Canada Labour Relations Board et al. v. Paul L’Anglais Inc. et al., [1983] 1 SCR 147

Supreme Court of Canada

Canada Labour Relations Board et al. v. Paul L’Anglais Inc. et al., [1983] 1 S.C.R. 147

Date: 1983-02-08

The Canada Labour Relations Board and the Attorney General of Canada Appellants;

and

Paul L’Anglais Inc. and J.P.L. Productions Inc. Respondents;

and

The Canadian Union of Public Employees, the Attorney General of Quebec and Télé‑Métropole Inc. Mis en cause;

and

The Attorney General for New Brunswick and the Attorney General for Alberta Interveners.

The Canadian Union of Public Employees Appellant;

and

Paul L’Anglais Inc. and J.P.L. Productions Inc. Respondents;

and

The Canada Labour Relations Board, the Attorney General of Canada, the Attorney General of Quebec and Télé-Métropole Inc. Mis en cause;

and

The Attorney General for New Brunswick and the Attorney General for Alberta Interveners.

File No.: 16384.

1982: October 25, 26; 1983: February 8.

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

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Courts—Jurisdiction—Superior Court—Superintending and reforming power—Federal agency—Decision of Canada Labour Relations Board—Decision regarding constitutional division of powers—Motion in evocation—Whether s. 18 of Federal Court

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Act excludes the superintending and reforming power of the Superior Court—Federal Court Act, R.S.C 1970 (2nd Supp.), c. 10, s. 18—Canada Labour Code, R.S.C 1970, c. L-1, as amended, s. 122—Code of Civil Procedure, arts. 846, 847—Constitution Act, 1867, s. 101.

Constitutional law—Division of legislative authority—Labour relations—Jurisdiction of Canada Labour Relations Board—Subsidiaries of television broadcasting business—Whether labour relations in respondent businesses fall under provincial or federal jurisdiction—Whether Canada Labour Code applies to respondents—Constitution Act, 1867, ss. 91, 92—Canada Labour Code, R.S.C. 1970, c. L-1, as amended, ss. 2, 108.

Respondents are subsidiaries of Télé-Métropole Inc., a television broadcasting business. J.P.L. Productions Inc. is a company producing programs and commercial messages, and Paul L’Anglais Inc. is engaged in selling sponsored television air time. By a motion in evocation, respondents argued that there had been an excess of jurisdiction and applied to the Superior Court for a writ of evocation from a decision of the Canada Labour Relations Board, which held (1) that respondents were federal undertakings, and (2) that their employees performed work which falls under the jurisdiction of the Canada Labour Code. As a consequence of ss. 18 and 28 of the Federal Court Act, the Superior Court found that it had no jurisdiction and dismissed the motion. The Court of Appeal reversed the judgment and ordered the writ to be issued. Hence this appeal, which raised two questions: (1) does the Superior Court, despite s. 18 of the Federal Court Act, have jurisdiction to hear a proceeding in evocation against the Canada Labour Relations Board, when the decision sought to be reviewed concerns the question of whether labour relations within a business fall within federal or provincial jurisdiction? (2) does the Canada Labour Code apply to labour relations and working conditions within respondent businesses?

Held: The appeals should be dismissed.

(1) Section 18 of the Federal Court Act did not apply to supersede the superintending and reforming power of the Superior Court, and its jurisdiction in evocation over the decision rendered in the case at bar by the Canada Labour Relations Board. Parliament had a perfect right to enact that the superintending and reforming power over federal agencies acting in the administration of the laws of Canada—laws enacted by the federal Parlia-

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ment and within its competence—will be exercised exclusively by the Federal Court, a court created for the better administration of those laws. However, it could not confer such an exclusive power on the Federal Court when what was involved was no longer the administration of a law of Canada, but as here, the interpretation and application of the Constitution. Parliament also could not exclude this power by the privative clause of s. 122 of the Canada Labour Code.

(2) The Canada Labour Code did not apply to respondents. First, respondents were not federal works, undertakings or businesses. Even though respondents were subsidiaries of a television broadcasting business—which as such is a federal undertaking over which the Board has jurisdiction—on examining the nature of respondents’ respective operations, in light of the legislative definitions of “broadcasting” and of “radiocommunication”, it could be seen that the sale of time for sponsored programs and the production of programs and commercial messages broadcast by other persons were not activities falling within this field of federal jurisdiction. Second, the facts alleged—which were taken as proven—in the motion and the exhibits filed in support of it did not show a vital relationship between the operation of the federal undertaking and those of its subsidiaries. The activities of respondents did not form an integral part of the federal undertaking and were not indispensable to its operation.

Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307; Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754; Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115, followed; Valin v. Langlois (1879), 3 S.C.R. 1, aff’d by (1879), 5 App. Cas. 115; Three Rivers Boatman Ltd. v. Conseil canadien des relations ouvrières, [1969] S.C.R. 607; Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228; Howarth v. National Parole Board, [1976] 1 S.C.R. 453; Attorney General of Canada v. Canard, [1976] 1 S.C.R. 170; R. v. Thomas Fuller Construction Co. (1958) Ltd., [1980] 1 S.C.R. 695; Consolidated Distilleries Ltd. v. Consolidated Exporters Corporation Ltd., [1930] S.C.R. 531; Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054; François Nolin Ltée v. Commission des relations de travail du Québec, [1968] S.C.R. 168; Oznaga v. Société d’exploitation des loteries et courses du Québec, [1981] 2 S.C.R. 113; Rabinovitch v. Chechik, [1929] S.C.R. 400, aff’g (1928), 45 (Que.) K.B. 129; Marquette Marketing Corp. v. Continental Insurance Co., [1977] C.A. 533, referred to.

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APPEALS from a judgment of the Quebec Court of Appeal, [1981] C.A. 62, 122 D.L.R. (3d) 583, which reversed a judgment of the Superior Court refusing to issue a writ of evocation. Appeals dismissed.

George A. Allison, Q.C., for the appellant and mis en cause the Canada Labour Relations Board.

Gaspard Côté, Q.C., for the appellant and mis en cause the Attorney General of Canada.

Richard Cleary, for the appellant and mis en cause the Canadian Union of Public Employees.

Roy Heenan and Guy Dufort, for the respondents.

Louis Crête and Odette Laverdière, for the mis en cause the Attorney General of Quebec.

William A. Anderson and Bruce Judah, for the intervener the Attorney General for New Brunswick.

Brian A. Crane, Q.C., for the intervener the Attorney General for Alberta.

English version of the judgment of the Court delivered by

CHOUINARD J.—These appeals raise two questions, formulated in accordance with the rules of the Court:

1. Does the Superior Court of Quebec, despite s. 18 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, as amended, have jurisdiction to hear a proceeding in evocation against the Canada Labour Relations Board, when the decision sought to be reviewed concerns the question of whether labour relations within a business fall within provincial or federal jurisdiction?

2. Does the Canada Labour Code, R.S.C. 1970, c. L-1, as amended, apply to labour relations and working conditions within Paul L’Anglais Inc. and J.P.L. Productions Inc.?

Paul L’Anglais Inc. and J.P.L. Productions Inc. are subsidiaries of Télé-Métropole Inc., a televi-

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sion broadcasting business some of the employees of which are represented by the Canadian Union of Public Employees.

Paul L’Anglais Inc. is engaged in selling sponsored television air time. J.P.L. Productions Inc. is a company producing programs and commercial messages.

The Canada Labour Relations Board had before it an application for certification by the Union in respect of the employees of respondent Paul L’Anglais Inc., and an application pursuant to s. 133 of the Canada Labour Code (supra), seeking a declaration that Télé-Métropole Inc. and the two respondents were a single employer, and had before proceeding further to rule on an objection raised by respondents as to its jurisdiction. Following a hearing which lasted for several days, the Board in very elaborate reasons (1978), 28 di 934, [1979] 2 Can LRBR 332, disposed of it as follows:

We conclude therefore that Télé-Métropole Inc., Paul L’Anglais Inc. and J.P.L. Productions Inc. are federal undertakings and that their employees perform work which falls under the jurisdiction established by the Canada Labour Code. In the circumstances, the Board will pursue its investigation to determine whether section 133 is applicable to the three companies in question.

Respondents submitted to the Federal Court of Appeal an application for judicial review pursuant to s. 28 of the Federal Court Act (supra). This application was dismissed on the ground that the decision a quo is not really a decision within the meaning of s. 28. See [1979] 2 F.C. 444, (1979) 99 D.L.R. (3d) 690.

Following this, respondents submitted to the Superior Court a motion in evocation pursuant to art. 846 C.C.P. Respondents argued that there had been an excess of jurisdiction by the Board in that, in brief, the latter had found that respondents “are federal undertakings and that their employees perform work which falls under the jurisdiction established by the Canada Labour Code”, whereas their activities fall within the exclusive authority of the provincial legislatures, and that accordingly the Board found it had jurisdiction to pursue its inves-

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tigation “to determine whether section 133 is applicable to the three companies in question”.

The trial judge dismissed the motion in evocation, finding that he had no jurisdiction in the matter because, as a consequence of ss. 18 and 28 of the Federal Court Act, the superintending and reforming power over federal agencies passed from the provincial superior courts to the Federal Court.

In its unanimous judgment, the Court of Appeal reversed the judgment of the Superior Court and authorized the writ of evocation to be issued.

It held on the first question that s. 18 of the Federal Court Act is to be interpreted as not precluding a remedy in the superior courts against a decision of a federal agency when that decision relates to the division of powers allocated by the Constitution Act, 1867  to the federal government and the provinces respectively.

On the second question, in keeping with the allegations of the motion for the writ which must, at this stage, be taken as proven, the Court of Appeal found, first—and I am summarizing—that respondents’ activities are not activities within the competence of Parliament, and second, that those activities [TRANSLATION] “are not an integral part of the federal undertaking represented by the mis en cause Télé-Métropole Inc., making it necessary for the federal government to exercise jurisdiction over the employees of appellants”.

