T-2437-74
British Columbia Packers Limited, Nelson Bros.
Fisheries Ltd., The Canadian Fishing Company
Limited, Queen Charlotte Fisheries Limited,
Tofino Fisheries Ltd., Seafood Products Limited,
J.S. McMillan Fisheries Ltd., Norpac Fisheries
Ltd., The Cassiar Packing Co. Ltd., Babcock
Fisheries Ltd., Francis Millerd & Co. Ltd., Ocean
Fisheries Ltd. (Applicants)
v.
Canada Labour Relations Board and British
Columbia Provincial Council, United Fishermen
and Allied Workers' Union (Respondents)
and
Native Brotherhood of British Columbia, Fishing
Vessel Owners Association of British Columbia,
Pacific Trollers Association, Attorney General of
British Columbia, Attorney General of New-
foundland, Attorney General of Nova Scotia
(Interveners)
Trial Division, Addy J.—Vancouver, October
15; Ottawa, November 8, 1974.
Jurisdiction—Application for prohibition—Union seeking
certification as bargaining agent for fishermen—No power of
certification in Canada Labour Relations Board—Prohibi-
tion granted against Board—Canada Labour Code, R.S.C.
1970, c. L-1, s. 2 and ss. 107, 108, 122 rep. and sub. S.C.
1972, c. 18, s. 1—Industrial Relations and Disputes Investi
gation Act, R.S.C. 1952, c. 152, s. 53—B.N.A. Act, s.
91(2),(10),(12),(24), s. 92(13)—King's Proclamation of
1763, R.S.C. 1970, App. II, p. 123—Federal Court Act, ss.
18, 28.
The applicants were engaged in the business of processing
fish for sale to outlets within and outside the Province of
British Columbia. They procured fish under contracts made
in the province with the captains, crews and owners of
fishing vessels. The fishing was carried on inside and out
side of provincial territorial waters. The respondent union
applied to the Canada Labour Relations Board for certifica
tion as bargaining agent for the crews of the vessels of
which the captains, crews and owners entered into special
arrangements with the applicants, when a fishing boat
returned to port. The interveners, the Fishing Vessel
Owners Association of British Columbia and the Pacific
Trollers Association, were associations representing
independent boat owners or crews selling fish to various
processors without any special arrangements. They were not
involved in the certification but supported the position of
the applicants. On a section 28 application for review of the
Board's jurisdiction, the Court of Appeal had held ([1973]
F.C. 1194) that the Board's decision to hear the application
was not the type of decision reviewable under section
122(1) of the Canada Labour Code, at least until the Board
had rendered the decision which it was specifically author
ized to render, that is, whether the union was to be certified
or not. The Board failed to act on the Court's suggestion
that it raise the question before the Court, under section
28(4) of the Federal Court Act. The applicants then brought
the present application, by way of originating notice of
motion, for prohibition against the Board.
Held, ordering issue of a writ of prohibition, the Court had
jurisdiction to entertain the application, under section 18(a)
of the Federal Court Act. The respondent Board was "a
federal board, commission or tribunal" against which relief
might be claimed under section 18(b) of the Act. The
privative clause contained in section 122(2) of the Canada
Labour Code was ineffective to bar the remedy where the
application was based on a complete lack of jurisdiction in
the inferior tribunal. The inferior tribunal here had no juris
diction because the labour contract governing the fishermen
was in substance a method of securing rights within the
province. It fell under the ambit of provincial power over
"property and civil rights in the province" in section 92(13)
of the British North America Act, and not under the various
powers assigned to Canada by section 91 of the British
North America Act or the treaty-making power. There was
no ground for applying the power of Parliament over Indians
in section 91(24) of the British North America Act, as urged
by the interveners, the Native Brotherhood of British
Columbia; the factor of Indian presence among the fishing
crews could not give Parliament power to control labour
relations in the circumstances. Even if the Canada Labour
Code, Part V, were within the powers of Parliament, that
Act, by its very terms, was inapplicable to the present
situation. "Federal work, undertaking or business" was
defined in section 2 of the Canada Labour Code as "any
work, undertaking or business that is within the legislative
authority of the Parliament of Canada." The fishermen here
could not be described as employed "upon or in connection
with the operation of any work, undertaking or business"
within section 108 of the Canada Labour Code.
Attorney General of Canada v. Cylien [1973] F.C. 1166;
MacDonald v. Vapor Canada Ltd. [1972] F.C. 1156;
Workmen's Compensation Board v. Canadian Pacific
Railway Company [1920] A.C. 184; The Queen v. Rob-
ertson (1882) 6 S.C.R. 52; In the Matter of Jurisdiction
over Provincial Fisheries (1896-7) 26 S.C.R. 444; A.-G.
