Date:
20100329
Docket:
A-286-09
Citation: 2010 FCA 89
CORAM: SHARLOW
J.A.
DAWSON J.A.
TRUDEL
J.A.
BETWEEN:
CHC GLOBAL
OPERATIONS (2008) INC.
Applicant
and
GLOBAL
HELICOPTER PILOTS ASSOCIATION
Respondent
REASONS FOR JUDGMENT
DAWSON J.A.
[1]
The
applicant is a Canadian business with headquarters in Richmond, British
Columbia. It is one of the largest and most geographically diverse helicopter
operations in the world, providing chartered helicopter services to the oil and
gas industry in Canada and around the world.
[2]
In
2006, the respondent applied to the Canada Industrial Relations Board (Board)
for certification as the bargaining agent for a group of helicopter pilots
hired by the applicant. On June 30, 2009, the Board ordered the respondent be
certified as the bargaining agent for the group of pilots. The bargaining unit
was comprised of:
all pilots
employed by CHC Global Operations (2008) Inc., excluding full-time
managers, pilots whose primary duty is non-flying base manager, and foreign
national pilots employed by CHC partner companies.
Issues
[3]
This
is an application for judicial review of that decision. Two issues are raised
by the applicant:
a. What is the
standard of review to be applied to the Board’s decision?
b. Did the Board
err in its determination that it had jurisdiction to include the pilots who
were the subject of that application for certification in the bargaining unit?
Procedural History
[4]
The
applicant filed a primary objection to the application for certification
alleging the Board lacked jurisdiction to certify the requested bargaining
unit. The applicant asserted that only those pilots employed on or in
connection with its operation in Halifax,
Nova Scotia were persons employed on or
in connection with a federal work, undertaking or business as defined in
section 2 of the Canada Labour Code, R.S.C. 1985, c. L-2 (Code). All
other employees were not, in the applicant's view, employed on or in connection
with a federal work, undertaking or business. As a result, by operation of
section 4 of the Code the Board lacked jurisdiction to include the other
employees in the proposed bargaining unit. The definition of federal work,
undertaking or business contained in section 2 and section 4 of the Code are
set out in the Appendix to these reasons.
[5]
A hearing
was held by the Board in respect of the applicant's jurisdictional objection.
For the purpose of that hearing, it was assumed that the applicant was the
employer of all the helicopter pilots sought to be included in the bargaining
unit.
[6]
In
December of 2007, the Board issued its decision on the objection (Preliminary
Decision). The Board found that it had the initial jurisdiction to entertain
an application for certification that included different categories of pilots
who worked out of various operations other than the one in Halifax, Nova Scotia. The Board concluded that a
final decision depended upon who was the true employer of some of the affected
pilots.
[7]
After the
applicant unsuccessfully sought reconsideration of that decision, a further
hearing was convened which resulted in the Board's decision of June 30, 2009
(Final Decision). This is an application for judicial review of the Final
Decision.
The Board’s Decisions
[8]
The Board
held the Final Decision was to be read with its Preliminary Decision. It
directed that, as the parties had agreed, the findings of fact made in the
Preliminary Decision were not to be disturbed or revisited.
[9]
In the
Preliminary Decision, the Board characterized the applicant's objection to
raise an issue of jurisdiction which the Board stated to be "are the
Global Operations pilots, who are subject of the application for certification,
employed on or in connection with the operation of a federal work, business or
undertaking?
[10]
The Board
viewed the first step to be to decide whether the employer was a federal work
or undertaking. It found that:
72. […]
It is Global Operations, the Canadian business operating out of Richmond,
British Columbia that constitutes the federal business or undertaking that
carries on a business of chartering helicopters to service the oil and gas
industry operating in Canada and around the world. It recruits, hires and
trains the pilots as well as sets up and maintains the infrastructure to
conduct its operations from different bases all over the world. Global
Operations is the federal aeronautics business or undertaking that falls within
the jurisdiction of section 4 of the Code.
[11]
The next
step for the Board was to consider the relation of the various employees to the
federal undertaking. There was no dispute about the employees who worked at
the applicant’s base in Halifax. With respect to the
contentious issue of the pilots who did not fly within Canada, the question for the Board was whether
they could be characterized as employees employed on or in connection with the
operation of a federal undertaking. The Board stated:
[…] the focus
here is to examine Global Operations, as the Canadian federal business – the
extent to which it has extended its own business and operations
extra-territorially when it established its international bases and the local
entities with which it operates – and determine whether the pilots who work in
these extra-territorial operations can be said to be employed on or in connection
with the operation of that federal business.