Three appeals were filed against this judgment, by the Canada Labour Relations Board and the Attorney General of Canada on the one hand and by the Canadian Union of Public Employees on the other. However, the first two appellants limited their appeal to the first question, concerning the jurisdiction of the Superior Court.

QUESTION ONE

Since Confederation the superior courts of the provinces have preserved and continued to exercise the superintending and reforming power they previously enjoyed, not only over provincial but over federal agencies as well.

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This principle was recognized in 1879 in Valin v. Langlois, 3 S.C.R. 1, which the Privy Council upheld in its refusal, with supporting reasons, to authorize an appeal: (1879), 5 App. Cas. 115.

This principle was restated by Fauteux J., as he then was, in Three Rivers Boatman Ltd. v. Conseil canadien des relations ouvrières, [1969] S.C.R. 607, at pp. 615-16. At the same time, Fauteux J. recognized that Parliament had the right to divest the provincial superior courts of this power and confer it on another court. He wrote, at p. 618:

[TRANSLATION] A legislature is presumed to legislate within the limits of its authority. The Legislature of Quebec has no authority to alter, and there is no indication that it intended to alter, by this 1957 amendment, the superintending and reforming power which the Superior Court has had since before Confederation, both by virtue of its enabling Act and as a consequence of the powers inherent in its function, over agencies which are now within the jurisdiction of Parliament and which exercise a judicial or quasi‑judicial function in the affairs of the province and make decisions which are implemented there. Parliament, which since 1867 has alone been competent to do so—cf. s. 129 of the Imperial Act, 30-31 Victoria, c. 3  (British North America Act)—has not in general terms at least conferred this superintending and reforming power on any other court.

Section 101  of the Constitution Act, 1867  gives the federal Parliament the power to create additional courts for the better administration of the laws of Canada:

101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada.

In adopting s. 18 of the Federal Court Act, which became effective on June 1, 1971, Parliament in effect divested the superior courts of the superintending and reforming power over federal agencies and conferred it on the Trial Division of the Federal Court:

18. The Trial Division has exclusive original jurisdiction

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(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and

(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

It is well established that the effect of s. 18 was to transfer all superintending and reforming power over federal agencies from the superior courts to the Federal Court: Commonwealth of Puerto Rico v. Hernandez, [1975] 1 S.C.R. 228, at p. 233; Howarth v. National Parole Board, [1976] 1 S.C.R. 453, at p. 470.

That is not at issue. Respondents are not disputing that this section validly removed federal agencies, in their administration of the laws of Canada, from the superintending and reforming power of the superior courts. What respondents are saying is that this section cannot divest the superior courts of the power to find a statute of Canada unconstitutional, or rather, as is the case here, to find a statute of Canada inapplicable when the effect of that statute is to bring within the scope of federal authority a matter which the Constitution reserves exclusively for the provinces.

The constitutionality of s. 18 was not raised. However, respondents argued, this section, which confers exclusive jurisdiction on the Federal Court, cannot be applied to set aside the superintending and reforming power of the Superior Court when the Board, in finding that respondent undertakings are federal undertakings, confers on itself a jurisdiction which belongs exclusively to the provinces.

It is this finding of the Board which is challenged by respondents: in their submission, this is not a finding applying a statute of Canada, but one which relates to the constitutional division of powers.

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In the view of respondents, the question is which legislative body, provincial or federal, has jurisdiction over their activities. They maintained that in order to decide this it is necessary to interpret and apply the relevant provisions of the Constitution Act, 1867 , and in particular ss. 91 and 92.

This question was raised in Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115. Dickson J. wrote for the Court on this point, at p. 130:

The Federal Court of Appeal appears to have treated the jurisdictional issue in this case as one of judicial review of an administrative board which has taken jurisdiction in an administrative sense. On this view, quite clearly, the onus would rest upon the applicant for judicial review and not, by implication, upon the Union. But what is in question here is not the Board’s administrative jurisdiction in the classic sense of that term, but whether the jurisdiction given by Parliament to the Canada Labour Relations Board, through s. 108 of the Code, extends to the labour relations of the employees engaged in the work, undertaking or business here at issue, i.e., the installation department of Telecom. The answer to the question posed in the order granting leave must be found, not in the principles of judicial review of administrative action, but in the principles governing the constitutional division of authority over labour relations.

In that case the Court did not decide the question in view of the lack of evidence. Dickson J. said the following at p. 139:

Equally clear from the record is the near-total absence of the relevant and material “constitutional facts” upon which such a delicate judgment must be made. On the evidence in the record, this Court is simply not in a position to resolve the important question of constitutional jurisdiction over the labour relations of the employees involved in the installation department of Telecom.

