SUPREME
COURT OF CANADA
Between:
Consolidated
Fastfrate Inc.
Appellant
and
Western
Canada Council of Teamsters, Consolidated Fastfrate
Transport
Employees’ Association of Calgary and
Alberta
Labour Relations Board
Respondents
‑ and ‑
Attorney
General of Ontario and Attorney General of Quebec
Interveners
Coram: McLachlin C.J. and Binnie, LeBel, Deschamps, Fish,
Abella, Charron, Rothstein and Cromwell JJ.
Reasons for
Judgment:
(paras. 1 to 81)
Dissenting
Reasons:
(paras. 82 to 119)
|
Rothstein J. (LeBel, Deschamps, Abella, Charron and
Cromwell JJ. concurring)
Binnie J. (McLachlin C.J. and
Fish J. concurring)
|
______________________________
Consolidated Fastfrate Inc. v. Western Canada Council of
Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407
Consolidated Fastfrate Inc. Appellant
v.
Western
Canada Council of Teamsters,
Consolidated
Fastfrate Transport Employees’
Association
of Calgary and Alberta Labour
Relations Board Respondents
and
Attorney
General of Ontario and
Attorney General of Quebec Interveners
Indexed as: Consolidated Fastfrate Inc. v. Western
Canada Council of Teamsters
Neutral citation: 2009 SCC 53.
File No.: 32290.
2009: February 19;
2009: November 26.
Present: McLachlin C.J. and Binnie, LeBel,
Deschamps, Fish, Abella, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal
for alberta
Constitutional law — Division of powers — Labour
relations — Transportation undertaking — Freight forwarding company providing
consolidation and deconsolidation and pickup and delivery services to its
customers across Canada — Company having integrated national corporate
structure with branch offices throughout Canada and contracts with third-party
interprovincial carriers — Whether labour relations of branch employees subject
to provincial or federal jurisdiction — Whether company qualifies as
interprovincial undertaking even though it does not itself perform
interprovincial carriage of goods — Constitution Act, 1867, s. 92(10) (a).
Fastfrate is a freight forwarding company with branches
across Canada, including the Calgary branch. Using its own terminal employees
and mostly its own local drivers and trucks, one Fastfrate branch picks up and
consolidates freight within the originating province, while another branch
deconsolidates and delivers the freight in the receiving province. Fastfrate
employees and equipment do not cross provincial boundaries. Fastfrate
contracts with third-party trucking and railway companies for the
interprovincial carriage of the goods and, except in one unusual case, its
employees play no role in the operation of those companies’ transportation
systems. Fastfrate has an integrated national corporate structure with a head
office in Ontario and a team of three regional vice‑presidents who
oversee a series of local branch offices throughout Canada, each with a branch
manager who is responsible for the day‑to‑day management of the
branch. Employees at the branch offices deal directly with consignors and
consignees and manage their own accounts receivable, but decisions regarding
rates, asset acquisition and other matters of general profitability are made at
the regional or national level.
The union representing the Fastrate Calgary employees
applied to the Alberta Labour Relations Board for a declaration on whether the
labour relations of Fastfrate Calgary are subject to provincial or federal
regulation. This application was in response to an earlier application by
another union to be certified by the Canada Industrial Relations Board as the
regional bargaining unit of Fastfrate employees for Alberta, Saskatchewan and
Manitoba. The Board held that Fastfrate Calgary was subject to federal
jurisdiction because it was part of a single, indivisible, interprovincial
freight transportation undertaking. The reviewing judge quashed the Board’s
decision and reaffirmed the existing provincial certification order, holding
that absent any physical involvement in the interprovincial carriage of goods,
there was “insufficient reason to displace the dominant presumption of
provincial jurisdiction over labour relations”. The Court of Appeal, in a
majority decision, restored the Board’s decision.
Held
(McLachlin C.J. and Binnie and Fish JJ. dissenting): The appeal
should be allowed.
Per LeBel, Deschamps,
Abella, Charron, Rothstein and Cromwell JJ.: The employees of Fastfrate
Calgary are subject to provincial jurisdiction. The question whether an
undertaking, service or business is a federal one depends on the nature of its
operation. An undertaking that performs consolidation and deconsolidation and
local pickup and delivery services does not become an interprovincial
undertaking simply because it has an integrated national corporate structure
and contracts with third-party interprovincial carriers. Fastfrate’s
operations are entirely intraprovincial. Neither Fastfrate employees, nor its
equipment, are involved in any actual interprovincial transport.
Section 92(10) (a) of the Constitution Act, 1867 and the
jurisprudence interpreting it do not contemplate that a mere contractual
relationship between a shipper and an interprovincial carrier would qualify
Fastfrate as an undertaking connecting the provinces or extending beyond the
limits of the province. Rather, it is the carriers that physically transport
the freight interprovincially that constitute federal transportation works and
undertakings. There is no indication that contracting alone can make
intraprovincial undertakings subject to federal jurisdiction. The operational
reality of Fastfrate is that it depends on third‑party interprovincial
carriers to conduct its business. Fastfrate remains a shipper. Its presence
at both the originating and terminating ends may mean that it can provide a comprehensive
service to its customers, but this does not change the fact that it is still
only a shipper using an interprovincial railway or trucking company. [3] [61]
[69] [70] [72] [75]
The s. 92(13) provincial head of power over
“Property and Civil Rights” in the provinces includes labour relations. By way
of exception, Parliament may assert exclusive jurisdiction over these matters
if it is shown that such jurisdiction is an integral part of its primary
competence over some other single federal subject. Section 92(10) (a)
provides for such an exception to the provincial jurisdiction over “Local Works
and Undertakings” by granting to the federal government authority over “Lines
of Steam or other Ships, Railways, Canals, Telegraphs, and other Works and
Undertakings connecting the Province with any other or others of the Provinces,
or extending beyond the Limits of the Province”. However, having regard to the
historical context of s. 92(10) and its underlying purpose, the preference
for diversity of regulatory authority over works and undertakings should be
respected, absent a justifiable reason that exceptional federal jurisdiction
should apply. [27‑28] [35] [39]
In this case, there was no compelling reason to depart
from the general rule that works and undertakings are regulated by the
provinces. Section 92(10) (a) focusses specifically on
transportation and communication works and undertakings through its examples of
“Lines of Steam or other Ships, Railways, Canals, Telegraphs”. The common
thread among the enumerated transportation works and undertakings in
s. 92(10) (a) is the interprovincial transport of goods or persons.
The enumerated examples are all instruments of or means of facilitating actual
transport. There is no reference to, or implication of, third parties
connected to the means of actual transport through contract being subject to
federal jurisdiction. The genus of transportation works and undertakings
contemplated in s. 92(10) (a) as “connecting the Province with any
other or others of the Provinces, or extending beyond the Limits of the
Province” consists of those that physically connect the provinces through
transport, not those that notionally connect them through contract. The basket
clause “other Works and Undertakings” is to be read ejusdem generis with
the specific examples which precede it. A requirement for federal jurisdiction
over transportation undertakings is that the undertaking itself physically
operates or facilitates carriage across interprovincial boundaries. The line
of cases holding that freight forwarders that are not themselves engaged in the
interprovincial transport of freight and that simply contract with
interprovincial carriers remain subject to provincial jurisdiction should be
upheld. [3] [42‑44] [48]
Finally, under s. 92(10) (a), there is a
difference between the communications and transportation contexts.
Communications undertakings can operate and provide international and
interprovincial communication services from a fixed point whereas
transportation, by definition, involves mobility of goods, persons, and
transportation equipment across territory. In the transportation context, it
is not possible for an undertaking to operate an interprovincial transportation
service where it does not itself perform the interprovincial carriage. A
business can act as an intermediary between interprovincial carriers and
consumers who want to access those carriers at a reduced price. This does not
mean that such a business becomes the operator and provider of the
interprovincial carriage. The objective of predictability in the freight‑forwarding
context strongly suggests that the industry should be considered holistically
and the prior jurisprudence of the courts concerning the industry should be
respected. [60‑61] [65] [67]
Per McLachlin C.J.
and Binnie and Fish JJ. (dissenting): Fastfrate is an interprovincial
transportation undertaking and its labour relations ought to be subject to
federal regulation. In an era where contracting out elements of a service
business is commonplace, the modalities of how a truly interprovincial
transportation operation “undertakes” to move its customers’ freight from one
part of Canada and deliver it to another should not contrive to defeat federal
jurisdiction. Checkerboard provincial regulation is antithetical to the
coherent operation of a single functionally integrated indivisible national
transportation service. [83‑84] [118]
In order to be characterized as an interprovincial
transportation undertaking, there is no requirement that the entity must itself
physically transport goods across a provincial boundary. Whether an
undertaking, service or business is a federal one depends on the nature of its
operation. Here, Fastfrate’s undertaking is much more than that of a mere
shipper. It provides a customer‑to‑customer interprovincial
service. It handles the shipment both in the province of origin and in the
province of destination. An undertaking that offers an interprovincial service
is no less an interprovincial undertaking because part of the performance of
its undertaking is contracted out to unaffiliated service providers. [85] [99]
[106] [113]
The interpretation of the division of legislative powers
and of how they interrelate must evolve and must be tailored to the changing political
and cultural realities of Canadian society. Although the passage of time does
not alter the division of powers, the arrangement of legislative and executive
powers entrenched in the Constitution Act, 1867 must be applied in light
of the business realities of 2009 and not frozen in 1867. The current Canadian
economy would be unrecognizable to the statesmen of 1867. A grown man is not
expected to wear the same coat that fitted him as a child. Today’s coat is of
the same design, but the sleeves are longer and the chest is broader and the
warp and woof of the fabric is more elaborate and complex. [89‑90]
Adopting a purposive approach to constitutional
interpretation, what is important is not how transportation was viewed in 1867
but rather to match in our own era the level of regulation (federal, provincial
or territorial) appropriate to the nature and scope of the undertaking. The
Constitution nowhere gives the provinces general jurisdiction in relation to
“Works and Undertakings”. Section 92(10) only gives the provinces
jurisdiction over local works and undertakings. To the extent such local works
and undertakings connect the province “with any other or others of the
Provinces or extending beyond the Limits of the Province”, they are now, as in 1867,
regulated federally pursuant to s. 91(29). By contracting out part of its
transportation operations Fastfrate does not escape federal jurisdiction. [84]
[90] [96]
Furthermore, although the technology may differ from one
industry to the other, the legal test to determine what constitutes an
interprovincial undertaking under s. 92(10) (a) is the same whether
it is applied to a communication or a transportation undertaking. No
distinction should be drawn and none has been drawn to date in this Court’s
cases. The test formulated in the s. 92(10) (a) cases is a
functional test and it requires a court to focus on what transportation service
Fastfrate undertakes to provide to its customers — local or interprovincial.
The outcome does not depend on whether, in carrying out its interprovincial
freight contracts, Fastfrate does or does not contract with another corporate
entity to move the goods across an interprovincial or international boundary.
The majority’s proposed test focusses on the means through which the
undertaking is carried on rather than on the interprovincial service it
provides to its customers. [85‑86] [104] [107]
In this case, it is evident that Fastfrate operates as a
single enterprise and one could not separate the local from the interprovincial
without gutting Fastfrate’s enterprise as it presently exists. Although
Fastfrate attempted to characterize its provincial terminals as relatively
independent and self‑contained, the fact is that a Fastfrate terminal at
the point of a shipment’s origin has to be functionally integrated with the
operation of the Fastfrate terminal at the point of delivery in order to
perform its interprovincial pickup and delivery service. This is not the case
of a company that is simply present in each province with a stand‑alone
operation. On the contrary, each Fastfrate terminal is dependent on its sister
terminals; the service offered depends on functional integration in the
performance of Fastfrate’s contractual interprovincial undertaking to its
customers. [116‑117]
Cases Cited
By Rothstein J.
Applied: Northern
Telecom Ltd. v. Communications Workers of Canada,
[1980] 1 S.C.R. 115; United Transportation Union v. Central Western Railway
Corp., [1990] 3 S.C.R. 1112; distinguished: Alberta Government
Telephones v. Canada (Canadian Radio‑television and Telecommunications
Commission), [1989] 2 S.C.R. 225; disapproved: D.H.L.