Canada v. A.-G. Ontario, Quebec and Nova Scotia
[1898] A.C. 700; A.-G. Canada v. A.-G. British
Columbia [1930] A.C. 111 and A.-G. Canada v. A.-G.
Ontario [1937] A.C. 326, followed. Citizens Insurance
Company of Canada v. Parsons (1881-82) 7 App. Cas.
96; Re Natural Products Marketing Act, 1934 and its
Amending Act, 1935, [1936] S.C.R. 398; A.-G. Canada
v. A.-G. Alberta and A.-G. British Columbia [1916] I
A.C. 588; The King v. Eastern Terminal Elevator Com
pany [1925] S.C.R. 434; Toronto Electric Commission
ers v. Snider [1925] A.C. 396; Reference re Validity of
Industrial Relations and Disputes Investigation Act
(Can.) [1955] S.C.R. 529; Paquet v. Corporation of
Pilots for and below the Harbour of Quebec [1920] A.C.
1029; City of Montreal v. Harbour Commissioners of
Montreal [1926] A.C. 299 and Underwater Gas De
velopers Ltd. v. Ontario Labour Relations Board (1960)
24 D.L.R. (2d) 673, applied. Mark Fishing Co. Ltd. v.
United Fishermen and Allied Workers' Union [1972] 3
W.W.R. 641 and Calder v. A.-G. British Columbia
[1973] S.C.R. 313, agreed with.
APPLICATION.
COUNSEL:
W. G. Burke-Robertson, Q.C., and G. S.
Levey for applicants.
Paul D. K. Fraser for Pacific Trollers
Association.
William K. Hanlin for Fishing Vessel
Owners of B.C.
S. R. Chamberlain for United Fishermen
and Allied Workers Union.
Norman Mullins, Q.C., for Canada Labour
Relations Board and Attorney General of
Canada.
Donald R. Munroe for Native Brotherhood
of B.C.
Norman J. Prelypchan for Attorney Gener
al of British Columbia, Attorney General of
Newfoundland and Attorney General of
Nova Scotia.
SOLICITORS:
Levey, Samuels and Glasner, Vancouver,
for applicants.
Fraser, Hyndman, Vancouver, for Pacific
Trollers Association.
Owen, Bird, Vancouver, for Fishing Vessel
Owners Association of B.C.
Rankin, Robertson, Giusti, Chamberlain
and Donald, Vancouver, for B.C. Provin
cial Council United Fishermen and Allied
Workers Union.
Deputy Attorney General of Canada for
Canada Labour Relations Board and Attor
ney General of Canada.
Munroe, Fraser & Co., Vancouver, for
Native Brotherhood of B.C.
Legal Branch, Attorney General of B.C,
Victoria, for Attorney General of British
Columbia, Attorney General of Newfound-
land and Attorney General of Nova Scotia.
The following are the reasons for judgment
delivered in English by
ADDY J.: This is an application for a writ of
prohibition to restrain the respondent Board
from proceeding with the applications for cer
tification made before it by the respondent
Union to be appointed official bargaining agent
for the crews of the fishing vessels who sell fish
to each of the applicants.
The applicants (hereinafter referred to as "the
processors") are firms engaged in the business
of procuring various types of fish by means of
purchases and also by special arrangements
with the captains, crews and owners of fishing
vessels. The processors then process and pack
the fish and sell it to outlets both inside and
outside of the Province of British Columbia.
The respondent Union has applied in the case
of each of the processors to the respondent
Board for certification as official bargaining
agent for the crews of the fishing vessels, whose
owners, captains and crews enter into special
arrangements for the sharing of the selling price
of each catch with each of the processor pur
chasers when a fishing boat returns to port.
The first three interveners named in the style
of cause were authorized to take part in the
proceedings as such by order of my brother
Walsh J., dated the 9th of September, 1974. The
last three-named interveners, namely, the Attor
neys General for British Columbia, Newfound-
land and Nova Scotia were, by the aforesaid
order, authorized to intervene if they so desired.
At the hearing before me, their counsel stated
that for the moment he did not have any instruc
tions to take an active part in the hearing but
wished to be present as an observer. He also
stated that, in view of the important constitu-
tional problems involved, his instructions were
that he was to preserve his clients' rights to
intervene at any time including any possible
subsequent appeal, should they deem it advis
able. Under the circumstances, in order to
ensure that this right would be preserved, I
ordered them included in the style of cause as
interveners. As it turned out, they did not in fact
take any active part in the proceedings before
me but merely maintained their role as
observers.