In Attorney General of Canada v. Canard, [1976] 1 S.C.R. 170, Beetz J., in separate reasons that concurred with the majority finding, referred to the limit imposed on Parliament by the Constitution with regard to the delegation of powers to federal agencies. At pages 202-03 he wrote:

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…testamentary matters and causes with respect to deceased Indians come within the class of subjects of “Indians and Lands reserved for the Indians” and that Parliament can constitutionally oust the jurisdiction of provincial courts in these as well as in other federal matters and vest it in a federal agency, subject perhaps to an obvious qualification: while Parliament has the power to establish courts for the administration of the laws of Canada, it does not necessarily follow that it can clothe a Minister, or any official or board of a nonjudicial nature with all the functions of a superior court; the powers of Parliament are limited by the wording of s. 101  of the British North America Act, 1867, as well as by the federal and fundamental nature of the Constitution which implies an inherent and entrenched jurisdiction in the courts to adjudicate in constitutional matters.

In R. v. Thomas Fuller Construction Co. (1958) Ltd., [1980] 1 S.C.R. 695, Pigeon J. wrote at p. 707:

It is settled that in s. 101 the expression “Laws of Canada” means laws enacted by Parliament.

Anglin C.J. had stated the same rule in Consolidated Distilleries Ltd. v. Consolidated Exporters Corporation Ltd., [1930] S.C.R. 531, at p. 534, in this passage which is quoted in Quebec North Shore Paper Co. v. Canadian Pacific Ltd., [1977] 2 S.C.R. 1054, at p. 1059:

It is to be observed that the “additional courts”, which Parliament is hereby authorized to establish, are courts “for the better administration of the laws of Canada.” In the collocation in which they are found, and having regard to the other provisions of the British North America Act , the words, “the laws of Canada,” must signify laws enacted by the Dominion Parliament and within its competence.

On the same point, Laskin C.J. wrote in Quebec North Shore (supra), at pp. 1065-66:

It is also well to note that s. 101 does not speak of the establishment of Courts in respect of matters within federal legislative competence but of Courts “for the better administration of the laws of Canada”. The word “administration” is as telling as the plural words “laws”, and they carry, in my opinion, the requirement that there be applicable and existing federal law, whether under statute or regulation or common law, as in the

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case of the Crown, upon which the jurisdiction of the Federal Court can be exercised.

As I mentioned, in the case at bar respondents are not disputing the constitutionality of s. 18 of the Federal Court Act. They further are not disputing the constitutionality of any other provision of the Federal Court Act or of any provision of the Canada Labour Code.

What respondents say is that the decision a quo of the Board does not constitute the administration of “applicable… federal law”. The Board’s decision precedes the administration of applicable federal law. Its purpose is to determine whether the federal law applies to respondents’ activities. To do this, the Board must decide whether these activities fall within the scope of federal authority or within provincial authority. At this stage, therefore, the Board is not interpreting and applying federal law, it is interpreting and applying the Constitution. Respondents explained the point as follows:

[TRANSLATION] The question of whether the Canada Labour Relations Board had jurisdiction to hear the application for certification undoubtedly involves a question of supervision of a lower court, in the case at bar a “federal board, commission or other tribunal” within the meaning of s. 2(g) of the Federal Court Act (S.C. 1970-71-72, c. 1 and R.S.C. 1970, 2nd Supp., c. 10), and thereby the incidental interpretation of the Canada Labour Code. However, the case at bar involves above all a question of interpretation of the Canadian Constitution, as to whether initially the provisions of the Canada Labour Code must be applied here.

The problem raised in the case at bar requires the application of rules of law which have their source in the British North America Act , cited above, and not in the Canada Labour Code (R.S.C. 1970, c. L-1 as amended), which could not be applied if the activities of respondents fall within provincial legislative authority.

Accordingly, as Dickson J. suggested in the passage cited above from Northern Telecom (supra), the answer “must be found, not in the principles of judicial review of administrative action, but in the principles governing the constitutional division of authority over labour relations”.

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For the purposes of this appeal the question is not whether the Board has the power to make a decision on its own jurisdiction, but rather whether the Superior Court can review the decision made in the case at bar by the Board.

Appellants relied principally on s. 18 of the Federal Court Act, which reserves the superintending and reforming power over federal agencies exclusively for the Federal Court. They also relied on the privative clause of s. 122 of the Canada Labour Code, which will be referred to below.

With regard to s. 18, I consider that it does not apply to supersede the superintending and reforming power of the Superior Court. Like the Attorneys General of Quebec, New Brunswick and Alberta, I consider that the decision by this Court on August 9, 1982 in Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307, also cited by respondents, is conclusive.

In that case the Director of Investigation and Research, who is responsible for applying the Combines Investigation Act, R.S.C. 1970, c. C-23, had interpreted that Act as giving him jurisdiction to initiate an investigation into the British Columbia Law Society. The latter came to the provincial Supreme Court seeking a declaratory judgment that would set aside this decision on constitutional grounds.

