Date: 20060525
Docket: A-399-05
Citation: 2006 FCA 193
CORAM: RICHARD C.J.
NADON J.A.
PELLETIER J.A.
BETWEEN:
J.D. IRVING, LIMITED
Applicant
and
GENERAL LONGSHORE WORKERS, CHECKERS, AND SHIPLINERS
OF THE PORT OF SAINT-JOHN, N.B., LOCAL 273 OF THE INTERNATIONAL LONGSHOREMEN'S ASSOCIATION and PORT OF SAINT JOHN EMPLOYERS ASSOCIATION, INC.
Respondents
REASONS FOR JUDGMENT
RICHARD C.J.
Nature of the Proceeding
[1] This is an application for judicial review pursuant to section 28 of the Federal Courts Act, of a decision of the CIRB (the Board) dated August 15, 2005 in Board File: 22323-C made under the Canada Labour Code, R.S. 1985, c. L-2 (the Code).
[2] J.D. Irving challenged the Board's jurisdiction to proceed with unresolved issues following an earlier finding by the Board that since J.D. Irving had extended operations in the Port of Saint John to conduct longshoring work, such operations were covered by an existing certification order.
History of the proceedings
[3] On July 10, 2001, the International Longshoremen's Association (the ILA) filed an application pursuant to sections 18 and 34 of the Code alleging that the Board declare that J.D. Irving was engaged in longshoring activities at Pier 20 of the Port of Saint John.
[4] In a decision dated January 21, 2002, the Board decided that the operations of J.D. Irving at Pier 20 were within the scope of the previous geographical certification order issued by the Board.
[5] J.D. Irving brought an application for judicial review of that decision and the Federal Court of Appeal in a judgment dated June 13, 2003, and reported in [2003] 4 F.C. 1080, dismissed the application for judicial review.
[6] Mr. Justice Rothstein, speaking for the majority, found that the Board's decision was not patently unreasonable.
[7] The application by J.D. Irving for leave to appeal to the Supreme Court of Canada from the judgment of the Federal Court of Appeal was dismissed on February 26, 2004.
[8] The application for leave raised for the first time the issue of whether the employees were employed upon or in connection with a federal work, undertaking or business.
[9] In its decision of January 21, 2002, the Board remained seized of any issue of remedy and accordingly, on July 16, 2003, the ILA requested the Board to resolve the issue of remedy.
[10] On June 9, 2004, J.D. Irving advised the Board that it had not yet made a determination that the subject operations of J.D. Irving fell within federal jurisdiction.
[11] The Board, over the objection of the ILA which claimed abuse of process, gave the parties an opportunity to file written submissions and adjourned the remedy hearing until a decision or the challenge to the constitutional jurisdiction of the Board was issued.
[12] In its decision dated August 15, 2005, which is the subject of the present judicial review application, the Board confirmed that the unloading of wood chips at Pier 20 is longshoring work, is integrally connected to marine transportation of J.D. Irving's product to an end customer and therefore falls within federal jurisdiction.
Issues
[13] The applicant submits that it operates a provincially regulated forest products undertaking, which is not in dispute. What is in dispute is whether J.D. Irving also operates a marine transportation undertaking.
[14] The respondent also raises the issue of abuse of process on the ground that this application for judicial review is an attempt to have this Court reconsider and reconstruct the Board's factual analysis.
Standard of Review
[15] Counsel for the applicant claims that the test of patent unreasonableness only applies to the Board's interpretation of its own statute such as section 34. Counsel asserts that the test of correctness must be applied where there is a constitutional issue, whether it be a division of power or a Charter ground.
[16] Counsel for the respondent asserts that there should be deference to the Board in cases where the constitutional issue before the Board is one of jurisdiction. Counsel suggests that the standard should be no higher than reasonableness where the issue is one of division of powers.
[17] As stated by Mr. Justice Rothstein, then of the Federal Court of Appeal, in Halifax Longshoremen's Association, Local 269 v. Offshore Logistics Inc.:
[15] The question in this case is whether the work of the Offshore employees at the Mobil dock should be considered longshoring. Application of the Board's jurisdiction under section 34 of the Code will depend on this determination. In a sense, therefore, the question might be viewed as jurisdictional. On the other hand, every time a board makes a positive decision which involves the exercise of its jurisdiction, its decision might be branded as jurisdictional.