The invervener, Native Brotherhood of Brit-
ish Columbia (hereinafter referred to as "the
Native Brotherhood") is an association repre
senting approximately one thousand native Indi-
ans who form a good proportion of the crews of
fishing vessels involved in the application for
certification of the respondent Union. Some
members of the Native Brotherhood are reserve
Indians, others are not and others are also
enfranchised Indians. There was no indication
in the evidence of the relative proportion of
these three groups constituting the Native
Brotherhood or actually engaged in the fishing
industry. It appears that in the case of Indians,
they sometimes form part of the crew of a
fishing vessel operated as a family enterprise
and at other times are merely members of the
crews of other fishing vessels with mixed crews.
The Native Brotherhood, at the hearing,
opposed the application, adopted the arguments
advanced on behalf of the respondents and also
advanced other arguments based on the special
status and rights of its members as native
Indians.
The other two interveners, namely, the Fish
ing Vessel Owners Association of British
Columbia and the Pacific Trollers Association
are associations representing independent boat
owners or members of crews having an owner
ship interest in fishing vessels who, generally
speaking, simply sell each catch to the various
fish processors without any special arrangement
with them as to an accounting or the sharing of
profits or losses of each catch. They are not
involved in the applications for certification
made by the respondent Union before the
respondent Board but are interested in the out
come of the proceedings, having regard to the
possibility of future action or legislation in this
area. They supported the application for prohi
bition and adopted entirely the position taken
and the grounds advanced by the processors.
The facts are relatively simple and are undis
puted. They are contained almost entirely in the
affidavit of one K.M. Campbell, filed on the
present motion on behalf of the processors.
Generally speaking, the latter purchase fish
from the fishermen on the basis of either writ
ten or oral agreements under which provision is
made for the payment to the fishermen of a
percentage of the proceeds from the purchase
of each catch which is delivered to the agents or
servants of the processors, where it is pur
chased by one of the processors. Each proces
sor provides a settlement accounting service
under which an accounting is made for each
catch to the boat owner and crew of the fishing
vessel.
From the gross proceeds of the sale of the
catch, termed the "gross stock," certain agreed
upon operating costs are first deducted. From
the balance, a percentage share known as the
"boat share" is credited to the owner of the
boat. At times, the boat is owned by the captain
or partly by the captain and the members of his
crew or by other persons not members of the
crew and including at times the processors
themselves. Although it is not mentioned in the
affidavit in support of the motion, this fact was
fully conceded by all parties and appears from
the proceedings before the Board. In any event,
the "boat share" goes to the owner or owners,
whoever he or they may be.
From the remainder of the proceeds of the
catch, known in the industry as the "net stock
credit," certain other costs, such as the cost of
food for the crew and other crew personnel
expenses incurred on the trip are deducted. The
remaining balance is divided among the crew
including the captain in accordance with previ
ously agreed-upon shares. Where the owner or
part-owner is part of the crew as captain or
otherwise he also gets a share as such, in addi
tion to the "boat share".
Where the catch is poor, resulting in a loss on
the trip (referred to as a "hole trip") the loss is
charged to the owner and crew in the same ratio
as the "net stock credit" would have been
shared. A full accounting of the above is made
for each catch, to each member of the crew, by
the processor, as purchaser.
The contracts, oral or written, covering the
purchase of fish by the processors from the
fishermen, delineate the minimum prices to be
paid for the fish and the manner and means of
the division of the "gross stock proceeds." All
purchases made by the processors are made in
the Province of British Columbia.
From the voluminous transcript of the pro
ceedings before the respondent Board, which
proceedings were as a matter of course forward
ed by it to this Court as a result of the present
application, only two additional facts appear to
have any bearing on the issue raised on this
motion. These were the only additional facts
referred to by counsel in argument and it will be
more convenient to mention them when dealing
with the specific arguments on which these
facts have a bearing.
The applicants base their request for prohibi
tion on two grounds, namely: that certain here-
inafter referred to provisions of the Canada
Labour Code' (Part V) are ultra vires the Parlia
ment of Canada and, alternatively, if not ultra
vires, that by the terms of the Canada Labour
Code itself, they are not applicable to the
processors in the circumstances of the present
case.
As to this Court's jurisdiction to hear the
present application for a writ of prohibition, the
basic jurisdiction is provided for in section
18(a) of the Federal Court Act and the respond
ent Board would be necessarily included in the
expression "a federal board, commission or
other tribunal" against whom relief may be
claimed under section 18(b) of the said Act.
R.S.C. 1970, c. L-1 as amended by S.C. 1972, c. 18, s. 1.
Although specifically invited by me to do so,
none of the respondents and none of the inter-
veners were willing to argue that section 122(2)
of the Canada Labour Code constituted in any
way a bar to the general power of this Court to
grant the relief requested by the applicants and
all counsel seemed to agree, at least tacitly, that
this Court did have jurisdiction. But since con
sent cannot grant jurisdiction and especially in
view of the fact that, in a previous application
for review under section 28(1) of the Federal
Court Act in this very case ([1973] F.C. 1194),
the Court of Appeal specifically declared that it
was refraining from expressing an opinion as to
whether section 122(2) would constitute such a
bar, I feel that it is my duty in the present case
to not only raise the problem but to deal with it,
albeit in a summary fashion.