[12]
Before
reviewing the relevant evidence, the Board reviewed its and this Court’s prior
jurisprudence. The Board synthesized the jurisprudence in the following terms:
83. From
these decisions we may draw out [and] establish the following facts and
criteria which have been deemed relevant and persuasive, but which must be
weighed and considered on a case-by-case basis, when determining whether
federal legislative competence and the application of the Code extend to
the extra-territorial operations of a federal work, undertaking or business,
and the employees working on or in connection with them:
1.
whether
there is a federal undertaking carrying on business in Canada;
2.
whether
the employees who work in the extra territorial operations perform work for or
are linked in some way to that federal undertaking;
3.
whether
employees are hired in Canada;
4.
whether
employees are Canadian citizens and/or resident in Canada;
5.
by
whom and how the employees are paid;
6.
where
the work in question is performed;
7.
who
owns the equipment utilized in the extra-territorial operations;
8.
whether
Canadian legislation, regulations or policies are, or can be enforceable in
respect of the Canadian overseas operations.
[13]
No one
factor was said to be determinative. Each case is based upon its own facts.
[14]
Then, over
the following eight paragraphs of its reasons, the Board succinctly summarized
the evidence before it as follows:
87. Global
Operations is a Canadian corporation with headquarters in Richmond, British
Columbia.
The pilots, regardless of their country of origin, are hired in Richmond,
British Columbia. This is the situs of their employment contract. All the
pilots receive their initial orientation at Global Operations in Richmond, British
Columbia.
Global Operations provides for standardized training of all pilots by its own
instructors, which is arranged and co-ordinated by Global Operations in Richmond. Chief
Pilot Lepore is located in Richmond, British Columbia, and is
responsible for establishing the common standards of competence for all pilots.
88. Relying
on the employer’s evidence, less than 50% of the pilots employed are Canadian
citizens and less than 50% reside in Canada. Some continue to
reside in their country of origin, while others have taken up residence in the
country from which they work. Some pilots may only see Canada during the
time of their orientation and training and may never return to Canada in the
future.
89. Global
Operations manages the evaluation and renewal of pilots’ licenses. Global
Operations has developed a program of license conversion in which pilots may
have their primary license converted to a Canadian license, thereby simplifying
the licensing of pilots employed by Global Operations in different parts of the
world.
90.
All
pilots perform the same work, both within and outside Canada. The
employee handbook prepared by Global Operations, which applies to all pilots
regardless of their location in the world, sets out the common terms and
conditions of employment. Global Operations states that as a matter of best
practices it applies the Canadian regulatory framework which reflects certain
minimum standards set by Canadian legislation to all pilots regardless of where
they are assigned. All these pilots work under these terms and conditions.
91.
Global
Operations coordinates all visas and work permits from Richmond, British
Columbia,
although the local entity will assist with the process.
92.
With
the exception of those at the Halifax base, the pilots
perform their work outside of Canada in the foreign locations. Most fly
aircraft registered in that foreign location under air operators certificates
issued by the respective foreign jurisdictions. They report to and are
supervised by a Base Manager located in the foreign jurisdiction.
93.
Global
Operations is responsible for the assignment and re-assignment of all pilots.
If a pilot refuses an assignment he/she can be considered as dismissed from
employment. Global Operations in Richmond is responsible for all
discipline and dismissal of pilots that it has retained on its payroll. It has
also applied to HRDC (Human Resources Development Canada) [now HRSDC] and
received permission to average the wages of all its pilots. Global Operations
is reimbursed for the payment of wages it makes on behalf of the pilots.
94. Finally,
Global Operations provides administrative and technical support to local
entities and to pilots. This takes the form of such things as Flight
Operations and Maintenance manuals, which are essential to not only the work of
the pilots but also to the ability of any of its partner airlines to obtain an
[Air Operator Certificate] – a license is required to operate a commercial
airline in all countries.
[15]
The Board
concluded that if, as had been assumed before it, the applicant was the true
employer of all the pilots in question, many, if not all, of the pilots could
be considered to have sufficient connection to the employer as a federal
undertaking. The hearing was adjourned to reconvene later to consider whether
the applicant, a federal undertaking, was the true employer of the pilots in
question.
[16]
In its
Final Decision, the Board stated the principal issue to be determined at that
time was whether the applicant "which has already been found to be a
federal undertaking, is the true employer of the pilots affected by the
certification application." After reviewing the applicable jurisprudence
on the issue of true employer, the Board reiterated a number of the findings of
fact made in its Preliminary Decision. The Board went on to find:
103. Global
Operations is the largest helicopter company in the world. It has an
acknowledged experience and expertise in providing chartered helicopter
services. It operates its own base in Halifax; it operates under its own [Air
Operator Certificate] in Brunei, Azerbaijan, Georgia and Vietnam. The
corporate relationship between Global Operations and the other local entities
varies. Some are owned in full and others in part, except Euro-Asia in Kazakhstan, which is
independent. However, Global Operations has an agreement with Euro-Asia
whereby its pilots, in servicing the contract with the oil company, operate
pursuant to the [Canadian Operations Manual].