International Express Ltd. (1994), 96 di 106; approved: In re
Cannet Freight Cartage Ltd., [1976] 1 F.C. 174; Re The Queen and
Cottrell Forwarding Co. (1981), 124 D.L.R. (3d) 674; referred to: Reference
re Industrial Relations and Disputes Investigation Act, [1955] S.C.R. 529; Cuddy
Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; Lévis
(City) v. Fraternité des policiers de Lévis Inc., 2007 SCC 14, [2007] 1
S.C.R. 591; Toronto Electric Commissioners v. Snider, [1925] A.C. 396; Canadian
Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; R. v. Big M
Drug Mart Ltd., [1985] 1 S.C.R. 295; R. v. Blais, 2003 SCC 44,
[2003] 2 S.C.R. 236; Commission du salaire minimum v. Bell Telephone Co. of
Canada, [1966] S.C.R. 767; In re Regulation and Control of Radio
Communication in Canada, [1932] A.C. 304; Attorney‑General for
Ontario v. Winner, [1954] A.C. 541; Consumers’ Association of Canada v.
Postmaster General, [1975] F.C. 11; Re Ottawa‑Carleton Regional
Transit Commission and Amalgamated Transit Union, Local 279 (1983), 4
D.L.R. (4th) 452; Public Service Board v. Dionne, [1978] 2 S.C.R. 191; Windsor
Airline Limousine Services Ltd. and U.S.W.A. (1999), 56 C.L.R.B.R. (2d) 70;
Canadian Pacific Railway Co. v. Attorney‑General for British Columbia,
[1950] A.C. 122; City of Montreal v. Montreal Street Railway, [1912]
A.C. 333.
By Binnie J. (dissenting)
United Transportation Union v. Central Western
Railway Corp., [1990] 3 S.C.R. 1112; Northern
Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115; Alberta
Government Telephones v. Canada (Canadian Radio‑television and
Telecommunications Commission), [1989] 2 S.C.R. 225; R. v. Toronto
Magistrates, Ex Parte Tank Truck Transport Ltd., [1960] O.R. 497; R. v.
Cooksville Magistrate’s Court, Ex parte Liquid Cargo Lines Ltd., [1965] 1
O.R. 84; Public Service Board v. Dionne, [1978] 2 S.C.R. 191; Canadian
Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3; Commission du
salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767; In
re Regulation and Control of Radio Communication in Canada, [1932] A.C.
304; Attorney‑General for Ontario v. Winner, [1954] A.C. 541; Téléphone
Guèvremont Inc. v. Québec (Régie des télécommunications) (1992), 99 D.L.R.
(4th) 241, aff’d [1994] 1 S.C.R. 878; Capital Cities Communications Inc. v.
Canadian Radio‑Television Commission, [1978] 2 S.C.R. 141; Re The
Queen and Cottrell Forwarding Co. (1981), 124 D.L.R. (3d) 674; In re
Cannet Freight Cartage Ltd., [1976] 1 F.C. 174; D.H.L. International
Express Ltd. (1994), 96 di 106.
Statutes and Regulations Cited
Canada Labour Code, R.S.C. 1985, c. L‑2 .
Constitution Act, 1867,
ss. 91(29) , 92(10) (a), (13) , 95 .
Railway Act, 1868, S.C. 1868, c. 68.
Authors Cited
Browne, Gerald Peter. Documents
on the Confederation of British North America. Toronto: McClelland and
Stewart, 1969.
Coyne, H. E. B. The Railway Law of
Canada. Toronto: Canada Law Book, 1947.
Fraser, I. H. “Some Comments on
Subsection 92(10) of the Constitution Act, 1867 ” (1984), 29 McGill L.J.
557.
Hogg, Peter W. Constitutional Law of Canada,
vol. 1, 5th ed. Scarborough, Ont.: Thomson/Carswell, 2007.
Kennedy, W. P. M. Documents of the
Canadian Constitution 1759‑1915. Toronto: Oxford University Press,
1918.
Kennett, Steven A. “Jurisdictional Uncertainty
and Pipelines: Is a Judicial Solution Possible?” (1997), 35 Alta. L. Rev.
553.
Labour Law Casebook Group. Labour and Employment
Law: Cases, Materials, and Commentary, 7th ed. Toronto: Irwin Law, 2004.
McNairn, Colin H. “Transportation,
Communication and the Constitution: The Scope of Federal Jurisdiction” (1969),
47 Can. Bar Rev. 355.
Whyte, John D. “Constitutional
Aspects of Economic Development Policy”, in Division of Powers and Public
Policy. Toronto: University of Toronto Press, 1985, 29.
APPEAL from a judgment of the Alberta Court of Appeal
(Conrad, Watson and Slatter JJ.A.), 2007 ABCA 198, 79 Alta. L.R. (4th)
201, 412 A.R. 97, 404 W.A.C. 97, 285 D.L.R. (4th) 137, 147 C.L.R.B.R. (2d) 176,
[2007] 11 W.W.R. 579, 67 Admin. L.R. (4th) 1, [2008] CLLC ¶220‑019,
[2007] A.J. No. 857 (QL), 2007 CarswellAlta 1010, setting aside a decision
of Hart J., 2005 ABQB 977, 59 Alta. L.R. (4th) 266, 390 A.R. 354, 263
D.L.R. (4th) 157, 120 C.L.R.B.R. (2d) 301, [2006] 9 W.W.R. 497, [2006] CLLC ¶220‑004,
[2005] A.J. No. 1793 (QL), 2005 CarswellAlta 1923, allowing an application
for judicial review of a decision of the Alberta Labour Relations Board (2005),
114 C.L.R.B.R. (2d) 1, [2005] Alta. L.R.B.R. 238, [2005] A.L.R.B.D. No. 92
(QL), 2005 CarswellAlta 940. Appeal allowed, McLachlin C.J. and Binnie
and Fish JJ. dissenting.
Thomas W. R. Ross and Trisha Gain, for the appellant.
Clayton Cook, for the
respondent the Western Canada Council of Teamsters.
Shawn W. McLeod,
for the respondent the Alberta Labour Relations Board.
No one appeared for the respondent the Consolidated
Fastfrate Transport Employees’ Association of Calgary.
Michael T. Doi
and Mark Crow, for the intervener the Attorney General of Ontario.
Alain Gingras, for
the intervener the Attorney General of Quebec.
The judgment of LeBel, Deschamps, Abella, Charron,
Rothstein and Cromwell JJ. was delivered by
[1]
Rothstein J. — The issue
in this appeal is whether the labour relations of employees of the Calgary
branch of Consolidated Fastfrate Transport Inc. (“Fastfrate”) are subject to
provincial jurisdiction under s. 92(13) of the Constitution Act, 1867 or
federal jurisdiction pursuant to the exception contained in s. 92(10) (a).
[2]
This appeal concerns freight forwarding — an industry in which companies
consolidate and deconsolidate freight and contract for its shipment with third‑party
rail and truck carriers, including interprovincial ones. Fastfrate provides
consolidation and deconsolidation and pickup and delivery services to its
customers across Canada. It typically acts as the consignor and consignee for
the third-party carrier such that customers receive a single bill of lading.
The question in this case is whether Fastfrate’s provision of such services
qualifies it as an interprovincial undertaking even though it does not itself
perform any interprovincial carriage of goods.
[3]
I am of the view that an undertaking that performs consolidation and
deconsolidation and local pickup and delivery services does not become an
interprovincial undertaking simply because it has an integrated national
corporate structure and contracts with third-party interprovincial carriers.
Fastfrate does not perform any interprovincial carriage itself. Absent this, I
see no compelling reason to depart from the general rule that works and
undertakings are regulated by the provinces. Accordingly, the labour relations
of the employees of Calgary Fastfrate are subject to provincial jurisdiction.
I would therefore allow the appeal.
I. Facts
[4]
The market niche of freight forwarding companies is the consolidation
and deconsolidation of freight. This is their economic raison d’être.
The consolidation and deconsolidation of freight allows customers to benefit
from an economy of scale when accessing third-party carriers. As the Alberta
Labour Relations Board (“ALRB”) noted, “[b]y pooling the small shipments of
many customers into full‑truckload shipments, Fastfrate can realize
economies of scale that the individual customer cannot easily realize, and so
can pass the savings to the customer” ((2005), 114 C.L.R.B.R. (2d) 1, at para.
8). Without this consolidation service, customers sending less‑than‑truckload
and less-than-carload shipments would face substantially higher costs.
[5]
Fastfrate is a freight forwarding company with branches across Canada,
including the Calgary branch at issue in this case. Fastfrate employees pick
up and consolidate freight within the originating province and employees of
another Fastfrate branch deconsolidate and deliver the freight in the receiving
province. Fastfrate contracts with third-party trucking and railway companies,
primarily the Canadian Pacific Railway Company (“CPR”), for the interprovincial
carriage of the goods.
[6]
In most cases, Fastfrate and its employees play no role in the operation
of CPR’s interprovincial railway system. As the ALRB noted, “[o]nly CP Rail
employees and equipment load and unload rail cars” (para. 18). The one
exception to this rule is in Thunder Bay, where Fastfrate “has a contract to
act as the yard operator for CP Rail’s small intermodal terminal facility”
(para. 18).
[7]
The ALRB also found that Fastfrate’s employees and equipment do not
cross provincial boundaries, subject to one now discontinued exception. Until
November 2004, Fastfrate employees transported freight between their Ottawa and
Montreal branches. Fastfrate ceased this practice in 2004, in part, because it
raised a “contentious issue” for jurisdictional determinations (para. 17). The
ALRB found these exceptions relevant only insofar as they proved the “rule” of
Calgary Fastfrate’s operations:
That rule is,
as we have stated: Fastfrate performs the pick-up and consolidation of freight
at one end of the transaction and it performs the deconsolidation and delivery
at the other end of the transaction, using its own terminal employees and
mostly (but not exclusively) its own local drivers and trucks. But any
component of its service that involves transport of the freight across provincial
boundaries is contracted to a third-party interprovincial road or rail carrier.
[Emphasis added; para. 19.]
[8]
In terms of corporate structure, Fastfrate’s head office is located in
Mississauga, Ontario. Fastfrate has a team of three regional vice‑presidents
who, with regional managers, oversee a series of local branch
offices throughout Canada, each with a branch manager. Decisions regarding
rates, asset acquisition and other matters of general profitability are made at
the regional or national level (ALRB, at para. 31). Employees at the branch
offices deal directly with consignors, consignees and manage their own accounts
receivable (ALRB, at para. 30). Branch managers are responsible for the
day-to-day management of each branch, including hiring, dismissing and
scheduling employees. However, regional managers will only sign collective
agreements with the approval of a regional vice‑president (ALRB, at para.
33).
II. Judicial History
[9]
In June 2004, the Consolidated Fastfrate Transport Employees’
Association of Calgary (“Calgary Association”) applied to the ALRB for a
declaration on whether the labour relations of Calgary Fastfrate are subject to
provincial or federal regulation. This application was in response to an
earlier application by the Western Canada Council of Teamsters (“Teamsters”) to
be certified by the Canada Industrial Relations Board as the regional
bargaining unit of Fastfrate employees for Alberta, Saskatchewan and Manitoba
(ALRB, at para. 4). The Teamsters’ consolidation application, if successful,
would have had “the effect of displacing or ‘raiding’ the [Calgary] association
for its Calgary bargaining unit” (ALRB, at para. 4).
A. Decision
of the Alberta Labour Relations Board (2005), 114 C.L.R.B.R. (2d) 1
[10] In its
July 2005 decision, the ALRB held that Calgary Fastfrate’s operations were
within federal jurisdiction and, therefore, subject to the Canada Labour
Code, R.S.C. 1985, c. L‑2 .
[11] The
ALRB considered and rejected the Teamsters’ argument that Calgary Fastfrate’s
labour relations are subject to federal regulation on the basis of
“‘derivative’ federal jurisdiction”. The ALRB found that Fastfrate’s
operations were not “essential or integral” to the CPR or any other
interprovincial undertaking: see Reference re Industrial Relations and
Disputes Investigation Act, [1955] S.C.R. 529 (the “Stevedores Reference”).
