Docket: A-118-15
Citation:
2015 FCA 259
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CORAM:
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DAWSON J.A.
RYER J.A.
WEBB J.A.
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BETWEEN:
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NORTHERN AIR
SOLUTIONS INC.
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Applicant
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and
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UNITED FOOD AND
COMMERCIAL WORKERS CANADA, LOCAL 175
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario, on
November 18, 2015)
RYER J.A.
[1]
This is an application for judicial review of a
decision of the Canadian Industrial Relations Board (the “Board”), dated February 10, 2015 and cited as 2015
CIRB 773, granting the application by United Food and Commercial Workers
International Union, Local 175 for certification as the bargaining agent for
certain employees of Northern Air Solutions Inc. (“Northern
Air” or the “Applicant”).
[2]
Northern Air provides interprovincial and
international air ambulance and charter airline services to the public. It
holds a Transport Canada air operating certificate and an Ontario Ministry of
Natural Resources air ambulance operating certificate.
[3]
The Board found that it had jurisdiction over
the certification application in respect of Northern Air’s employees in both
its air charter and air ambulance services, under section 4 of the Canada
Labour Code, R.S.C. 1985, c L-2 (the “Code”), on
the basis that such employees were employed in a federal work, undertaking or
business as defined in section 2 of the Code.
[4]
In this appeal, Northern Air asserts that the
Board erred in its determination that it had jurisdiction over the
certification application.
[5]
The standard of review with respect to matters
of constitutional interpretation is correctness. However, factual findings that
underpin the constitutional analysis are reviewed on the deferential standard
of reasonableness. See Consolidated Fastfrate Inc. v. Western Canada Council
of Teamsters, 2009 SCC 53, [2009] 3 S.C.R. 407, at paragraph 26, where Justice
Rothstein states “… factual findings regarding the
operations and organizational structure of Fastfrate merit deference.”
[6]
In this Court, the Applicant asserts that the
Board erred by failing to make any finding as to whether Northern Air had a
single business or two separate businesses, an airline business and an air
ambulance business, thereby erring in its application of the functional test as
enunciated in Tessier Ltée v. Quebec (Commission de la santé et de la
sécurité du travail), [2012] 2 S.C.R. 3.
[7]
While the Board did not explicitly state that
Northern Air operated a single business, no other conclusion can be discerned
from its reasons:
•
At paragraph 32, the Board stated that it was to
examine the nature of the employer’s operations, not the role of any specific
employees in those operations.
•
At paragraph 33, the Board determined that
aircraft were used in providing all of its services, including air
ambulance services.
•
At paragraph 37, the Board found that the unique
character of the air ambulance services is transportation of patients by
airplane.
•
At paragraph 38, the Board found that the habitual
activity of Northern Air is air transportation and that the circumstances of
its passengers – holiday goers or sick people – does not alter the conclusion that
it is in the business of providing air transportation.
[8]
These portions of the Board’s reasons show that
it reached the conclusion that Northern Air had a single business of air
transportation.
[9]
This factual conclusion on the part of the Board
was open to it on the evidence in the record before it. As such, we can discern
no reviewable error on the part of the Board in reaching this conclusion.
[10]
The Applicant also asserts that the Board erred
in finding that the use of aircraft was determinative of the functional test.
In our view, the Board made no such finding. Rather, its conclusions with
respect to the role of aircraft in the operations of Northern Air were factual
findings that were open to it. Indeed, it is hard to quarrel with a finding
that one cannot operate an air ambulance service without an airplane.
[11]
In conclusion, it is our view that the Board’s
finding that the employees engaged in its charter airline and air ambulance
services were employed in the operation of a federal work, undertaking or
business, within the meaning of section 2 of the Code, is supportable on the
basis of the record.
[12]
For these reasons, the application for judicial
review is dismissed with costs.
"C. Michael Ryer"
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