Among the conclusions of this action for a declaratory judgment were the following:

(a) For a declaration that upon its true construction the Federal Act in whole or in part, does not apply to the Society or to its members;

(b) In the alternative, for a declaration that if upon its true construction the Federal Act or any part thereof applies to the Society or to its members, then to such extent the said Act or any relevant part thereof is ultra vires the Parliament of Canada and is of no force and effect in respect of the Society or its members;

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The third question raised in this Court was formulated as follows:

3. Does the Federal Court, Trial Division, have exclusive jurisdiction to grant declaratory or injunctive relief against the Attorney General of Canada, the Restrictive Trade Practices Commission, the Chairman of the said commission, and the Director of Investigation and Research, in connection with:

(i) the interpretation or

(ii) constitutional applicability of the Combines Investigation Act to the Law Society of British Columbia, its governing body or its members?

Both the Supreme Court and the Court of Appeal of British Columbia recognized the jurisdiction of the Supreme Court, and concluded that this jurisdiction was not excluded by ss. 17 and 18 of the Federal Court Act. Neither of the two courts ruled on the constitutionality of these sections.

This Court gave a negative answer to the question as formulated. The Court concluded that Parliament does not have authority to adopt a statute for the establishment of a court for the better administration of the laws of Canada which can at the same time include a provision that the provincial superior courts may no longer declare a statute enacted by Parliament to be unconstitutional.

The relevant passage from the reasons of Estey J., delivering the unanimous judgment of the Court, at pp. 326-29, is the following:

There is, however, another and more fundamental aspect to this issue. The provincial superior courts have always occupied a position of prime importance in the constitutional pattern of this country. They are the descendants of the Royal Courts of Justice as courts of general jurisdiction. They cross the dividing line, as it were, in the federal‑provincial scheme of division of jurisdiction, being organized by the provinces under s. 92(14) of the Constitution Act and are presided over by judges appointed and paid by the federal government (sections 96 and 100 of the Constitution Act). As was said by Pigeon J. in R. v. Thomas Fuller Construction Co. (1958) Ltd. et al., [1980] 1 S.C.R. 695, at p. 713:

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It must be considered that the basic principle governing the Canadian system of judicature is the jurisdiction of the superior courts of the provinces in all matters federal and provincial. The federal Parliament is empowered to derogate from this principle by establishing additional courts only for the better administration of the laws of Canada.

Earlier in his judgment Pigeon J. quoted from Chief Justice Ritchie in Valin v. Langlois (1879), 3 S.C.R. 1, at pp. 19-20:

…These courts (provincially organized superior courts) are surely bound to execute all laws in force in the Dominion, whether they are enacted by the Parliament of the Dominion or by the Local Legislatures, respectively. They are not mere local courts for the administration of the local laws passed by the Local Legislatures of the Provinces in which they are organized. They are the courts which were the established courts of the respective Provinces before Confederation,… They are the Queen’s Courts, bound to take cognizance of and execute all laws, whether enacted by the Dominion Parliament or the Local Legislatures

The jurisdiction of superior courts, and indeed other courts in the provinces, to review the constitutionality of federal statutes was the subject of comment in this court in Attorney General of Canada et al. v. Canard, [1976] 1 S.C.R. 170, where Beetz J. at p. 216 stated:

Once it is conceded that the Minister has jurisdiction to appoint an administrator, the exercise of this jurisdiction can only be reviewed in accordance with the Indian Act and the Federal Court Act and not by the Courts of Manitoba. It is true that the latter’s jurisdiction had not been questioned by the appellants, presumably because the action taken by the respondent challenged the constitutional validity and the operation of the Indian Act and the Manitoba Courts had jurisdiction to adjudicate upon this issue as well as upon appellants’ counterclaim. The Courts of Manitoba could not on the other hand hear an appeal from the Minister’s decision or otherwise review it.

The Federal Court, as the successor to the Exchequer Court of Canada which was first established by Parliament in 1875, was established pursuant to the authority of s. 101 of the Constitution Act which provides “for the Establishment of any additional Courts for the Better Administration of the Laws of Canada”. The expression “laws of Canada” has been settled as meaning the laws

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enacted by the Parliament of Canada, at least for the purposes of this appeal: Thomas Fuller, supra, per Pigeon J. at p. 707. It is difficult to see how an argument can be advanced that a statute adopted by Parliament for the establishment of a court for the better administration of the laws of Canada can at the same time include a provision that the provincial superior courts may no longer declare a statute enacted by Parliament to be beyond the constitutional authority of Parliament. Sections 17 and 18 of the Federal Court Act must, in the view of the appellants, be so construed. In my view Parliament lacks the constitutional authority to so provide. To do so would strip the basic constitutional concepts of judicature of this country, namely, the superior courts of the provinces, of a judicial power fundamental to a federal system as described in the Constitution Act. At the same time it would leave the provincially-organized superior courts with the invidious task of execution of federal and provincial laws, to paraphrase the Valin case, supra, while being unable to discriminate between valid and invalid federal statutes so as to refuse to “execute” the invalid statutes. For this second and more fundamental reason I conclude that the British Columbia courts have the requisite jurisdiction to entertain the claims for declarations herein made. Moreover, it would amount to an attempt by Parliament to grant exclusive jurisdiction to the Federal Court to administer the “laws of Canada” while the validity of those laws remained unknown. Any jurisdiction in Parliament for the grant of exclusive jurisdiction to the Federal Court must be founded on exclusive federal powers under s. 91 of the Constitution Act. In so far as there is an alleged excess of that jurisdiction by Parliament, s. 101 of the Constitution Act cannot be read as the constitutional justification for the exclusion from the superior courts of the jurisdiction to pronounce upon it.