The ALRB concluded that the jurisdictional analysis must centre on the nature
of Fastfrate as an undertaking in its own right.
[12] The
ALRB relied heavily on evidence of organizational integration between
Fastfrate’s head office and its branches in its jurisdictional analysis. The
ALRB applied the “dominant purpose” approach adopted by the Canada Labour
Relations Board (“CLRB”) in D.H.L. International Express Ltd. (1994),
96 di 106 (“DHL”), and the “three‑fold unity” test proposed by
S. A. Kennett in his article, “Jurisdictional Uncertainty and Pipelines: Is a
Judicial Solution Possible?” (1997), 35 Alta. L. Rev. 553. When the
ALRB examined “the operations of the Calgary Fastfrate location and the rest of
the Fastfrate organization for unity of ownership, unity of purpose and unity
of control”, it concluded that “the Calgary Fastfrate location is part of a
single, indivisible interprovincial undertaking” (para. 55).
[13] The
ALRB distinguished the facts of the present case from In re Cannet Freight
Cartage Ltd., [1976] 1 F.C. 174, and Re The Queen and Cottrell
Forwarding Co. (1981), 124 D.L.R. (3d) 674. In Cannet and Cottrell,
the Federal Court of Appeal and the Ontario Divisional Court respectively held
that freight forwarders were subject to provincial jurisdiction. The ALRB
distinguished the present case on the basis that “in neither Cannet nor Cottrell
was there evidence that the freight forwarder regularly engaged in
deconsolidation and delivery of freight on its own account at the destination
end of the shipment” (para. 51). In the ALRB’s view, this fact, along with
Fastfrate’s integrated corporate structure, was sufficient to constitute
Fastfrate as an interprovincial undertaking for constitutional purposes.
B. Decision of the Court of
Queen's Bench of Alberta (Hart J.), 2005 ABQB 977, 59 Alta. L.R.
(4th) 266
[14] Fastfrate
sought judicial review of the ALRB decision. The reviewing judge quashed the
ALRB decision and held that Calgary Fastfrate’s labour relations were subject
to provincial regulation. He reaffirmed the existing provincial certification
order.
[15] The
reviewing judge agreed with the ALRB that derivative federal jurisdiction was
not at issue in this case. He found Fastfrate’s operations easily
distinguishable from the stevedoring company in the Stevedores Reference.
[16] As for
the proper characterization of Fastfrate as an undertaking, the central
question for the reviewing judge was whether “Fastfrate [is] best described as
a series of effectively independent intra‑provincial undertakings,
albeit grouped within an overarching corporate control architecture, or . . .
as a single undertaking with a dominant interprovincial purpose?” (para.
23 (emphasis in original)). He concluded that the existence of an overarching
corporate structure was insufficient to qualify Fastfrate and its provincial
branches as a single federal undertaking. Absent any physical involvement in
the interprovincial carriage of goods, there was “insufficient reason to
displace the dominant presumption of provincial jurisdiction over labour
relations” (para. 44).
C. Decision
of the Alberta Court of Appeal, 2007 ABCA 198, 79 Alta. L.R. (4th) 201
(i) Watson and Slatter JJ.A. for the Majority
[17] Watson
J.A. for the majority of the Court of Appeal held that the reviewing judge
erred in law when he overturned the ALRB’s decision and affirmed the provincial
certification order. Watson J.A. concluded that Fastfrate “operates an
interprovincial freight collection and delivery service” (para. 75) and is
therefore subject to federal regulation.
[18] Watson
J.A. took issue with the reviewing judge’s emphasis on physical involvement in
interprovincial carriage. On their reading, the jurisprudence does not require
a “threshold of tangible and physical connection” between provinces for an
undertaking to qualify as interprovincial under s. 92(10) (a) (para.
46). Rather, the focus should be on the functional nature of the undertaking.
“[T]he test”, Watson J.A. wrote, “must consider the reality of the situation
globally” (para. 53).
[19] Watson
J.A. was persuaded by the CLRB’s reasoning in DHL. In that case, the
CLRB held that the freight forwarder D.H.L. International Express Ltd. (“DHL
Ltd.”) was subject to federal jurisdiction. DHL Ltd. was an “express pick‑up
and delivery courier service” with offices throughout Canada (p. 107). It
contracted with commercial and charter airlines to provide express delivery to
interprovincial and international destinations. The CLRB found that even
though DHL Ltd. contracted out actual interprovincial and international
transportation, its “dominant purpose” was nevertheless interprovincial. The
CLRB held that DHL Ltd. was a single, indivisible federal undertaking engaged
in the international and interprovincial delivery of goods and documents.
Watson J.A. concluded that “[t]he DHL case is sound” (para. 71).
[20] Applying
the reasoning in DHL to the present case, the majority of the Court of
Appeal concluded that Fastfrate operates as “an interprovincial freight
collection and delivery service” (para. 75). Fastfrate’s labour relations were
therefore found to be subject to federal regulation under the s. 92(10) (a)
exception.
(ii) Conrad J.A. (in Dissent)
[21] Conrad
J.A. held, in dissent, that Fastfrate’s labour relations are subject to
provincial regulation. Conrad J.A. focussed on the specific services that
Fastfrate performs, rather than the services which it contracts out. She noted
that Fastfrate collects, organizes, consolidates, and deconsolidates freight at
a variety of branches and negotiates rates for third-party transportation
(para. 82). The only transportation services Fastfrate actually performs
itself are intraprovincial pickups and deliveries. All interprovincial
transportation is carried out by third parties. For Conrad J.A., it “follow[ed]
that Fastfrate is not an interprovincial or international transportation
undertaking” (para. 82). The fact that its provincial operations are
functionally integrated into a single corporate structure does not change the
reality that the only transportation services Fastfrate performs itself are
intraprovincial.
[22] Conrad
J.A. concluded that the ALRB erred by focussing on the degree of corporate
integration between Fastfrate’s provincial branches and its head office. For
Conrad J.A., the ALRB’s constitutional inquiry was skewed from the outset
because it focussed on the unity of the national enterprise, rather than
determining whether there was an interprovincial undertaking in the first place
(para. 106). In order to determine whether Fastfrate is an interprovincial
transportation undertaking, the ALRB should have considered whether Fastfrate
was actually “transporting” freight across provincial or international
boundaries. This analysis was never undertaken by the ALRB.
[23] Unlike
the majority, Conrad J.A. did not accept the CLRB’s reasoning in DHL.
She disagreed that a freight forwarder that does not itself perform
interprovincial carriage of freight can nevertheless be considered an
interprovincial transportation undertaking (para. 118). In her view, the fact
that a company, such as DHL Ltd. or Fastfrate, may have a national head office
and an integrated network of provincial terminals does not transform it into an
interprovincial undertaking subject to federal jurisdiction. Likewise, the
existence of corporate contracts between a freight forwarder and
interprovincial carriers does not change the nature of the freight forwarder
undertaking itself.
[24] Conrad
J.A. therefore concluded that Fastfrate was not an interprovincial undertaking
pursuant to s. 92(10) (a). She would have dismissed the appeal.
III. Relevant
Constitutional Provisions
[25] This
case concerns the classification of an “undertaking” pursuant to the Constitution
Act, 1867 . The relevant sections are:
91. . . . the exclusive Legislative Authority of the Parliament
of Canada extends to all Matters coming within the Classes of Subjects next
hereinafter enumerated; that is to say, —
.
. .
29. Such
Classes of Subjects as are expressly excepted in the Enumeration of the Classes
of Subjects by this Act assigned exclusively to the Legislatures of the
Provinces.
.
. .
92. In each Province the Legislature may exclusively make
Laws in relation to Matters coming within the Classes of Subjects next
hereinafter enumerated; that is to say, —
.
. .
10. Local
Works and Undertakings other than such as are of the following Classes: —
a.
Lines of Steam or other Ships, Railways, Canals, Telegraphs, and other Works
and Undertakings connecting the Province with any other or others of the
Provinces, or extending beyond the Limits of the Province:
.
. .
13. Property and Civil Rights in the
Province.
IV. Analysis
A. Standard
of Review
[26] The
parties agree that the applicable standard of review in cases of constitutional
interpretation is correctness: see Cuddy Chicks Ltd. v. Ontario (Labour
Relations Board), [1991] 2 S.C.R. 5, at p. 17. However, as the respondent
Teamsters also note, the ALRB’s constitutional analysis rested on its factual
findings. Where it is possible to treat the constitutional analysis separately
from the factual findings that underlie it, curial deference is owed to the initial
findings of fact: see Lévis (City) v. Fraternité des policiers de Lévis Inc.,
2007 SCC 14, [2007] 1 S.C.R. 591, at para. 19. In the present case, I agree
with the majority of the Court of Appeal that the ALRB’s factual findings
regarding the operations and organizational structure of Fastfrate merit
deference.
B. Constitutional
Landscape of Labour Relations
[27] The
basic rule in the division of powers over labour relations is that the
provinces have jurisdiction over industries that fall within provincial
legislative authority and the federal government has jurisdiction over those
that fall within federal legislative authority: see Labour and Employment
Law: Cases, Materials, and Commentary (7th ed. 2004), at p. 85. However,
as the jurisprudence makes clear, federal jurisdiction has been interpreted
narrowly in this context. In Toronto Electric Commissioners v. Snider,
[1925] A.C. 396, the Judicial Committee of the Privy Council held that the s.
92(13) provincial head of power over “Property and Civil Rights” in the
provinces includes labour relations. It is only where a work or undertaking
qualifies as federal that provincial jurisdiction is ousted.
[28] In Northern
Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115, Dickson
J. (as he then was) summarized the principles that govern federal‑provincial
jurisdiction over labour relations, at p. 132:
(1) Parliament
has no authority over labour relations as such nor over the terms of a contract
of employment; exclusive provincial competence is the rule.
(2) By way
of exception, however, Parliament may assert exclusive jurisdiction over
these matters if it is shown that such jurisdiction is an integral part of its
primary competence over some other single federal subject.
.
. .
(5) The
question whether an undertaking, service or business is a federal one depends
on the nature of its operation. [Emphasis added.]
Under s. 92 of
the Constitution Act, 1867 , therefore, provincial jurisdiction is the
norm. Federal jurisdiction extends only to those classes of subjects expressly
excepted from the provincial heads of power and those enterprises deemed
integral to such federal works and undertakings. As I will discuss, s. 92(10) (a),
itself a limited carve-out, provides for such a federal exception. The
question in this case is whether the nature of the operations of Fastfrate are
subject to provincial or federal jurisdiction.
C. Division
of Powers (Sections 91 to 95 )
[29] The
division of powers in ss. 91 to 95 of the Constitution Act, 1867 form
the bedrock of our federal system. They seek to preserve local diversity
within the federal nation by conferring “[b]road powers” on provincial
legislatures, while at the same time “reserving to Parliament powers better
exercised in relation to the country as a whole”: Canadian Western Bank v.
Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3 (per Binnie and LeBel JJ.,
at para. 22).
[30] Federalism
exists as a fine balance between local governance and centralized decision
making. As Binnie and LeBel JJ. observed, at para. 22, in Canadian Western
Bank:
The
fundamental objectives of federalism were, and still are, to reconcile unity
with diversity, promote democratic participation by reserving meaningful powers
to the local or regional level and to foster co‑operation among
governments and legislatures for the common good.
D. Guiding
Principles: Interpreting Section 92(10)(a)
[31] It is
within this federal framework that the present case arises. This is especially
true with respect to s. 92(10), which itself embodies the dual principles of
local and centralized decision making that are essential to balancing local
diversity with national unity. Section 92(10) provides that “Works and
Undertakings” are subject to local regulation. A work or undertaking is subject
to federal jurisdiction only where an exception is made out. Local regulation
is the rule; federal regulation, the exception.