[17] Although interpretation of the term longshoring is involved, the Board's determination as to whether work is longshoring is largely based on facts and circumstances of a given case. Its determination in this case does not involve the establishment of a highly generalized proposition of law about the meaning of longshoring in section 34 that might be more appropriately assigned to the Courts.
[18] I am therefore satisfied that the question of whether the work of Offshore employees at the Mobil dock is or is not longshoring is one that Parliament intended be left to the Board, even though such determination affects whether section 34 of the Code applies. Because of the presence of a privative clause and having regard to the expertise of the Board, the reasonableness simpliciter standard is not applicable. The standard of review is patent unreasonableness.
[18] Mr. Justice Rothstein also found that in the case of the Board there is a broad privative clause and it has been found that the Board is a highly specialized type of administrative tribunal and that its members are experts in administering comprehensive labour statutes. He wrote that the question of whether work is or is not longshoring has been dealt with by the Board on a number of occasions and it has experience and expertise in deciding whether work is longshoring in any given case.
Analysis
[19] The Federal Court of Appeal found the initial decision of the Board that the operations constituted longshoring even though the business did not relate to general commercial shipping and, specifically, did not involve unloading for others for remuneration or unloading from commercial vessels was not patently unreasonable [at para. 33].
[20] In that decision, the Federal Court of Appeal also noted that it had not been suggested that the factual findings of the Board are inaccurate.
[21] In this case, the Board's determination was largely factual and on consideration of the facts, which were not in dispute, the applicant's activities were found to constitute longshoring.
[22] The Board adopted a pragmatic approach to the categorization of longshoring based upon the facts presented to the Board, made the following factual findings and reaffirmed its earlier decision that J.D. Irving was engaged in longshoring work.
a. In J.D. Irving's circumstances, the unloading activity is unrelated and not functionally integrated with the manufacture or processing of wood chips and cannot reasonably be viewed as merely ancillary to its manufacturing and processing operations. As indicated, J.D. Irving's decision to hire its subsidiary, Atlantic Towing, to provide the marine transportation for a portion of the delivery route of the wood chips to a customer constituted a distinct activity of marine transportation severable from the parent company's wood chip manufacturing and processing operations.
b. Moreover, the unloading at the Port of Saint John was a necessary component to complete the marine transportation of the manufactured or processed product to Irving Pulp and Paper, Limited.
c. The marine transportation is clearly severable from J.D. Irving's wood chip operations under either conclusion.
d. The activity of J.D. Irving's employees involved the unloading of an ocean-going vessel which had transported wood chip product across the Bay of Fundy between two provinces. This activity was distinct and severable from the primary sawmill operations and constituted marine transportation, an activity under federal jurisdiction pursuant to section 92(10)(a) of the Constitution Act, 1867.
[23] Given the Board's initial finding that J.D. Irving was engaged in longshoring work at the Port of Saint John, a finding which was maintained by the Federal Court of Appeal, the applicant cannot now challenge that finding by means of a collateral attack on the Board's latest reaffirmation of that finding.
[24] In other words this panel of the Court cannot disturb the earlier finding of the Court upholding the decision of the Board that the activity constituted longshoring work and that, by nature, it is an integral component of the marine transportation [[2002] CCRI no 153 at para. 35].
[25] The Canada Labour Code applies "in respect of employees who are employed on or in connection with the operation of any federal work, undertaking or business". A "federal work, undertaking or business" is "any work, undertaking or business that is within the legislative authority of Parliament". This includes "a work, undertaking or business operated or carried on for or in connection with navigation and shipping... including the operation of ships and transportation by ship anywhere in Canada" and "a line of ships connecting a province with any other province". These statutory words are co-extensive with the text in the Constitution Act, 1867. The Canada Labour Code does not apply to provincial undertakings. Board certifications and Board decisions do not apply to provincial undertakings.
[26] Having made the findings which cannot now be disputed that the activity carried on by the applicant's employees constitute longshoring work and that, by nature, it is an integral component of the marine transportation, the Board was clearly entitled to conclude that such activity came within the legislative power of Parliament under the heading of navigation and shipping and was therefore a federal work.
[27] For these reasons the application for judicial review will be dismissed with costs paid by the applicant to the respondent Local 273 of the International Longshoremen's Association.
"J. Richard"
"I agree
M. Nadon J.A."
"I agree
J.D.Denis Pelletier"
Email this Content