Two points were made in support of the argument that this case does not apply to the case at bar. The first was that the Law Society case concerned the constitutionality of the provision itself, and the case at bar concerns its applicability. The second argument was based on the fact that the first case involved an action for a declaratory judgment, while there was a motion for evocation in the case at bar.

In my view, neither of these points is valid.

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On the first, I do not see any difference in this context between constitutionality and applicability: both relate to constitutional jurisdiction. In the first instance, a provision is ultra vires and must be set aside. In the second, a provision which is otherwise valid and applicable within the jurisdictional ambit of the legislature which adopted it, becomes inapplicable when it trenches on the field of jurisdiction of the other legislative power. Parliament has a perfect right to enact that the superintending and reforming power over federal agencies, acting in the administration of the laws of Canada, understood in the sense defined above, will be exercised exclusively by the Federal Court, a court created for the better administration of those laws. However, it cannot confer such an exclusive power on the Federal Court when what is involved is no longer the administration of a law of Canada, but the interpretation and application of the Constitution.

On the second point, it is difficult to see how, without making it into a pure question of procedure, the Superior Court is to retain its jurisdiction over declaratory judgments, which is admitted by appellants, but lose that jurisdiction when, instead of proceeding by a motion or action for a declaratory judgment, the party proceeds by way of evocation.

The appellants further relied on the privative clause contained in s. 122 of the Canada Labour Code:

122. (1).Subject to this Part, every order or decision of the Board is final and shall not be questioned or reviewed in any court, except in accordance with paragraph 28(1)(a) of the Federal Court Act.

(2) Except as permitted by subsection (1), no order, decision or proceeding of the Board made or carried on under or purporting to be made or carried on under this Part shall be

(a) questioned, reviewed, prohibited or restrained, or

(b) made the subject of any proceedings in or any process of any court, whether by way of injunction, certiorari, prohibition, quo warranto, or otherwise,

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on any ground, including the ground that the order, decision or proceeding is beyond the jurisdiction of the Board to make or carry on or that, in the course of any proceeding, the Board for any reason exceeded or lost its jurisdiction.

This privative clause applies to any court, appellants argued, and so applies equally to the Superior Court and the Federal Court.

So far as the Superior Court is concerned, in light of the decision in Law Society of British Columbia (supra), in my opinion it goes without saying that if Parliament lacks jurisdiction to exclude the superintending and reforming power of the Superior Court by application of s. 18 of the Federal Court Act, it also lacks jurisdiction to exclude it by the privative clause of s. 122.

I consider that neither s. 18 of the Federal Court Act nor s. 122 of the Canada Labour Code has the effect of superseding the superintending and reforming power of the Superior Court and its jurisdiction in evocation over the decision rendered in the case at bar by the Canada Labour Relations Board.

QUESTION TWO

Under sections 108 et seq. of the Canada Labour Code, the Board can exercise jurisdiction over respondents only to the extent that they constitute a federal work, undertaking or business. The expression “federal work, undertaking or business” is defined in s. 2 of the Code:

In this Act

“federal work, undertaking or business” means any work, undertaking or business that is within the legislative authority of the Parliament of Canada, including without restricting the generality of the foregoing:

…

(f) a radio broadcasting station;

Reviewing the applicable precedents and legal rules, Beetz J. wrote for the majority in Construction Montcalm Inc. v. Minimum Wage Commission, [1979] 1 S.C.R. 754, at pp. 768‑69:

The issue must be resolved in the light of established principles the first of which is that Parliament has no authority over labour relations as such nor over the

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terms of a contract of employment; exclusive provincial competence is the rule: Toronto Electric Commissioners v. Snider, [1925] A.C. 396. 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: In re the validity of the Industrial Relations and Disputes Investigations Act [1955] S.C.R. 529 (the Stevedoring case). It follows that primary federal competence over a given subject can prevent the application of provincial law relating to labour relations and the conditions of employment but only if it is demonstrated that federal authority over these matters is an integral element of such federal competence; thus, the regulation of wages to be paid by an undertaking, service or business, and the regulation of its labour relations, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one; In re the application of the Minimum Wage Act of Saskatchewan to an employee of a Revenue Post Office [1948] S.C.R. 248 (the Revenue Post Office case); Quebec Minimum Wage Commission v. Bell Telephone Company of Canada [1966] S.C.R. 767 (the Bell Telephone Minimum Wage case); Letter Carriers’ Union of Canada v. Canadian Union of Postal Workers [1975] 1 S.C.R. 178 (the Letter Carriers’ case). The question whether an undertaking, service or business is a federal one depends on the nature of its operation: Pigeon J. in Canada Labour Relations Board v. City of Yellowknife, [1977] 2 S.C.R. 729, at p. 736. But, in order to determine the nature of the operation, one must look at the normal or habitual activities of the business as those of “a going concern”, (Martland J. in the Bell Telephone Minimum Wage case at p. 772), without regard for exceptional or casual factors; otherwise, the Constitution could not be applied with any degree of continuity and regularity; Agence Maritime Inc. v. Canada Labour Relations Board [1969] S.C.R. 851 (the Agence Maritime case); the Letter Carriers’ case.