[32] Section
92(10) must be read in context. As Professor Hogg states, while the
interpretation of the Constitution Act, 1867 must be flexible enough to
account for that which was unforeseen in 1867, “[c]onstitutional language, like
the language of other texts, must be ‘placed in its proper linguistic,
philosophical and historical contexts’” and “must be anchored in the historical
context of the provision”: P. W. Hogg, Constitutional Law of Canada (5th
ed. 2007), vol. 1, at p. 476, citing R. v. Big M Drug Mart Ltd., [1985]
1 S.C.R. 295, at p. 344, per Dickson J., and R. v. Blais, 2003
SCC 44, [2003] 2 S.C.R. 236.
(i) History and Purpose of Section 92(10)(a)
[33] At the
time of Confederation, the division of powers between the two levels of
government was framed as a balance between “the general interests of the
Confederacy as a whole” and “local interests”. As then Attorney General John A.
Macdonald said on February 6, 1865 in the Debates in the Canadian Parliament on
Confederation, 1865:
[A]ny
honorable member on examining the list of different subjects which are to be
assigned to the General and Local Legislatures respectively, will see that all
the great questions which affect the general interests of the Confederacy as a
whole, are confided to the Federal Parliament, while the local interests and
local laws of each section are preserved intact, and entrusted to the care of
the local bodies. [Emphasis added.]
(Cited in W. P. M. Kennedy, Documents of the Canadian Constitution
1759-1915 (1918), at p. 613.)
Concerning works
and undertakings, specifically, he continued:
It will be
seen that the local legislatures have the control of all local works; and it is
a matter of great importance, and one of the chief advantages of the Federal
Union and of local legislatures, that each province will have the power and
means of developing its own resources and aiding its own progress after its own
fashion and in its own way. Therefore all the local improvements, all
local enterprizes or undertakings of any kind, have been left to the care and
management of the local legislatures of each province. It is provided that
all “lines of steam or other ships, railways, canals and other works,
connecting any two or more of the provinces together or extending beyond the
limits of any province,” shall belong to the General Government, and be under
the control of the General Legislature. In like manner “lines of steamships
between the Federated Provinces and other countries, telegraph communication
and the incorporation of telegraph companies, and all such works as shall,
although lying within any province, be specially declared by the Acts
authorizing them to be for the general advantage,” shall belong to the General
Government. For instance the Welland Canal, though lying wholly within one
section, and the St. Lawrence Canals in two only, may be properly considered
national works, and for the general benefit of the whole Federation. Again,
the census, the ascertaining of our numbers and the extent of our resources, must,
as a matter of general interest, belong to the General Government. So also
with the defences of the country. [Emphasis added; p. 613.]
In this light,
it is clear that in the transportation context, only those works and
undertakings that furthered the “general interest” of the emerging country were
to be regulated by the federal government. Otherwise, the preference was for
local regulation so that “each province will have the power and means of
developing its own resources and aiding its own progress after its own fashion
and in its own way”.
[34] It is
interesting to note that s. 92(10) (a) of the Constitution Act, 1867
was originally conceived of as a primary grant of authority to the federal
government, and not as an exception to provincial grant of authority over
“Local Works”. According to the resolutions passed by the delegates of the
colonies of British North America at the Quebec Conference in October 1864, the
federal government was granted primary legislative authority over:
29. . . .
8. Lines of Steam or other Ships, Railways, Canals and other
works, connecting any two or more of the Provinces together or extending beyond
the limits of any Province.
Whereas the
provincial governments were granted authority over:
43. . . .
13. Local
Works.
(See G. P.
Browne, Documents on the Confederation of British North America (1969),
at pp. 158 and 161.)
[35] However,
by the time the Constitution Act, 1867 was enacted by the British
Parliament, the preference for provincial regulation had become reflected in
the text of s. 92(10) itself, as the grant of authority over “Lines of Steam or
other Ships, Railways, Canals, Telegraphs, and other Works and Undertakings
connecting the Province with any other or others of the Provinces, or extending
beyond the Limits of the Province” became an exception to the provincial grant
of authority over “Local Works and Undertakings”.
[36] Thus,
while the preference in s. 92(10) was for local regulation of works and
undertakings, some works and undertakings were of sufficient national
importance that they required centralized control. The works and undertakings
specifically excepted in s. 92(10) (a) include some of those most
important to the development and continued flourishing of the Canadian nation.
As C. H. McNairn argues, I think persuasively, “[t]he maintenance of transport
and communication facilities adequate to Canadian needs has historically been
regarded as a vital factor in securing the economic and political viability of
Canada as a federal union”: see “Transportation, Communication and the
Constitution: The Scope of Federal Jurisdiction” (1969), 47 Can. Bar Rev.
355, at p. 355. As Professor Whyte emphasizes, the Constitution Act, 1867
evidences a concern
with
activities that produce a nation state that despite its illogicality in terms
of geography, will function as a single state and as an economically viable
whole. This view explains . . . the special place of interconnecting (or
nation‑creating) transportation and communication systems created by s‑ss. (a),
(b) and (c) of s. 92(10) . [Emphasis added.]
(J. D. Whyte,
“Constitutional Aspects of Economic Development Policy”, in Division of
Powers and Public Policy (1985), 29, at p. 45)
[37] The
fact that works and undertakings that physically connected the provinces were
subject to exceptional federal jurisdiction is not surprising. For example, it
would be difficult to imagine the construction of an interprovincial railway
system if the railway companies were subject to provincial legislation
respecting the expropriation of land for the railway right of way or the gauge
of the line of railway within each province. If the legislature of the
province did not grant railway companies the power of expropriation or if they
refused to agree to a uniform gauge, the development of a national railway
system would have been stymied.
[38] At
this late date, it may be difficult for us to conceive of the national
importance of a work or undertaking, such as the Intercolonial Railway.
However, it is important to recall that at the time when the Constitution
Act, 1867 was drafted, the Intercolonial Railway was seen as a project of
vital importance, indeed as a condition of Confederation itself. This is not
surprising, given the importance of rail in connecting the colonies in British
North America. As early as 1851, the colonies of British North America were
tasked with creating such a railway to connect the various colonies (H. E. B.
Coyne, The Railway Law of Canada (1947), at pp. v-vi). In 1868, at the
first session of the first Parliament of the Dominion, The Railway Act, 1868,
S.C. 1868, c. 68, was passed. It is clear that the types of undertakings
conceived of in s. 92(10) (a) were front and centre in the emerging
country’s consciousness.
[39] However,
while works and undertakings such as an interprovincial railway system were of
particular importance to the new nation, this did not displace the fact that
jurisdictional diversity was seen as the general path to economic development
of the nation. In my view, having regard to the historical context of s.
92(10) and its underlying purpose, the preference for diversity of regulatory
authority over works and undertakings should be respected, absent a justifiable
reason that exceptional federal jurisdiction should apply.
(ii) Textual Analysis
[40] While
the historical origins of s. 92(10) (a) illuminate the principled vision
of federalism that underlies it, the words of the provision itself must be
considered on their own terms.
[41] Section
92(10) (a) is structured in two parts: first, it provides a list of
specific federal works and undertakings (“Lines of Steam or other Ships,
Railways, Canals, Telegraphs”), and then it includes a basket clause (“other
Works and Undertakings”). All are defined as “connecting the Province with any
other or others of the Provinces, or extending beyond the Limits of the
Province”. “Works” refer to “physical structure[s]”; “Undertakings” to
“arrangement[s] under which of course physical things are used”: see Commission
du salaire minimum v. Bell Telephone Co. of Canada, [1966] S.C.R. 767 (per
Martland J., at p. 772), citing In re Regulation and Control of Radio
Communication in Canada, [1932] A.C. 304 (P.C.), at p. 315; Attorney-General
for Ontario v. Winner, [1954] A.C. 541 (P.C.), at p. 552.
[42] It is
widely agreed among commentators that the phrase “‘other works or undertakings
connecting the province with any other’, etc., is to be read ejusdem generis
with the specific examples which precede it”: Hogg, at p. 645; see also
McNairn, at p. 359; I. H. Fraser, “Some Comments on Subsection 92(10) of
the Constitution Act, 1867 ” (1984), 29 McGill L.J. 557, at p.
605. If the framers had intended to subject every conceivable work or
undertaking “connecting the province with any other, etc.” to federal
regulation, there would have been no need to specify certain kinds of works and
undertakings: see Consumers’ Association of Canada v. Postmaster General,
[1975] F.C. 11 (C.A.), at pp. 15-16 (explaining the rationale for the ejusdem
generis construction). Instead, s. 92(10)(a) focusses
specifically on transportation and communication works and undertakings through
its examples of “Lines of Steam or other Ships, Railways, Canals,
Telegraphs”.
[43] The
common thread among the enumerated transportation works and undertakings
in s. 92(10)(a) — “Lines of Steam or other Ships, Railways, Canals” — is
the interprovincial transport of goods or persons. The enumerated examples are
all instruments of or means of facilitating actual transport. There is no
reference to, or implication of, third parties connected to the means of actual
transport through contract being subject to federal jurisdiction. The genus of
works and undertakings contemplated in s. 92(10)(a) as “connecting the
Province with any other or others of the Provinces, or extending beyond the
Limits of the Province” consists of those that physically connect the
provinces through transport, not those that notionally connect them
through contract. In my view, the basket clause “other Works and Undertakings”
should be interpreted in this ejusdem generis manner.
[44] I am
therefore of the view that a requirement for federal jurisdiction over
transportation undertakings is that the undertaking itself physically operates
or facilitates carriage across interprovincial boundaries. In my view, this
approach best reflects the text of s. 92(10) and preserves the intent of the Constitution
Act, 1867 , which sees federal jurisdiction over both works and undertakings
and labour relations as the exception, rather than the rule.
E. The Jurisprudential History of Freight
Forwarding: Physical Carriage as a Crucial Indicator
[45] Any
hope of gleaning from the jurisprudence a definitive rule that would resolve
all jurisdictional questions concerning transportation works and undertakings
is surely naive. While certainty may be too lofty an ambition, a degree of
consistency and predictability is still preferable and, in my opinion,
attainable. Interpretive consistency in the s. 92(10) context is important
both to preserve the federal-provincial balance and to allow regulators to know
the extent of their jurisdiction and parties to reasonably predict the
jurisdiction under which they fall. As Binnie and LeBel JJ. noted in their
discussion of federalism in Canadian Western Bank, “a certain degree of
predictability . . . is essential” (para. 23).
[46] For
constitutional purposes, predictability can be achieved by looking at
industries on a broad, rather than excessively detailed basis. If the approach
in each case is to splice and dice discrete differences among companies within
an industry — for example, whether a freight forwarder operates at both the
originating and receiving ends or instead contracts with an independent or
related company at one end, whether its local offices have autonomy or are
closely managed by a head office, whether it provides customers with a single
bill of lading or requires them to contract directly with third-party carriers
— predictability will be hard to come by. A better constitutional approach, in
my view, is to look for commonalities within industries. In United
Transportation Union v. Central Western Railway Corp., [1990] 3
S.C.R. 1112 (“UTU”), Dickson C.J. surveyed the “application of the
jurisdictional test in other industries”, including pipelines and freight
forwarding: pp. 1144-46. He found common strands among these cases that gave
rise to a principled analysis.
[47] In the
present case, there is an existing body of freight-forwarding jurisprudence
that has been cited approvingly by our Court. Where no convincing reason has
been shown as to why we should depart from this jurisprudence, parties should
be able to rely on it and organize their affairs accordingly.
[48] To
this end, I am in agreement with and would uphold the line of cases holding
that freight forwarders that are not themselves engaged in the interprovincial
transport of freight and that simply contract with interprovincial carriers
remain subject to provincial jurisdiction.
[49] In Cottrell,
the issue was whether Cottrell Forwarding Co. Ltd. was subject to the
provincial Public Commercial Vehicles Act, R.S.O. 1970, c. 375. Cottrell
had been charged with operating as an unlicensed freight forwarder contrary to
the Act. Steele J. held that Cottrell was not an interprovincial undertaking
and was therefore subject to the provincial Act.
[50] Cottrell’s
business operations closely parallelled those of Fastfrate. Like Fastfrate,
Cottrell assumed sole responsibility for the shipment of goods from point of
origin in Ontario to point of destination in Western Canada. It was the only
company listed on customers’ bills of lading. As Steele J. observed, at p.
676, Cottrell’s business service allowed customers to benefit from an economy
of scale in order to “reduce the otherwise applicable rate for shipment”.