[17]
After
reviewing in detail the evidence relevant to the control of the day-to-day
operations of the pilots, the Board concluded:
121. Notwithstanding
the corporate structure and the varying degrees of relationship between Global
Operations and the local entities in question, the evidence was conclusive that
Global Operations controls access to employment of the pilots in question,
establishes the working conditions of those pilots, controls the performance of
work, and is perceived as the true employer of the pilots who are the subject
of this application. Global Operations hires and assigns the pilots to the
various bases around the world. It sets out the terms and conditions of
employment and establishes the standards necessary to assign a pilot to a
base. Global Operations has ultimate control over the selection of pilots and
the determination of whether a pilot will be terminated or disciplined. The
pilots maintain the same terms and conditions of employment when they are
assigned from one base to another and their years of service are recognized by
Global Operations. When not assigned to a particular base, a pilot remains
part of Global Operations and continues to receive a salary from Global
Operations.
122. When
all the factors set out in Nolisair, supra, are considered, the evidence
overwhelmingly points to the fact that Global Operations exercises fundamental
control over the working conditions of the pilots who are the subject of this
application. A finding in this respect is not only consistent with the facts,
it is also conducive to sound labour relations and consistent with the
objectives of the Code to promote access to collective bargaining.
Alleged Errors
[18]
As noted
above, the applicant alleges the Board exceeded its jurisdiction. It argues,
correctly, that section 4 of the Code limits the application of Part 1 of the
Code to employees employed on or in connection with the operation of any
federal work, undertaking or business. The applicant further argues, again
correctly, that the question whether a work, undertaking or business is a
federal one depends upon the nature of the operation. The corporate structure
of the employer is not determinative. What is relevant is what operation the
undertaking or business actually performs. From this, the applicant argues the
Board erred by stating, at paragraph 72 of its Preliminary Decision, that
"the first step is to identify whether or not the employer in this case is
a federal work or undertaking."
[19]
The
applicant also argues the Parliament of Canada has no legislative or regulatory
authority over aircraft flying domestically in a foreign country or over the
operations of the foreign entities that work in partnership with the applicant.
Standard of Review
[20]
The
applicant argues the standard of review to be applied is correctness. This is
said to be because the Board was required to be correct when assessing whether
the employees in question met the jurisdictional requirement of section 4 of
the Code.
[21]
The
respondent argues the standard of review to be applied is reasonableness.
[22]
It is
settled law that the applicable standard of review in cases of constitutional
interpretation is correctness. However, the Board's decision was predicated
upon its findings of fact about the nature of the applicant's operation and the
relationship between that operation and the pilots. Where, as in this case,
the constitutional analysis can be separated from the underlying findings of
fact, this Court should show deference to the Board's factual findings. See: Consolidated
Fastfrate Inc. v. Western Canada Council of Teamsters, [2009] 3 S.C.R. 407.
Application of the
Standard of Review
[23]
Turning to
the asserted error, I agree the Board could have been more careful with its
language at paragraph 72 of the Preliminary Decision. Despite such language,
at paragraph 68 of its decision, the Board had correctly expressed the question
to be whether the subject pilots were "employed on or in connection with
the operation of a federal work, business or undertaking." Having
previously correctly stated the issue, I am satisfied that the less precise
language found at paragraph 72 did not constitute a misdirection of law on the
part of the Board.
[24]
Moreover,
it is important not to parse the Board’s language too finely. Paragraph 72 in
its entirety reads as follows:
72. The
Board agrees that the first step is to identify whether or not the employer in
this case is a federal work or undertaking. In our view, the starting point is
to look at Global Operations itself. It is clear from the summary of the
evidence outlined above that there is much more to Global Operations itself, as
a business or undertaking, than just its base operating out of Nova Scotia. It is
Global Operations, the Canadian business operating out of Richmond, British
Columbia that constitutes the federal business or undertaking that carries on a
business of chartering helicopters to service the oil and gas industry
operating in Canada and around
the world. It recruits, hires and trains the pilots as well as sets up and
maintains the infrastructure to conduct its operations from different bases all
over the world. Global Operations is the federal aeronautics business or
undertaking that falls within the jurisdiction of section 4 of the Code.