In that case it was held that the Minimum Wage Act, R.S.Q. 1964, c. 144, the Construction Industry Labour Relations Act, 1968 (Que.), c. 45, the Act respecting the Construction Industry, 1970 (Que.), c. 34, and the Orders in Council and ordinances passed under the authority of those Acts, applied to Construction Montcalm Inc., a

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building contractor which, under a contract with the federal government, built the runways at Mirabel International Airport.

In Northern Telecom (supra), Dickson J., at p. 132, summarizes the principles resulting from that case:

(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.

(3) Primary federal competence over a given subject can prevent the application of provincial law relating to labour relations and the conditions of employment but only if it is demonstrated that federal authority over these matters is an integral element of such federal competence.

(4) Thus, the regulation of wages to be paid by an undertaking, service or business, and the regulation of its labour relations, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one.

(5) The question whether an undertaking, service or business is a federal one depends on the nature of its operation.

(6) In order to determine the nature of the operation, one must look at the normal or habitual activities of the business as those of a “going concern”, without regard for exceptional or casual factors; otherwise, the Constitution could not be applied with any degree of continuity and regularity.

There is then the following passage, at pp. 132 and 133, which defines the method to be used in determining competence:

A recent decision of the British Columbia Labour Relations Board, Arrow Transfer Co. Ltd., [1974] 1 Can. L.R.B.R. 29, provides a useful statement of the method adopted by the courts in determining constitutional jurisdiction in labour matters. First, one must begin with the operation which is at the core of the

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federal undertaking. Then the courts look at the particular subsidiary operation engaged in by the employees in question. The court must then arrive at a judgment as to the relationship of that operation to the core federal undertaking, the necessary relationship being variously characterized as “vital”, “essential” or “integral”. As the Chairman of the Board phrased it, at pp. 34-5:

In each case 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.

What is the situation in the case at bar?

Under art. 847 C.C.P., at the stage of issuing the writ of evocation, “The judge to whom the motion is presented cannot authorize the issuance of a writ of summons unless he is of opinion that the facts alleged justify the conclusions sought”. The judge must rule on the law. [TRANSLATION] “It is not sufficient that the applicant’s arguments appear to him to be supported, he must come to the definite conclusion that they are, in his opinion, correct in law in light of the facts alleged.” (François Nolin Ltée v. Commission des relations de travail du Québec, [1968] S.C.R. 168, per Pigeon J. at p. 170).

To do this, the judge must take into consideration the allegations of the motion, which are taken as proven. He must also consider the facts alleged in the exhibits filed in support of the motion. (Oznaga v. Société d’exploitation des loteries et courses du Québec, [1981] 2 S.C.R. 113, at p. 119; Rabinovitch v. Chechik, [1929] S.C.R. 400, at p. 407, affirming on this point the Quebec Court of Appeal (1928), 45 Que. K.B. 129; Marquette Marketing Corp. v. Continental Insurance Co., [1977] C.A. 533). However, he should not take into account the facts which the Board found to have been established before it (Three Rivers Boatman Ltd. (supra) at p. 620).

In paragraphs (a) and (b) of para. (7) of the motion for a writ of evocation, it is alleged:

[TRANSLATION] (7.) On the said hearing days, the evidence established beyond any doubt:

(a) That as regards applicant Paul L’Anglais Inc.:

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1. its activities are limited to the commercial representation of various television stations, in particular for the sale of air time for advertising purposes;

2. it is not a broadcaster of programs and holds no licence for that purpose;

(b) That as regards applicant J.P.L. Productions Inc.:

1. its activities are limited to the production of commercials and audio-visual programs;

2. it does not broadcast programs or commercials, and holds no licence for that purpose;

3. the commercials and audio-visual programs it produces are the property of its customers and it is they who determine how they are used (that is, their broadcasting or other use);

Respondents filed in support of their motion Exhibit R-4, a letter from their counsel to the Board dated July 8, 1977, for the purpose of formulating their objection to the latter’s jurisdiction. It reads, inter alia:

[TRANSLATION] Paul L’Anglais Inc. sells air time not only for CFTM-TV, Channel 10… but also for five other television stations, which are CFCM-TV Quebec City, CFPM-TV Chicoutimi, CHLT-TV Sherbrooke, CHEM-TV Trois-Rivières and CHAU-TV Carleton, and for all the TVA network;…

The letter goes on:

[TRANSLATION] In addition to the sale of air time, Paul L’Anglais Inc. also in some cases handles the sale of production both for CFTM-TV and for other television stations which have no affiliation with CFTM-TV Channel 10 in Montreal:…

J.P.L. Productions Inc., the letter continues,

[TRANSLATION]… is… essentially a production undertaking but… in no way is it exclusively for CFTM-TV, since J.P.L. Productions Inc. produces commercials for institutional and private bodies as well as documentaries for the same customers; in addition, this company has obtained the contract to produce certain educational programs to be televised by the Quebec Department of Education.