[51] Steele
J. found that Cottrell’s lack of physical involvement in the transport of goods
or persons distinguished it from other cases where an enterprise had been found
to be an interprovincial undertaking. Steele J. concluded, at pp. 679-80:
The railway
company is the only body carrying on the interprovincial undertaking and it
has the physical works as well. Clearly, if an individual customer of Cottrell
wished to ship goods to the west, it could contract with the railway company to
ship such goods. The mere fact that by contract Cottrell agrees with that
individual customer to enter into the contract with the railway company and
become the shipper itself, does not make Cottrell anything other than a shipper.
. . . To hold otherwise would mean that any travel broker or other person
engaged in general commerce could, by contract, provide interprovincial
undertakings, even though he had no facilities whatsoever, and thereby claim
that he was not subject to provincial jurisdiction. [Emphasis added.]
[52] The
respondent Teamsters submit that the reasoning in Cottrell is
distinguishable from the present case. They assert that “there was no evidence
that the freight forwarder [in Cottrell] regularly engaged in the
deconsolidation and delivery of its own freight at the delivery end of the
shipment” (Factum, at para. 33). This apparent lack of evidence regarding
Cottrell’s presence in the destination province distinguishes it from
Fastfrate, according to the Teamsters.
[53] With
respect, I am not persuaded by this argument. Steele J. specifically observed,
at p. 676, that
counsel for the Crown and [Cottrell] consented to an additional factual
admission to the effect that in Western Canada the operations and offices of
the accused were similar to those in Ontario in that once the goods arrived in
the west they were transported either by a subsidiary company of [Cottrell] or
by other independent truckers to individual locations as shown on the bills of
lading.
It is clear from
this statement that Steele J. was aware that Cottrell played a role, either
directly or through contract, in the final delivery of goods in Western
Canada.
[54] In any
event, I do not agree that a freight forwarder’s level of involvement in
delivering goods at the receiving end is determinative of the jurisdictional
analysis. Steele J.’s analysis centred on the fact that Cottrell did not
perform any interprovincial carriage itself. The same is true in the present
case.
[55] The
facts in Cannet are similarly straightforward. Cottrell Forwarding Co.
Ltd. was a freight-forwarding enterprise that received freight from customers
in the Toronto area and contracted with the Canadian National Railway Company
for shipment to Western Canada. Employees of Cannet Freight Cartage Ltd. were
responsible for picking up the goods from customers and dropping them off at
premises leased from Canadian National. The Cannet employees would remove the
goods from the delivery trucks and stow them in CN rail cars pursuant to the
arrangements made by Cottrell with its customers.
[56] The
issue was whether the Cannet employees could be certified by the CLRB. The
Federal Court of Appeal held that they could not. In its view, the labour
relations of Cannet were subject to provincial jurisdiction. Jackett C.J.
held, at pp. 177-78:
Even if
[Cannet’s] activities and those of the Cottrell Company are viewed as integral
parts of a whole, . . . the only interprovincial undertaking involved here is
the Canadian National interprovincial railway. Clearly, a shipper on that
railway from one province to another does not, by virtue of being such a
shipper, become the operator of an interprovincial undertaking. If that is
so, as it seems to me, the mere fact that a person makes a business of
collecting freight in a province for the purpose of shipping it in volume
outside the province by public carrier, does not make such a person the
operator of an interprovincial undertaking. [Emphasis added.]
[57] In UTU,
Dickson C.J. cited approvingly the holding in Cannet. He said, at pp.
1146-47:
I also find it useful to refer to a series of cases commonly known as
the “freight forwarder” cases. . . . The leading case is In re Cannet
Freight Cartage Ltd., [1976] 1 F.C. 174, where the Federal Court of Appeal
held that freight forwarding companies were subject to provincial jurisdiction.
I find the comments of Jackett C.J., at pp. 177‑78, applicable in the
present appeal:
In my view, the only interprovincial
undertaking involved here is the Canadian National interprovincial railway. Clearly,
a shipper on that railway from one province to another does not, by virtue of
being such a shipper, become the operator of an interprovincial undertaking.
. . . To hold
otherwise would be to undermine completely the division of powers for, absent a
requirement of functional integration, virtually any activity could be said to
“touch” a federally regulated interprovincial undertaking. [Emphasis added.]
While Dickson
C.J. referred to Cannet when he was considering whether the impugned
undertaking in UTU was subject to derivative federal jurisdiction, he
did so as part of a comparative review of s. 92(10)(a) jurisprudence
across industries, including freight forwarding. There is nothing in his
analysis indicating that it was meant to apply only to cases of derivative federal
jurisdiction.
[58] The
respondent Teamsters argue that rather than following the Cannet and Cottrell
line of cases, this Court should instead rely on the CLRB decision in DHL.
In DHL, the CLRB found that the DHL Ltd. freight-forwarding enterprise
was subject to federal jurisdiction even though DHL Ltd. was not itself
involved in the interprovincial transport of goods. The CLRB reasoned:
Although evidence of regular and continuous trips across provincial
lines, by the undertaking itself, would suffice to bring the operation into the
federal sphere, evidence that the undertaking has as its dominant purpose an
interprovincial or international operational connection extending its activities
— services to its clients — “beyond the limits of the province”, on a regular
and continuous basis, is likewise sufficient to determine federal jurisdiction.
[Emphasis added; p. 116.]
[59] With
respect, I am not persuaded by the reasoning in DHL. In finding DHL
Ltd. to be subject to federal regulation, the CLRB applied the “regular and
continuous” test in a novel, and in my view, unhelpful way. The test had
formerly been used by courts to decide whether an undertaking was involved in
“regular and continuous” physical transportation across boundaries: see Re
Ottawa‑Carleton Regional Transit Commission and Amalgamated Transit
Union, Local 279 (1983), 4 D.L.R. (4th) 452 (Ont. C.A.). The CLRB instead
considered whether a “dominant [interprovincial] purpose”, defined in terms of
contractual services offered to clients , was “regular and continuous”. The
focus shifted from the nature of the operations of the undertaking to the
nature of the contractual service it provides.
[60] It is
true that in the communications context, the constitutional inquiry has at
times focussed on “the service that is provided and not simply . . . the means
through which it is carried on”: Public Service Board v. Dionne, [1978]
2 S.C.R. 191, at p. 197. The difference between the communications and
transportation contexts, however, is that communications undertakings can operate
and provide international and interprovincial communication services
from a fixed point. If one were to focus only or primarily on the means by
which a communication undertaking provides interprovincial services to its
customers, the result could be that two companies operating and providing
identical services would be subject to different jurisdictions depending on
their modes of transmission (i.e. whether they send and receive signals from
one fixed location or whether they have an interprovincial presence).
[61] In the
transportation context, it is not possible for an undertaking to operate an
interprovincial transportation service where it does not itself perform the
interprovincial carriage. A business can, of course, act as an intermediary
between interprovincial carriers and consumers who want to access those
carriers at a reduced price. This does not mean that such a business becomes
the operator and provider of the interprovincial carriage, however. The fact
that customers may be unaware that the intermediary company is not in fact
performing the interprovincial carriage is, in my view, irrelevant to the
constitutional inquiry. Section 92(10)(a) is concerned with the nature
of undertakings, not how they are subjectively understood by consumers. As
this Court emphasized in Northern Telecom, at p. 132, “[t]he question
whether an undertaking, service or business is a federal one depends on the
nature of its operation.”
[62] The
“dominant purpose” test in DHL — measured in terms of the contractual
service offered rather than the actual operations of the undertaking — has the
potential to sweep under federal jurisdiction many enterprises that heretofore
have been understood as being subject to provincial jurisdiction based on their
actual operations. As the intervener the Attorney General of Ontario observed,
travel agencies whose “regular and continuous” dominant purpose is to
facilitate interprovincial and international travel could become subject to
federal jurisdiction, as could online companies that regularly arrange for the
door-to-door delivery of their products (Factum, at paras. 22-26). This kind
of indeterminate fluidity in the division of powers surely cuts against the
balance that underlies our federal system.
[63] The
respondent Teamsters suggest that Alberta Government Telephones v. Canada
(Canadian Radio-television and Telecommunications Commission), [1989] 2
S.C.R. 225 (“AGT”), nevertheless supports the view that a transportation
undertaking can be subject to federal jurisdiction even where its physical
equipment and operations remain within the province. In UTU, this
Court, interpreting its decision in AGT, found, at p. 1135, that it was
“by virtue of [AGT’s] role in Telecom Canada and its bilateral contracts with
other telephone companies [that AGT] was able to provide its clients with an
interprovincial and, indeed, international telecommunications service”. The
Teamsters analogize AGT’s web of contractual relations to Fastfrate’s. They
argue that “[t]hrough the coordinated relationship between the operations at
Fastfrate facilities and through the contracts that Fastfrate has with other
parties, Fastfrate is able to connect the provinces and provides its clients
with an interprovincial transportation service” (Factum, at p. 15).
[64] With
respect, I am not persuaded that the analogy is an apt one. It should be
recalled that in AGT, there was no question that AGT was itself
operating and providing interprovincial telephony services. As Dickson C.J.
noted at p. 260, “[t]he involvement of AGT in the transmission and reception of
electronic signals at the borders of Alberta indicate that AGT is operating an
interprovincial undertaking.” The question was whether this physical reception
and delivery of signals was sufficient to ground federal jurisdiction. The
Court held that the physical reception and delivery of interprovincial signals,
in combination with AGT’s commercial arrangements with other
interprovincial providers, was sufficient to attract federal jurisdiction.
[65] However,
the starting point in the transportation context differs from that in the
communications context. As Dickson C.J. observed in UTU, at p. 1144,
“it must not be forgotten that the nature of telecommunication systems is quite
different from the railway business”. As I noted above, whereas communication
works and undertakings can facilitate interprovincial communication from a
fixed location, transportation, by definition, involves mobility of goods,
persons, and transportation equipment (equipment for the carriage of persons or
freight) across territory. Thus, as Dickson C.J. further noted in UTU,
at p. 1146, while “spatial boundaries limit the range of [transportation]
business’ operations, [this] can less easily be said with regard to
broadcasting systems, where territorial boundaries are not extremely critical
to the nature of the enterprise”.
[66] This
distinction likely accounts for the Court’s willingness to find that
contractual relations, in addition to the physical reception and delivery of
interprovincial signals, qualified AGT as an interprovincial undertaking. As
Professor Hogg observes:
The result in AGT probably owes a good deal to
the unique character of telecommunication, which permits instantaneous two-way
communication between people in different provinces and different countries.
In other contexts, cooperative arrangements between an independently-managed
local undertaking and extraprovincial undertakings would not suffice to
transform the local undertaking into an interprovincial undertaking. [p. 646]
The distinction
that Professor Hogg cites is the very distinction between transportation and
communication undertakings at issue in this case.
[67] In my
view, the objective of predictability in the freight-forwarding context strongly
suggests that the industry should be considered holistically and the prior
jurisprudence of the courts concerning the industry be respected.
V. Application
to This Case
[68] The
history, purpose, and text of s. 92(10)(a) suggest that federal jurisdiction
is exceptional and should be treated as such. The historical roots of the
provision reflect a concern that works and undertakings of national importance
be subject to federal authority in order to prevent fragmentary legislative
authority that might stymie such undertakings. The text of the provision
indicates that a limited genus of works and undertakings should qualify
as federal. The provision contemplates interprovincial transportation works
and undertakings themselves, not merely those connected to such works or
undertakings by contract.
[69] In
light of this context, I am of the view that the employees of Fastfrate Calgary
are properly subject to provincial jurisdiction. There is no sound
jurisprudential basis for reading “other Works and Undertakings” in the
expansive manner that the respondent Teamsters suggest.
[70] In the
present case, Fastfrate’s operations are entirely intraprovincial.
