Date: 20010406
Docket: A-48-00
Neutral citation: 2001 FCA 109
CORAM: ISAAC J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
AUGUSTINE'S SCHOOL BUS INC.
Appellant
- and -
ANGELA ASHER, PIERRETTE BEACH, JENNIFER BECK, WILLIAM BOYD,
PEARL DECOSTE, KIM DUCHARME, MARY DYCK, ED GIVEN, MARILYN GIVEN, LINDA BRANT, DIANA GUITAR, JEANNE HAGGERTY, PENNY-ANN KRANZ, RHEA LANDRY, MARGARET MANWARING, DIANA MATTIE, EDWARD MOONEY, VIOLA R. MOONEY, CAROL PROVENCAL, HOWARD PAGE, RUTH SAVOIE, YVONNE SODTKA, AUDREY SMITH, LES SMITH, ALLISON ST. PIERRE, DONNA TAYLOR, FRED TAYLOR, CAROL THOMPSON, CHARLENE WARD AND MARLENE WEEGAR
Respondents
Heard at Toronto, Ontario, Friday, April 6, 2001
Judgment delivered from the Bench at Toronto, Ontario,
on Friday, April 6, 2001
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Date: 20010406
Docket: A-48-00
Neutral citation: 2001 FCA 109
CORAM: ISAAC J.A.
SEXTON J.A.
SHARLOW J.A.
BETWEEN:
AUGUSTINE'S SCHOOL BUS INC.
Appellant
- and -
ANGELA ASHER, PIERRETTE BEACH, JENNIFER BECK, WILLIAM BOYD,
PEARL DECOSTE, KIM DUCHARME, MARY DYCK, ED GIVEN, MARILYN GIVEN, LINDA BRANT, DIANA GUITAR, JEANNE HAGGERTY, PENNY-ANN KRANZ, RHEA LANDRY, MARGARET MANWARING, DIANA MATTIE, EDWARD MOONEY, VIOLA R. MOONEY, CAROL PROVENCAL, HOWARD PAGE, RUTH SAVOIE, YVONNE SODTKA, AUDREY SMITH, LES SMITH, ALLISON ST. PIERRE, DONNA TAYLOR, FRED TAYLOR, CAROL THOMPSON, CHARLENE WARD AND MARLENE WEEGAR
Respondents
REASONS FOR JUDGMENT
SEXTON J.A.
The Appellant operated a school bus line. The Respondents, who were employees of the Appellant, made a complaint under the Canada Labour Code that they had not been paid their wages. An Inspector from Human Resources Development Canada ordered the Appellant to pay and the Appellant's appeal to an experienced Labour Relations Arbitrator, sitting as a Referee appointed pursuant to the Canada Labour Code was dismissed.
The Appellant appealed the Referee's decision to the Trial Division of this Court which dismissed the appeal.
The Appellant throughout has maintained that its business did not fall under the Canada Labour Code because it properly was governed by the law of the Province of Ontario.
It is not contested that labour relations is a subject falling within provincial jurisdiction as an aspect of property and civil rights within the meaning of subsection 92(13) of the Constitution Act, 1867, but that by reason of paragraph 92(10)a. of the Act, there is an exception to provincial jurisdiction over "local works and undertakings" conferred by section 92 if a particular transportation undertaking extends beyond the limits of the province. In that event, jurisdiction lies with the Federal Government.
Paragraph 92.10.a., subsection 92.13. of the Constitution Act, 1867 read as follows:
92. In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next herein after 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 or Civil Rights in the Province.
The Appellant's primary business consisted of bussing children to and from school within Ontario. However, the Appellant also operated a charter service in which it carried people to destinations in the United States ("U.S.") as well as Ontario. In order to do this, the Appellant had acquired an X-licence to permit extra-provincial trips into the U.S. and purchased a bus specially equipped for the purpose of the charter business.
The Appellant argued that because its charter trips outside Ontario constituted only 1/10% of its total business, that its undertaking did not extend beyond the limits of the Province of Ontario and that as a result the Federal Government had no jurisdiction over its undertaking. Hence the Canada Labour Code had no application to it.
In dismissing the appeal, both the Referee and Campbell J. in determining whether the Appellant's undertaking extended beyond the limits of the Province, considered whether the extra-provincial activity undertaken by the Appellant was continuous and regular.