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Still with regard to this latter company, the letter further states:

[TRANSLATION] With regard to J.P.L. Productions Inc., as its name indicates, the essential purpose of this company is the production of audio-visual programs, sound tracks for televised series, and programs for various institutional or private bodies: several of these productions are not even intended to be televised.

J.P.L. Productions has a variety of customers, ranging from CFTM-TV through the Quebec Department of Education to Radio-Canada, and including various private companies.

Bearing these facts in mind, I turn to the three stages of the method suggested by Dickson J. in Northern Telecom (supra), in reliance on Arrow Transfer Co. (supra).

It is established that Télé-Métropole Inc., which operates CFTM-TV Channel 10, is a television broadcasting undertaking, and as such a federal work, undertaking or business over which the Board has jurisdiction. That disposes of the operation which is at the core of the federal undertaking.

Turning to the second stage, examining the nature of respondents’ respective operations, I think it is sufficient to refer to the legislative definitions of “broadcasting” and of “radiocommunication” to see that the sale of time for sponsored programs and the production of programs and commercial messages broadcast by other persons are not activities falling within this field of federal jurisdiction. These definitions are to be found in s. 2 of the Broadcasting Act, R.S.C. 1970, c. B-11:

“broadcasting” means any radiocommunication in which the transmissions are intended for direct reception by the general public;

“radiocommunication” means any transmission, emission or reception of signs, signals, writing, images, sounds or intelligence of any nature by means of electromagnetic waves of frequencies lower than 3,000 Gigacycles per second propagated in space without artificial guide;

Neither of the two respondents is concerned with the transmission, emission or reception of

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signs, signals, writing, images, sounds or intelligence.

Finally, the third stage: in my opinion the facts alleged do not show a “vital”, “essential” or “integral” relationship between the operation of Télé-Métropole Inc. and those of its subsidiaries.

It was admitted that respondents are subsidiaries of Télé-Métropole, which is their principal, though not their sole, customer, that the boards of directors of the three companies have certain directors in common and that various services are shared.

The sales which are made by respondents’ employees and the programs they produce serve Télé-Métropole. The activities of respondents’ employees are conducted on a continuous and regular basis. These facts do not necessarily create the requisite relationship between the respective operations of the businesses. A television broadcasting undertaking may well sell no sponsored air time and produce no programs, yet remain a television broadcasting undertaking. Conversely, an undertaking may sell sponsored air time for another or produce programs which it sells to another undertaking without thereby becoming a television broadcasting undertaking.

It may be asked whether these activities would fall within the field of television broadcasting if they had been undertaken by companies completely unrelated to the parent company. I think the answer to this question is clearly no. Selling sponsored air time and producing programs and commercial messages does not make the seller or producer a television broadcaster. Furthermore, these activities are not indispensable to the Télé-Métropole Inc. operation.

The Attorney General of Quebec wrote, correctly in my view:

[TRANSLATION] In the case at bar we do not contend that no relationship existed between the activities of Télé-Métropole Inc. and those of Paul L’Anglais and J.P.L. Productions Inc., or that the fact that a television broadcasting station has its air time sales company or production company does not constitute a benefit to its operations. We are simply saying that these links with a television broadcasting undertaking do not have the

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effect of making the undertaking which produces the programs and the undertaking which sells air time component parts of the television broadcasting in all respects. We argue that Paul L’Anglais Inc. and J.P.L. Productions Inc. are not engaged in television broadcasting, but rather in the sale in the one case, and production in the other, of television programming.

Assuming the facts alleged to be proven, and of course evidence of them will have to be presented at the hearing, I am of the view that the conclusions sought are justified and that the Court of Appeal properly authorized the writ of evocation to be issued.

The appeals should be dismissed with costs in favour of respondents and against appellants.

Appeals dismissed with costs.

Solicitors for the appellant and mis en cause the Canada Labour Relations Board: Martineau, Walker, Montreal.

Solicitor for the appellant and mis en cause the Attorney General of Canada: Gaspard Côté, Montreal.

Solicitors for the appellant and mis en cause the Canadian Union of Public Employees: Trudel, Nadeau, Lesage, Cleary & Mènard, Montreal.

Solicitors for the respondents: Heenan, Blaikie, Jolin, Potvin, Trépanier, Cobbett, Montreal.

Solicitors for the mis en cause the Attorney General of Quebec: Boissonneault, Roy & Poulin, Montreal; Jean-K. Samson and Odette Laverdière, Ste-Foy.

Solicitor for the intervener the Attorney General for New Brunswick: William A. Anderson, Fredericton.

Solicitors for the intervener the Attorney General for Alberta: Gowling & Henderson, Ottawa.