Neither Fastfrate employees, nor its equipment, are involved in any actual
interprovincial transport. We are not faced here with the question of whether
federal jurisdiction should apply to an undertaking that conducts a de
minimis amount of interprovincial transport: see, e.g., Windsor Airline
Limousine Services Ltd. and U.S.W.A. (1999), 56 C.L.R.B.R. (2d) 70; Re
Ottawa‑Carleton Regional Transit Commission. On the contrary, in
the case of Fastfrate, it performs no interprovincial transport. As the
ALRB observed, “any component of [Fastfrate’s] service that involves transport
of the freight across provincial boundaries is contracted to a third-party
interprovincial road or rail carrier” (para. 19).
[71] The
respondent Teamsters submit that Fastfrate’s web of contractual relations with
third-party carriers and its customers means that it functions as an
undertaking connecting the provinces pursuant to s. 92(10)(a). The fact
that Fastfrate provides “an interprovincial transportation network for its
customers” should, according to the Teamsters, qualify it as a federal
undertaking (Factum, at para. 53).
[72] The
difficulty with this argument is that the text of s. 92(10)(a) and the
jurisprudence interpreting it do not contemplate that a mere contractual
relationship between a shipper and an interprovincial carrier would qualify
Fastfrate as an undertaking connecting the provinces or extending beyond the
limits of the province. Rather, it is the carriers that physically transport
the freight interprovincially that constitute federal transportation works and
undertakings. There is no indication that contracting alone can make
intraprovincial undertakings subject to federal jurisdiction. I am not
persuaded that there is a justifiable basis for expanding the scope of s.
92(10)(a) in the manner proposed by the Teamsters.
[73] Even
where a recognized federal undertaking exists, not every part of its enterprise
will necessarily be subject to federal jurisdiction. Distinct local works or
undertakings may remain subject to provincial jurisdiction. In the Empress
Hotel case (Canadian Pacific Railway Co. v. Attorney-General for British
Columbia, [1950] A.C. 122 (P.C.)), the issue was whether the employees of a
hotel owned and operated by the CPR were subject to federal regulation. The
appellants in that case argued that the hotel’s employees were subject to
federal regulation because the hotels were part of an integrated national
transportation system. They maintained that
th[e] unified
system [of rail and hotel services] is a national [transportation] undertaking
which cannot reasonably be viewed as a conglomeration of local works and
undertakings. . . . The Empress Hotel [as the material in the record shows] is
an integral part of this unified system. [p. 127]
[74] The
Privy Council rejected this argument. Lord Reid said, at p. 140:
[T]heir Lordships can find neither principle nor authority to support the
competence of the Parliament of Canada to legislate on a matter which clearly
falls within the enumerated heads in s. 92 and cannot be brought within any
of the enumerated heads in s. 91 merely because the activities of one of the
parties concerned in the matter have created a unified system which is
widespread and important in the Dominion. [Emphasis added.]
Lord Reid
distinguished between CPR’s operation of a national transportation undertaking
and the Empress Hotel’s local role within that system. In other words, the
common ownership of complementary interprovincial and intraprovincial works or
undertakings will not mean that the otherwise local enterprise is subject to
federal regulation, unless it forms an integral or essential part of the
interprovincial work or undertaking. This is true even where, as Lord Reid
says, the commonly owned undertakings create a “unified system”. In the case
of Fastfrate, which conducts only local operations, I am not persuaded
that its contractual relations with third-party carriers should attract federal
jurisdiction any more than the Empress Hotel’s operational and corporate
relationship with the CPR did.
[75] The
operational reality of Fastfrate is that it depends on third-party
interprovincial carriers to conduct its business. It is in precisely the
inverse situation of those undertakings that have been found to be subject to
derivative federal jurisdiction because they are integral to a recognized
interprovincial work or undertaking. As Professor Hogg observes, “[t]he
relationship of dependency that will bring a local undertaking into federal
jurisdiction is the dependency of the interprovincial undertaking on the local
undertaking, not the other way around” (p. 654). This accords with the Federal
Court of Appeal’s observation in Cannet that “the only interprovincial
undertaking involved . . . is that of the CNR and that a shipper on that
railway from one province to another does not, by such activity, become the
operator of an interprovincial undertaking”: p. 182 (per Heald J.,
agreeing with Jackett C.J.’s comments at p. 178). I share the view that
Fastfrate remains a shipper. Its presence at both the originating and terminating
ends may mean that it can provide a comprehensive service to its
customers, but this does not change the fact that it is still only a shipper
using an interprovincial railway or trucking company.
[76] There
has also been discussion in the lower courts of the fact that Fastfrate is an
integrated national company with branches across Canada. The case law has
consistently held that corporate structure is not determinative of the
jurisdictional analysis under s. 92(10)(a). As this Court affirmed in Northern
Telecom, at p. 133, “the judgment is a functional, practical one about the
factual character of the ongoing undertaking and does not turn on technical,
legal niceties of the corporate structure or the employment relationship”. In
my view, the functional analysis must centre on what operations the undertaking
actually performs.
[77] The
constitutional inquiry should not be diverted by minor differences in the
operations of otherwise similar undertakings. In the freight-forwarding industry,
if, as the Teamsters argue, the fact that Fastfrate operates at both the
originating and terminating ends of a shipment distinguishes it from a freight
forwarder that contracts with a related company at the receiving end, a
corporate restructuring whereby separate but related companies operate at
various locations would determine the constitutional question. Generally,
constitutional jurisdiction should not be determined at this level of detail,
nor should it be subject to “technical, legal niceties of the corporate
structure or the employment relationship”: see Northern Telecom, at p.
133.
[78] The
physical connection cases further demonstrate that merely facilitating interprovincial
transport will not, without more, attract federal jurisdiction. In City of
Montreal v. Montreal Street Railway, [1912] A.C. 333, the Privy Council
held that a mere physical connection between a local railway and an
interprovincial railway was an insufficient basis to subject the local railway
to federal regulation. The fact that the intraprovincial and the
interprovincial railways had an arrangement “by which the cars of each railway
run over the lines of the other, and passengers are conveyed from points on one
system to points on the other over the permanent way of both” did not transform
the intraprovincial railway into an interprovincial one for the purposes of s.
92(10)(a) (pp. 338 and 345-46).
[79] Likewise,
in UTU, Dickson C.J. stated, at p. 1147, “that something more
than physical connection and a mutually beneficial commercial relationship with
a federal work or undertaking is required for a company to fall under federal
jurisdiction” (emphasis added). He concluded this despite the fact that the
rail cars originating on the Central Western line were taken by the Canadian
National Railway across provincial boundaries. In other words, even where an
intraprovincial work or undertaking originates freight traffic that is carried
interprovincially by an interprovincial railway company, that does not
transform the intraprovincial railway into an interprovincial one.
[80] In my
view, the “something more” that would be required is the actual transportation
of goods or persons across provincial boundaries: see, e.g., Winner (a
bus company was an interprovincial undertaking because it transported
passengers across provincial borders); Re Ottawa‑Carleton Regional
Transit Commission (the transport of passengers across the Quebec boundary
qualified OC Transpo as a federal undertaking). It is the business performing
the interprovincial operations (i.e. the interprovincial transportation) that
is subject to federal jurisdiction. A shipper, whether it is a plant that
ships its own rail cars or a freight forwarder that ships its own boxes or
envelopes, still remains a shipper. The business that performs the
interprovincial transportation — the carrier that crosses provincial boundaries
— is the undertaking that attracts federal jurisdiction under s. 92(10)(a).
The operations of Fastfrate are not in this category.
VI. Conclusion
[81] I
would allow the appeal with costs in this Court and in the Court of Appeal.
The decision of the Court of Queen’s Bench is restored. The labour relations
of the Calgary operation of Fastfrate Inc. are subject to provincial
jurisdiction.
The reasons of McLachlin C.J. and Binnie and Fish JJ. were delivered by
[82] Binnie J. (dissenting) — For the past
30 years, this Court’s approach to determining whether a particular
transportation or communication undertaking is federally regulated (including
its labour relations) has depended on the precise nature and scope of the
service it provides. In this respect “the test should be flexible and
attentive to the facts of each particular case” (United Transportation Union
v. Central Western Railway Corp., [1990] 3 S.C.R. 1112, at p.
1140). In this case, the Alberta Labour Relations Board concluded that the
appellant provides a transportation service to its customers that extends
“beyond the Limits of the Province” of Alberta in the words of s. 92(10) (a)
of the Constitution Act, 1867 , which provides:
92. In each Province the Legislature may exclusively make Laws
in relation to Matters coming within the Classes of Subjects next hereinafter
enumerated; that is to say, —
.
. .
10. Local
Works and Undertakings other than such as are of the following Classes:
—
a. Lines of Steam or other Ships,
Railways, Canals, Telegraphs, and other Works and Undertakings connecting
the Province with any other or others of the Provinces, or extending beyond the
Limits of the Province: . . . .
[83] Fastfrate,
the Board found, “operates an interprovincial undertaking because it regularly
picks up, consolidates, deconsolidates and delivers freight on its own account
in many provinces, at either end of the shipments that it contracts out to an
interprovincial carrier” ((2005), 114 C.L.R.B.R. (2d) 1, at para. 51). It is
this intermediate “contracting out” feature that forms the basis of the
contrary opinion taken by my colleague Justice Rothstein. However, methods of
transportation and communication have evolved since 1867, as have the methods
by which businesses organize themselves to deliver such services. In an era where
contracting out elements of a service business is commonplace, the modalities
of how a truly interprovincial transportation operation “undertakes” to move
its customers’ freight from one part of Canada and deliver it to another should
not contrive to defeat federal jurisdiction. Checkerboard provincial
regulation is antithetical to the coherent operation of a single functionally
integrated indivisible national transportation service.
[84] I
agree with the Alberta Labour Relations Board and the majority view of the
Alberta Court of Appeal that by “contracting out” part of its transportation
“operations”, Consolidated Fastfrate does not escape federal jurisdiction, as
it seeks to do on this appeal. Consolidated Fastfrate is an interprovincial
transportation undertaking. I would dismiss the appeal.
I. Overview
[85] In
1979 in Northern Telecom Ltd. v. Communications Workers of Canada,
[1980] 1 S.C.R. 115, at p. 132, Dickson J. (as he then was) laid out six basic
principles to be considered in assessing whether an undertaking falls under
federal or provincial jurisdiction, including the proposition that:
The question whether an undertaking, service or business is a federal one
depends on the nature of its operation.
Ten years later,
in Alberta Government Telephones v. Canada (Canadian Radio-television and
Telecommunications Commission), [1989] 2 S.C.R. 225 (“AGT”), the
Court interpreted “nature of the operation” to include in federal regulation a
provincial Crown telephone system that relied on contractual arrangements with
out-of-province utilities to provide interprovincial and international
service. Fastfrate, unlike Alberta Government Telephones (“AGT”), provides a
customer-to-customer interprovincial service. It handles the shipment both in
the province of origin and in the province of destination. Technology
in the communications industry obviously differs from that in the
transportation of goods, but no distinction has been drawn in our cases to date
between the legal test applicable to communication undertakings and that
applied to transportation undertakings. Although Northern Telecom was
concerned with communications workers, the test used by Dickson J. in that case
was confirmed in Central Western Railway, at pp. 1138-40, and in AGT,
at pp. 257-58, where as Chief Justice he wrote that “[t]here is ample authority
for the proposition that the crucial issue in any particular case is the
nature or character of the undertaking that is in fact being carried on” (emphasis
added). At pp. 259-60 of AGT, Dickson C.J. continued:
The fact that a company does not own or operate physical facilities
outside a particular province does not mean that the company’s undertaking is
necessarily local in nature (see: R. v. Toronto Magistrates, Ex Parte Tank
Truck Transport Ltd., [1960] O.R. 497, and R. v. Cooksville Magistrate’s
Court, Ex parte Liquid Cargo Lines Ltd., [1965] 1 O.R. 84 (H.C.), at p. 89,
per Haines, J.).
Both of the
authorities cited in AGT by Dickson C.J. (Tank Truck Transport and
Liquid Cargo Lines) were transportation cases. AGT was a
communications case. The technology may be different, but the legal test was
(and is) the same.
[86] In my
opinion, the test formulated in the s. 92(10) (a) cases is a functional
test, and it requires the Court to focus on what transportation service
Fastfrate undertakes to provide to its customers — local or interprovincial.
