 

    The appeal is allowed and the judgment of the Federal Court of Appeal is set aside.  The two constitutional questions are answered as follows:

 

1.  Is Alberta Government Telephones a work or undertaking within the legislative authority of the Parliament of Canada by virtue of s. 92(10)(a) or otherwise of the Constitution Act, 1867 ?

 

    Answer:  Yes.

 

2.  If the answer to question 1 is in the affirmative is Alberta Government Telephones bound by the relevant provisions of the Canada Labour Code?

 

    Answer:  No.

 

    There will be no order as to costs.

 

//Wilson J.//

 

    The following are the reasons delivered by

 

    WILSON J. -- I am in complete agreement with the Chief Justice for the reasons given by him in Alberta Government Telephones v. Canadian Radio-Television and Telecommunications Commission, [1989] 2 S.C.R. 000 (hereinafter AGT v. CRTC) that Alberta Government Telephones ("AGT") is an undertaking within the legislative authority of the Parliament of Canada by virtue of s. 92(10) (a) of the Constitution Act, 1867 .  However, as expressed in my dissenting reasons in that case, I do not share the Chief Justice's view that AGT enjoys Crown immunity from the supervisory control of the CRTC.  I must now consider whether it enjoys Crown immunity from the jurisdiction of the Canada Labour Relations Board.

 

    I can find no basis comparable to that existing in AGT v. CRTC on which it can be said that AGT waived its immunity from the jurisdiction of the Canada Labour Relations Board nor was any advanced to the Court.  I do not believe that simply by exercising its powers to engage in a federal undertaking it lost its immunity.  Nor am I prepared to find at this stage that it lost its immunity by engaging in a purely commercial enterprise although, as mentioned in my dissenting reasons in AGT v. CRTC, I think this is a matter which would merit the attention of the full Court on a future occasion.

 

    I would dispose of the appeal and answer the constitutional questions in the manner suggested by the Chief Justice.

 

    Appeal allowed; the first constitutional question should be answered in the affirmative, the second in the negative.

 

    Solicitors for the appellants:  Burnet, Duckworth & Palmer, Calgary.

 

    Solicitor for the intervener the Attorney General of Canada:  The Deputy Attorney General of Canada, Ottawa.

 

    Solicitor for the intervener the Attorney General of Quebec:  The   Attorney General of Quebec, Ste‑Foy.

 

    Solicitor for the intervener the Attorney General of Nova Scotia: The  Attorney General of Nova Scotia, Halifax.

 

    Solicitor for the intervener the Attorney General for New Brunswick: The Deputy Attorney General for New Brunswick, Fredericton.

 

    Solicitor for the intervener the Attorney General of Manitoba:  Tanner Elton, Winnipeg.

 

    Solicitor for the intervener the Attorney General of British Columbia:  The Attorney General of British Columbia, Victoria.

 

    Solicitor for the intervener the Attorney General of Prince Edward Island:  The Attorney General of Prince Edward Island, Charlottetown.

 

    Solicitor for the intervener the Attorney General for Saskatchewan:  Brian Barrington‑Foote, Regina.

 

    Solicitor for the intervener the Attorney General of Newfoundland:  The Attorney General of Newfoundland, St. John's.

 

    Solicitors for the respondent Canada Labour Relations Board:  Rankin and Company, Vancouver.

 

    Solicitors for the respondent International Brotherhood of Electrical Workers, Local Union 348:  McGown, Johnson, Calgary.