[25]
Read
fairly, in my view the Board did direct itself to the nature of the applicant's
operation. The summary of the evidence referenced in paragraph 72 began with
an introductory paragraph stating that what followed "is an overview of
the employer's operations at both its headquarters and at some of its overseas
operations as it relates to its helicopter pilots in particular." The
summarized evidence related to the resources and operations of the applicant,
its role in setting flight standards and licensing pilots, its relationship
with partner aviation services, and its participation in the training and
assignment of the pilots. All of this evidence was relevant to the nature of
the applicant’s operation and the relationship between that operation and the
pilots.
[26]
In view of
the Board's initial correct articulation of the relevant test and the content
of its analysis, I find that the Board did not err as the applicant asserts.
[27]
The
conclusion that the Board properly directed itself to the nature of the
applicant’s operation is supported by the comments made by the Board when it
rejected the applicant's request for reconsideration of the Preliminary
Decision. The application for reconsideration was based upon the assertion
that the Board had previously erred by considering the nature of the employer
and not the nature of its operations. The Board rejected this argument on the
following basis:
19. With
respect, the reconsideration panel does not agree with the employer’s
characterization of the original panel’s decision.
20. Firstly,
the original panel made a factual finding that the employer’s extra-territorial
operations are not, as contended, entirely in foreign jurisdictions. As the
evidence demonstrated, the recruiting, hiring, training, discipline and
dismissal of the pilots takes place in Canada, as does the
overall administration of the employer’s operations.
[…]
22. Lastly,
this reconsideration panel is of the view that the original panel approached
the jurisdictional issue in an appropriate fashion. Section 4 of the Code
provides that Part I applies in respect of employees who are employed
by any ‘federal work, undertaking, or business’. Before determining whether
Part I has any application in this matter, the original panel had to satisfy
itself that CHC Global Operations constituted a ‘federal work, undertaking or
business’, as that term is defined in section 2 of the Code. In making
that determination, the original panel took into consideration the global
nature of CHC Global Operations’ activities. The original panel, after
reviewing the relevant jurisdictional facts, chose to treat the employer as a
single entity for the purposes of its jurisdictional analysis. The
reconsideration panel cannot find fault with this approach, given that the
facts before the original panel demonstrated a reasonable degree of integration
between the employer’s overseas activities and its Canadian operations.
23. For
the purposes of the jurisdictional issue only, CHC Global Operations admitted
that it was the employer of the employees in the proposed bargaining unit,
although it reserved the right to raise the issue of the “true employer” should
the application proceed beyond the preliminary issue. The evidence showed, and
the employer does not contest, that the nature of its business is aeronautics.
Accordingly, the original panel of the Board correctly concluded that this
Board has authority to entertain the application for certification, as the
nature of the employer’s business places it within the legislative authority of
Parliament for labour relations purposes. [Emphasis added.]
[28]
The conclusion
the Board did not err is further supported by the Board's analysis in its Final
Decision about who exercised fundamental control over the pilots (particularly
the Board's analysis at paragraphs 104 to 122 of its reasons). The Board found
the applicant controlled the pilots’ access to employment, their assignments,
their training requirements, the terms of their employment, their working
conditions and performance, and their discipline and termination. The exercise
of such day-to-day control further demonstrated the nature of the applicant's
operation. The Board's unchallenged findings on this point support its
original functional analysis and conclusion that the applicant's business
operating out of Richmond, British Columbia constituted a federal business or
undertaking that carried on the business of chartering helicopters to service
the oil and gas industry in Canada and around the world.
[29]
As to the
fact that some pilots fly domestically in foreign countries, the operation of
the Code is not restricted to employees performing work within Canada. Persons working outside Canada's territorial jurisdiction
can be included in a bargaining unit certified by the Board, so long as they
are employed on a work, undertaking or business that falls within the
legislative authority of Parliament. See, for example, Seafarers'
International Union of Canada v. Crosbie Offshore Services Ltd., [1982] 2
F.C. 855 (C.A.); leave to appeal dismissed, [1982] S.C.C.A. No. 294. Inherent
in that conclusion is that employees working abroad may well be subject to the
regulatory authority of another country. As the respondent argues, this does
not affect the employees’ relationship with their employer, or limit the
applicability of the Code to the terms and conditions of the employees’
employment.
[30]
In sum,
the Board correctly recognized that, as a matter of law, it was required to
analyse the applicant's operation on a functional basis to determine whether
its operation, including its extra-territorial operation, constituted a federal
work, undertaking or business. The Board then made factual determinations
about the nature of the applicant's operation and the relationship between the
pilots and that operation. The Board's factual findings have not been
challenged directly and were reasonable. The applicant has failed to establish
any reviewable error.
Conclusion
[31]
For these
reasons, I would dismiss the application for judicial review with costs payable
by the applicant to the respondent.
“Eleanor
R. Dawson
“I
agree
K.
Sharlow J.A.”
“I
agree
Johanne
Trudel J.A.”
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