The outcome does not depend on whether, in carrying out its interprovincial
freight contracts, Fastfrate does or does not contract with another corporate
entity to move the goods across an interprovincial or international boundary.
The question is the nature of the service Fastfrate undertakes to provide, not
the modalities of performance as they may exist from time to time.
[87] My
colleague Rothstein J., on the other hand, prefers a narrower approach
“anchored in the historical context”. He concludes that federal jurisdiction
under s. 91(29) and s. 92(10) (a) should be read “narrowly” (para. 27),
noting the reference in that section to physical works such as railways, canals
and telegraph poles that were perceived in 1867 to be essential to
nation-building (para. 36). My colleague infers from the text of s. 92(10) (a)
that transportation (which he distinguishes from communications) works and
undertakings are restricted to undertakings that themselves “physically connect
the provinces” (paras. 43-61). Instead of being “attentive to the facts of
each particular case”, my colleague prefers to look “at industries on a broad,
rather than excessively detailed basis” because to “splice and dice discrete
differences among companies within an industry” undermines “predictability”
(para. 46). Rothstein J. rejects the applicability of cases such as Public
Service Board v. Dionne, [1978] 2 S.C.R. 191, and AGT on the basis
that they deal with communications rather than transportation (paras. 60 and
66). Transportation is different because while communications operators can
provide their services interprovincially and internationally from a fixed point
(e.g. by satellite systems), transporters operate under physical and spatial
limitations that require them physically to move goods across the provincial or
international boundaries. Accordingly, my colleague concludes, what is
required in the transportation field is that in order to be subject to federal
jurisdiction, the undertaking must itself “physically transport the freight
interprovincially” (para. 72).
[88] In my
view, the relevant distinction in the s. 92(10) (a) jurisprudence is not
between undertakings engaged in transportation and those engaged in
communications, but between local undertakings within the province and
undertakings whose service (whether transportation or communication) extends
beyond the province. In this respect, there is no difference between the test
for transportation cases and the test for communications cases. This was
confirmed (again) by Dickson C.J. in the last of his series of “interprovincial
undertaking” cases where he made a direct comparison between the scope of the
intraprovincial transportation “service” offered in Central Western Railway
with the interprovincial communications “service” offered by AGT (p. 1135). On
this point, I agree with Watson J.A., speaking for the majority in the court
below:
In our view, the jurisprudence does not give trumping status to, let
alone mandate, the factor of physical transition as a pre‑condition to
finding an interprovincial work or undertaking. . . . More important than a physical
connection is whether the functional nature of the operation is to
connect the provinces. [Emphasis in original.]
(2007 ABCA 198, 79 Alta. L.R. (4th) 201, at para. 53)
[89] Canadian
courts have never accepted the sort of “originalism” implicit in my colleague’s
historical description of the thinking in 1867. The persistent feebleness of
the federal power over trade and commerce and the eclipse of the federal
authority related to peace, order and good government bear witness to the ascendancy
of the “living tree” approach. As our Court recently stated in relation to the
division of legislative authority in Canadian Western Bank v. Alberta,
2007 SCC 22, [2007] 2 S.C.R. 3, “the interpretation of these powers and of how
they interrelate must evolve and must be tailored to the changing political and
cultural realities of Canadian society” (para. 23). This is not to say that
the passage of time alters the division of powers. It is to say that the
arrangement of legislative and executive powers entrenched in the Constitution
Act, 1867 must now be applied in light of the business realities of 2009
and not frozen in 1867.
[90] The
current Canadian economy would be unrecognizable to the statesmen of 1867 and,
to borrow an analogy from Thomas Jefferson, one would not expect a grown man to
wear a coat that fitted him as a child. The coat is of the same design, but
the sleeves are longer and the chest is broader and the warp and woof of the
fabric is more elaborate and complex. Adopting a purposive approach to
constitutional interpretation, as we must, what is important is not how
transportation was viewed in 1867 but rather to match in our own era the level
of regulation (federal, provincial or territorial) appropriate to the nature and
scope of the undertaking. Now, as in 1867, when a transportation undertaking
connects or extends “beyond the Limits of the Province” its regulation is
assigned by the Constitution Act, 1867 to the federal level of
authority.
II. Facts
[91] Fastfrate
has its head office in metro Toronto, major terminal facilities in Montreal,
Toronto, Winnipeg, Regina, Saskatoon, Edmonton, Calgary and Vancouver, and
smaller facilities elsewhere (Board decision, at para. 4). The current status
of Fastfrate’s labour relations presents a patchwork quilt. The Alberta,
Manitoba and British Columbia provincial labour boards have taken jurisdiction
to certify Fastfrate bargaining units. On the other hand, the federal board
has certified units in Saskatchewan, Edmonton, Toronto and Montreal.
Fastfrate’s interprovincial undertaking would be frustrated, for example, if
its employees in Calgary, governed by Alberta rules, were to dispatch freight
to Montreal where Fastfrate employees are governed by different (provincial)
rules and are on strike.
[92] At its
Calgary terminal, the Alberta Board found, Fastfrate owns and maintains
terminal premises with cross-docks and warehousing space, and trucks, tractors
and trailers for pickups and deliveries. It employs drivers, warehouse
personnel, office and clerical employees, sales personnel, and managers to
perform this business (paras. 9-10). Similar terminal facilities exist at the
point of deconsolidation and delivery in other provinces. In this respect,
Fastfrate’s personnel and “physical” equipment would seem to meet Rothstein
J.’s test that to be federally regulated, it is necessary that “the undertaking
itself physically operates or facilitates carriage across
interprovincial boundaries” (para. 44 (emphasis added)).
[93] Fastfrate
also maintains a network of contractual relationships with freight
transporters. In some local markets, these contractors supplement Fastfrate’s
own forces for local pickup and delivery. Fastfrate generally does not
transport its freight interprovincially using its own property or employees;
for that intermediate segment of carriage Fastfrate uses contractors, either
interprovincial line-haul truckers by road, or Canadian Pacific Railway by rail
(Board decision, at para. 9).
[94] The
Alberta Board found that whether a Fastfrate shipment travels interprovincially
by CP Rail or by a third-party road carrier, the presence of the
interprovincial carrier is invisible to both the consignor and the consignee.
The only undertaking they deal with is Fastfrate. The same is true of local
pickup and delivery by third-party carriers. The consignor of a
Toronto-to-Calgary shipment, for example, will receive one bill of lading from
Fastfrate for the entire shipment from pickup to ultimate delivery. Customers
will not know from the documentation which (if any) third parties handled any
part of their shipment. Fastfrate assumes liability for any claims for damage
or non-delivery along the entire routing and carries comprehensive insurance to
manage this liability. If damage or loss occurs during carriage by a
subcontractor, e.g. CP Rail, Fastfrate would be liable to the customer and
would in turn pursue its own claim against CP Rail (para. 27).
[95] In
terms of corporate organization, the Calgary branch is not a stand-alone local
undertaking. All branches are served by a common information technology system
centred in Toronto (Board decision, at para. 32). Fastfrate’s regional
vice-president for Western Canada (Thunder Bay to Vancouver Island) acknowledged
that he has “100% power to modify branch operations anywhere in western Canada”
(Board decision, at para. 31). Fastfrate’s collective bargaining is not
handled at the branch level. Even the Regional Manager would not sign a
collective agreement without the approval of the Regional Vice-President. In
other words, the interprovincial undertaking is managed interprovincially.
What is important, of course, is not that Fastfrate is managed
interprovincially but that its undertaking is interprovincial transportation.
III. Analysis
[96] Generally
speaking, labour relations are provincially regulated because most works and
undertakings are local and s. 92(10) gives the province jurisdiction
over “Local Works and Undertakings”. The question is, as the Alberta
Board formulated it, whether Fastfrate is one interprovincial transportation
undertaking or many local ones (paras. 55-58). The manner in which the Constitution
Act, 1867 is structured does not mean that federal jurisdiction over
interprovincial undertakings should receive a cramped interpretation. On this
rather fundamental point, I respectfully disagree with my colleague Rothstein
J. when he writes:
Section 92(10) provides that “Works and Undertakings” are subject to
local regulation. A work or undertaking is subject to federal jurisdiction
only where an exception is made out. Local regulation is the rule; federal
regulation, the exception. [para. 31]
The Constitution
nowhere gives the provinces general jurisdiction in relation to “Works and
Undertakings”. Section 92(10) , as stated, gives the provinces jurisdiction
only over local works and undertakings, and even this grant is qualified
to the extent such local works and undertakings connect the province
“with any other or others of the Provinces, or extending beyond the Limits of
the Province”, in which case they are regulated federally pursuant to s.
91(29) .
[97] This
point was adverted to by Dickson J. in Northern Telecom, at pp. 128-29:
Colin McNairn in his “Transportation, Communication
and the Constitution: The Scope of Federal Jurisdiction” (1969), 47 Can. Bar
Rev. 355, at 393, took the view that the exceptions as exceptions ought to
be narrowly construed against federal power. W.R. Lederman in his illuminating
article, “Telecommunications and the Federal Constitution of Canada” in H.E.
English, ed., Telecommunications for Canada (1973), 339 at 360, puts
much greater stress upon the effect of s. 91(29) in converting these exceptions
to an exclusive head of federal power and thus supports a broader reading of
federal authority.
Although Dickson
J. did not provide an explicit answer to his question, his description of
Professor Lederman’s article as “illuminating” indicates a preference for
Professor Lederman’s “broader reading of federal authority”, as indeed is
apparent in his various judgments on the topic in the 11 years from Northern
Telecom in 1979 to AGT in 1989 and Central Western Railway in
1990. In AGT, for example, he framed the issue neutrally and not as “an
exception” as follows:
It was conceded that AGT is an “undertaking” within
the meaning of s. 92(10) (a) (see Reed J. supra, at p. 532), and
the issue is whether it is a “local” undertaking and therefore within
provincial jurisdiction, or an undertaking “connecting the Province with any
other or others of the Provinces, or extending beyond the Limits of the
Province”, and therefore within federal jurisdiction. [p. 258]
The question, in
short, is what precisely is the nature of the transportation service provided
by Fastfrate — local or interprovincial? On this point, the Alberta Board is
emphatic. The Fastfrate undertaking is dedicated to the interprovincial pickup
and delivery of freight.
A. Historical
Background
[98] Justice
Rothstein fairly lays out some of the constitutional thinking in 1867. The
contemplated balance between federal and provincial authority was reflected in
the general language of the Constitution Act, 1867 , which has been
interpreted and re-interpreted as Canadian society has evolved. As mentioned,
the drafters of s. 92(10) (a) understood interprovincial communication in
terms of wires strung along telegraph poles. In 1867, physical
connection was essential. It is therefore not surprising that s. 92(10) (a)
would list physical works. Yet, as Rothstein J. acknowledges, “undertakings” is
a much broader concept than works, and includes “arrangement[s] under which of
course physical things are used”: Commission du salaire minimum v. Bell
Telephone Co. of Canada, [1966] S.C.R. 767 (per Martland J., at p.
772), citing In re Regulation and Control of Radio Communication in Canada,
[1932] A.C. 304 (P.C.), at p. 315, and Attorney-General for Ontario v.
Winner, [1954] A.C. 541 (P.C.), at p. 552. Nowhere in these cases is it suggested
that the “arrangement” precludes contracting out elements of the service
provided.
B. The AGT
Decision
[99] AGT
rejected the argument that to be characterized as an interprovincial
undertaking, an entity must itself physically transport (e.g. by rail) or
communicate (e.g. by a telephone cable or telegraph line) across a provincial
boundary. The evidence in that case was that the facilities of the Alberta
Government Telephones System were physically located entirely in Alberta although
it “connected” with the cable and microwave equipment of other companies at the
Alberta border. Our Court held that “mere interconnection of physical
facilities in one province with those in a neighbouring province, territory or
state may not be sufficient to attract the characterization of the undertaking
involved as interprovincial in nature” (p. 262). However, by reason of AGT’s
contractual arrangements with out-of-province communications providers both
directly and through Telecom Canada, AGT was able to provide its Alberta
customers with an interprovincial and international communications service.