On the appeal, both parties agreed that this is the proper test.
The Referee's conclusion was that the Appellant's extra-provincial activity was continuous and regular. In so doing, he considered a number of factors. They were that:
1) Customers of the Appellant were provided with extra-provincial service consistently and without interruption whenever requests were made for such service subject to availability of equipment and personnel. The Appellant had provided 133 charter trips into the U.S.
2) The Appellant stood ready at any time to engage in extra-provincial trips at the instance of a customer.
3) The Appellant had obtained an extra-provincial license.
4) The Appellant had purchased a specially equipped bus for the charter service.
These are factors recognized in the jurisprudence as being properly considered. See Agence Maritime Inc. v. Canada Labour Relations Board et al. (1969) 12 D.L.R. (3d) 722 at 727, ReOttawa-Carleton Regional Transit Commission and Amalgamated Transit Union Local 279 et al. (1983) 44 O.R. (2d) 560 (C.A.); Re Tank Truck Transport Ltd. (1960) 25 D.L.R. (2d) 161 (H.C.J.) affirmed on appeal (1963) 36 D.L.R. (2d) 636 (C.A.); and Regina v. Cooksville Magistrate's Court, Ex parte Liquid Cargo Lines Ltd. (1964) 46 D.L.R. (2d) 700 (H.C.J.).
The Motions Judge agreed with the Referee's conclusion that the Appellant's extra-provincial service was continuous and regular.
We are of the view that both the Referee and the Motions Judge applied the proper test and we are unable to disagree with their finding that the Appellant's extra-provincial service was both continuous and regular.
The appeal will, therefore, be dismissed with costs.
"J. E. Sexton"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-48-00
STYLE OF CAUSE: AUGUSTINE'S SCHOOL BUS INC.
Appellant
- and -
ANGELA ASHER, PIERRETTE BEACH, JENNIFER BECK, WILLIAM BOYD, PEARL DECOSTE, KIM DUCHARME, MARY DYCK, ED GIVEN, MARILYN GIVEN, LINDA BRANT, DIANA GUITAR, JEANNE HAGGERTY, PENNY-ANN KRANZ, RHEA LANDRY, MARGARET MANWARING, DIANA MATTIE, EDWARD MOONEY, VIOLA R. MOONEY, CAROL PROVENCAL, HOWARD PAGE, RUTH SAVOIE, YVONNE SODTKA, AUDREY SMITH, LES SMITH, ALLISON ST. PIERRE, DONNA TAYLOR, FRED TAYLOR, CAROL THOMPSON, CHARLENE WARD AND MARLENE WEEGAR
Respondents
DATE OF HEARING: FRIDAY, APRIL 6, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
OF THE COURT BY: SEXTON J.A.
DATED: FRIDAY, APRIL 6, 2001
APPEARANCES: Mr. Robert B. Reid
Ms. Lianne Standryk
For the Appellant
Mr. John B. Lang
For the Respondents
SOLICITORS OF RECORD: Lancaster, Mix & Welch
Barristers & Solicitors
800-55 King Street
PO Box 790, Stn. Main
St. Catherines, Ontario
L2R 6Z1
For the Appellant
CAW - Canada
Legal Department
205 Placer Court
Toronto, Ontario
M2H 3H9
For the Respondents
FEDERAL COURT OF APPEAL
Date: 20010406
Docket: A-48-00
BETWEEN:
AUGUSTINE'S SCHOOL BUS INC.
Appellant
- and -
ANGELA ASHER, PIERRETTE BEACH, JENNIFER BECK, WILLIAM BOYD, PEARL DECOSTE, KIM DUCHARME, MARY DYCK, ED GIVEN, MARILYN GIVEN, LINDA BRANT, DIANA GUITAR, JEANNE HAGGERTY, PENNY-ANN KRANZ, RHEA LANDRY, MARGARET MANWARING, DIANA MATTIE, EDWARD MOONEY, VIOLA R. MOONEY, CAROL PROVENCAL, HOWARD PAGE, RUTH SAVOIE, YVONNE SODTKA, AUDREY SMITH, LES SMITH, ALLISON ST. PIERRE, DONNA TAYLOR, FRED TAYLOR, CAROL THOMPSON, CHARLENE WARD AND MARLENE WEEGAR
Respondents
REASONS FOR JUDGMENT
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