AGT resisted federal regulation, but Dickson C.J. held:
In my view, Reed J. found that AGT itself is operating an interprovincial
undertaking and that it does so primarily through bilateral contracts, its role
in Telecom Canada, and the physical interconnection of its system at the
borders of Alberta. I agree with that conclusion. [Emphasis deleted; p. 263.]
See also Téléphone
Guèvremont Inc. v. Québec (Régie des télécommunications) (1992), 99 D.L.R.
(4th) 241 (Que. C.A.), aff’d [1994] 1 S.C.R. 878.
[100]
It was said in AGT that “one could not separate the local from
the non-local without emasculating AGT’s enterprise as it presently exists” (p.
255). The same is true of Fastfrate.
[101]
If AGT is subject to federal regulation by reason of its provision of
interprovincial and international services, which can only be performed
by relying on contractual arrangements with other facilities providers,
Fastfrate should receive similar treatment, especially as its facilities
(unlike those of AGT) are engaged at both pickup and delivery.
C. The
Central Western Railway Decision
[102]
Justice Rothstein’s response is that communication technology is
different from transportation technology, and so it is, but that does not lead
to a different legal test under s. 92(10) (a). On the contrary, when in Central
Western Railway (1990), Dickson C.J. was confronted with his decision in AGT
(1989), he did not distinguish AGT as a communications case whereas Central
Western Railway was a transportation case. Acknowledging that different
technologies are involved, he distinguished the cases on the basis of the
nature of the service — intraprovincial or interprovincial — being provided to
“its clients”. He wrote:
The linchpin in the A.G.T. v. C.R.T.C. decision was this Court’s
finding that A.G.T., by virtue of its role in Telecom Canada and its bilateral
contracts with other telephone companies, was able to provide its clients
with an interprovincial and, indeed, international telecommunications service.
In contrast, the appellant Central Western does not (through bilateral
arrangements or otherwise) provide an interprovincial service to its
clients: it simply moves grain within central Alberta. [Emphasis added; p.
1135.]
[103]
In support of his contrary view, Rothstein J. states, at para. 65, that
“the starting point in the transportation context differs from that in the
communications context”, citing two passages from Dickson C.J. in Central
Western Railway in support of his proposition. That case concerned a rail
line which had formerly been owned by CN Rail but had been leased and then sold
to an independent company. The rail line operated solely within the province
of Alberta. The Court held that “[t]he crucial determination is not simply
whether there has been a change of corporate control, but whether the work in
question can properly be described, with regard to its nature of operations, as
being interprovincial” (p. 1131).
[104]
For convenience, I reproduce the two passages from Central Western
Railway with the words excerpted by Rothstein J. underlined. The first
passage appears in the judgment of Dickson C.J., at p. 1144:
While the general approach to jurisdictional
questions adopted in the Northern Telecom cases is critical to the
disposition of this appeal, it must not be forgotten that the nature of
telecommunication systems is quite different from the railway business.
In my view,
Dickson C.J.’s observation that the general approach adopted in the
[communications] cases “is critical to the disposition of this [transportation]
appeal” is of greater interest than the underlined observation that the
technologies differ. Dickson C.J. continued:
It is worthwhile, therefore, to consider other cases which deal with the
same division of powers issues under s. 92(10) (a), but with respect to
different industries. In doing so, it will become apparent that the
application of the Northern Telecom approach is consistent with
jurisdictional rulings made in other cases. [pp. 1144-45]
In my view, with
respect, far from saying that the legal focus is different in transportation
and communication cases, Dickson C.J. is emphasizing that the focus is the
same. The technology may differ from one industry to the other, the Chief
Justice acknowledges, but the test set out in the context of a communications
undertaking in Northern Telecom is “consistent with jurisdictional
rulings made in other cases” and is therefore applicable to the transportation
undertaking in Central Western Railway (p. 1145).
[105]
My colleague also quotes the passage from Dickson C.J., at pp. 1145-46
of the Central Western Railway decision:
Central Western is physically contained within the province of Alberta,
much like the pipeline in National Energy Board (Re). In both
instances, spatial boundaries limit the range of the business’ operations,
something which can less easily be said with regard to broadcasting systems,
where territorial boundaries are not extremely critical to the nature of the
enterprise.
With respect, I
read this passage as simply elaborating the view that “different industries”
have different technologies, as referred to in the first quoted passage.
Nowhere does Dickson C.J. say the test is anything other than the scope of the
service — within the province or extending beyond the province — provided by
the undertaking whose labour relations are at issue.
[106]
Accordingly, unless we are to reverse AGT and Central Western
Railway on the fundamental test, it seems to me the Court has already
decided that an undertaking that offers an interprovincial service is no less
an interprovincial undertaking because part of the performance of its
undertaking is contracted out to unaffiliated service providers.
D. Communications
Cases Were Relied on in the Transportation Cases and Vice Versa
[107]
The reasoning of the then Chief Justice in AGT drew on a pair of
earlier Supreme Court decisions in Capital Cities Communications Inc. v.
Canadian Radio-Television Commission, [1978] 2 S.C.R. 141, and Dionne,
both of which challenged the right of the CRTC to regulate cable television
companies whose physical works and customers were situate entirely within
a single province. The cable distributors in both cases picked up signals that
emanated from other provinces and/or the United States. In both cases, this
Court concluded that the cable undertaking was interprovincial and thus under
federal jurisdiction. In Dionne, Laskin C.J. stated:
The fundamental question is not whether the
service involved in cable distribution is limited to intraprovincial
subscribers or that it is operated by a local concern but rather what the
service consists of. This is the very question that was faced by the Privy
Council in the Radio case, supra, (in a different context, it is
true) and which was also before that body in Attorney General of Ontario v.
Winner. [Emphasis added; p. 197.]
Winner,
of course, dealt with an interprovincial bus carrier. Laskin C.J. perceived no
need to make any distinction between the legal test for transportation and
communication undertakings as is urged in this case by my colleague Rothstein
J. In fact, Laskin C.J. continued:
In all these cases, the inquiry must be as to the service that
is provided and not simply as to the means through which it is carried on.
[Emphasis added; p. 197.]
Justice
Rothstein’s proposed test, in my view, stands Laskin C.J.’s proposition on its
head by focussing on the means through which the undertaking is carried on
rather than on the interprovincial service it provides to its customers.
E. The
Ejusdem Generis Principle
[108]
As my colleague notes, the words “other Works and Undertakings” are to
be read as being of the same type as the transportation (such as railways) and
communication (such as telegraph) works and undertakings referred to. The
genus thus includes both transportation and communications. No one on this
appeal contended that undertakings not engaged in interprovincial
transportation and communications are included. Thus s. 92(10)(a) is of
limited application and as interpreted it does not threaten the appropriate
equilibrium between federal and provincial authority.
[109]
As to what constitutes an interprovincial or international undertaking
in transportation or communications, the ejusdem generis interpretive
principle provides no help, in my opinion.
F. Reliance
on Prior Lower Court Decisions
[110]
I would characterize the prior lower court jurisprudence in the freight
pickup and delivery cases as a mixed bag.
[111]
Rothstein J. cites Re The Queen and Cottrell Forwarding Co. (1981),
124 D.L.R. (3d) 674, a 1981 decision of the Ontario Divisional Court which was
taken neither to this Court nor to the Ontario Court of Appeal. In that case,
Steele J.’s passing reference (at p. 676) to Cottrell’s Western Canada
operations as “similar to those in Ontario” prompted the majority in the Court
of Appeal in this case to say that “[a] reference to something being ‘similar’
is not revealing, and certainly does not clarify how integrated the system
might be when viewed overall from the perspective of management,
interdependency, unifying characteristics and so on” (para. 66). In other
words, the report of the Cottrell case, unlike the decision of the
Alberta Board in this case, lacked the necessary factual foundation to
characterize the service offered by Cottrell as an interprovincial
undertaking. If in fact Cottrell’s undertaking was the same as Fastfrate’s
then, with respect, I think the decision of the Ontario Divisional Court was
wrong.
[112]
As to my colleague’s reliance on In re Cannet Freight Cartage Ltd.,
[1976] 1 F.C. 174 (C.A.), the facts are easily distinguishable. All of
Cannet’s operations occurred in Ontario. As Rothstein J. notes, at para. 55,
Cannet was a company related to Cottrell. Cottrell solicited freight from
customers in the Toronto area for forwarding to Western Canada and contracted
with the Canadian National Railway Company for shipment of the freight.
Cannet’s role was limited to picking up the freight from customers (primarily
in the Toronto area but never outside of Ontario) and loading the goods onto CN
rail cars. Cannet had no further involvement with the shipment or delivery of
the freight. Given that Cannet’s operations were entirely contained within the
province of Ontario, the decision in Cannet has little bearing on the
present case.
[113]
Dickson C.J. cited with approval Cannet (but not Cottrell)
in Central Western Railway for the proposition that “a shipper on that
railway from one province to another does not, by virtue of being such a
shipper, become the operator of an interprovincial undertaking” (p. 1146,
citing Cannet, at p. 178). This is an uncontentious starting point, but
is not determinative of the issue in this case. Fastfrate’s undertaking is much
more than that of a mere shipper. It undertakes to collect freight from a
consignor in one province and deliver it to the consignee in another.
[114]
Reference is also made by my colleague to the decision of the Canada
Labour Relations Board (“CLRB”) in D.H.L. International Express Ltd. (1994),
96 di 106. That case concerned an “express pick‑up and delivery courier
service” utilizing a network of 14 offices across Canada — 8 of which it owned
and 6 of which were franchised. Items in Calgary were picked up by DHL
employees and returned to its local office where they were sorted by
destination. Goods being delivered out of the province were then driven to the
airport where they were loaded on a commercial or charter airplane and
delivered to their destination. At the receiving end, the goods were recovered
by DHL employees and delivered. All of this was co‑ordinated through the
DHL’s head office in Mississauga. Over 90 percent of DHL’s deliveries handled
by the Calgary office were interprovincial or international.
[115]
The CLRB found that DHL was engaged in an interprovincial and
international goods and document delivery service that was part of one
indivisible core federal undertaking. Noting that DHL did not actually
transport freight across provincial boundaries, relying instead on contracted
airlines, the CLRB held that this did not exclude federal jurisdiction. This
outcome, of course, is quite consistent with AGT.
G. Application
to the Fastfrate Facts
[116]
It is evident that Fastfrate operates as a single enterprise, subject to
common management, control and direction. There is, of course, some managerial
discretion at the local level, but the facts set out by the Alberta Board show
that the “single enterprise” element is met. Not only that, but as was said of
AGT, one could not separate the local from the interprovincial without
gutting Fastfrate’s enterprise as it presently exists. Of course, central
management is not determinative of the issue, but it is a factor that may be
considered in characterizing the undertaking.
[117]
Although Fastfrate attempted to characterize its provincial terminals as
relatively independent and self-contained, the fact is that a Fastfrate
terminal at the point of a shipment’s origin has to be functionally integrated
with the operation of the Fastfrate terminal at the point of delivery in order
to perform its pickup and delivery service. This is not the case of a company
that is simply present in each province with a stand-alone operation — like a
chain of clothing stores. On the contrary, each Fastfrate terminal is
dependent on its sister terminals; the service offered depends on functional
integration in the performance of Fastfrate’s contractual interprovincial
undertaking to its customers.
[118]
What Fastfrate does — the service it provides, its “undertaking” — is to
move freight from the hands of a customer in one part of the country to the
hands of a customer in another part of the country. Based on the facts found
by the Alberta Board, I agree with its conclusion that Fastfrate’s labour
relations are subject to federal regulation.
IV. Conclusion
[119]
I would dismiss the appeal.
Appeal allowed with costs, McLachlin C.J.
and Binnie and Fish JJ. dissenting.
Solicitors for the appellant: McLennan Ross, Calgary.
Solicitors for the respondent the Western Canada Council of
Teamsters: McGown, Johnson, Calgary.
Solicitor for the respondent the Alberta Labour Relations
Board: Alberta Labour Relations Board, Edmonton.
Solicitor for the intervener the Attorney General of
Ontario: Attorney General of Ontario, Toronto.
Solicitor for the intervener the Attorney General of
Quebec: Attorney General of Quebec, Sainte‑Foy.