The Honourable Mr. Justice Thurlow in deliv
ering the decision of the Court in the above-
mentioned review under section 28(1) of the
Federal Court Act, on the 7th of December,
1973, stated as follows [at page 11981:
We express no opinion as to whether section 122(2) has any
application to prevent proceedings in a case where the
Board purports to exercise jurisdiction that has not been
conferred on it.
The Court of Appeal, relying on its previous
decision in the case of Attorney General of
Canada v. Cylien 2 , decided that the ruling or
decision of the Board to the effect that it had
jurisdiction to hear the application for certifica
tion was not the type of decision or ruling which
was reviewable under section 122(1) at least
until the Board had rendered the decision which
it was specifically authorized to render, that is,
whether the Union was to be certified or not.
The Court of Appeal then suggested that the
most expeditious way for the question to be
raised before it was for the Board to refer the
question directly to it pursuant to section 28(4)
of the Federal Court Act. The Board, for rea
sons unknown to me, did not see fit to so refer
the matter and the present application was
z [1973] F.C. 1166.
brought before me by the processors by way of
originating notice of motion.
Section 122(2) of the Canada Labour Code
reads as follows:
(2) Subject to subsection (1), no order shall be made,
process entered or - proceeding taken in any court, whether
by way of injunction, certiorari, prohibition, quo warranto
or otherwise, to question, review, prohibit or restrain the
Board in any of its proceedings under this Part.
In my view, there is nothing extraordinary in
this privative clause contained in the Canada
Labour Code.
There are numerous decisions of common law
courts of the highest jurisdiction over many
years which have held that courts of superior
jurisdiction possessing powers of prohibition
and entrusted with the duty of supervising tri
bunals of inferior jurisdiction, have not only the
jurisdiction but the duty to exercise those
powers notwithstanding privative clauses of this
nature where the application is based on a com
plete lack of jurisdiction on the part of the
tribunal of inferior jurisdiction to deal with the
matter with which it purports to deal. These
decisions are based on the very logical assump
tion that where Parliament has set up a tribunal
to deal with certain matters it would be com
pletely illogical to assume that, by the mere fact
of inserting a privative clause in the Act con
stituting the tribunal and outlining its jurisdic
tion, Parliament also intended to authorize the
tribunal to deal with matters with which Parlia
ment had not deemed fit to entrust it or to
exercise jurisdiction over persons not covered
by the Act of Parliament, or to engage in an
illegal and unauthorized hearing.
A fortiori, the principle would apply in cases
where the tribunal was purporting to deal with
matters over which Parliament itself did not
have the power to convey jurisdiction to the
tribunal. The last-mentioned situation is precise
ly the one which the processors, applicants,
allege exists in the present case since they allege
that the power to legislate in this matter in the
circumstances of the present case has been
exclusively reserved to the provinces under sec
tion 92(13) of the British North America Act.
The alternative grounds of the motion, namely,
that the Act itself does not purport to give the
respondent Board jurisdiction over the appli
cants in the circumstances of the present case
would, if upheld, necessarily lead to a finding
that it was attempting to exercise jurisdiction in
circumstances not authorized by Parliament in
the Canada Labour Code and would, therefore,
also give this Court the jurisdiction to intervene.
Finally, I would like to state that it matters
not whether the power and duty of supervision
is a general one, such as exists in the superior
courts of the provinces, flowing from custom
and the common law of England whereby courts
of superior jurisdiction have traditionally exer
cised the power or whether it is founded entire
ly on a specific statutory provision such as
section 18(a) of the Federal Court Act in the
case of this Court.
I therefore find that I have jurisdiction to
intervene on both grounds raised in the applica
tion before me.
At the opening of argument, counsel for all of
the applicants and counsel for both respondents
assured me that should I, or the Federal Court
of Appeal in its turn, come to a decision adverse
to their position in this matter, the definite
instructions from their respective clients were
to pursue the matter to the Supreme Court of
Canada. Such an assertion of ultimate intention
is not comforting to a Trial Judge who is then
inclined to feel that no matter what study or
thought he might devote to or what pearls of
legal wisdom he might by accident or design,
contribute to the question in issue, he is not
being called upon to dispense justice between
the parties but merely to act as a first cog in the
procedural machinery which will eventually
bring the matter before the highest tribunal in
the land for ultimate decision. His role is all the
more limited and uninspiring when, in a case
such as this, there is no dispute as to facts and
all evidence is submitted in affidavit form and
the judge cannot even discharge his normal role
of arriving at findings of fact or of determining
matters of credibility. But, having regard to the
importance of the issue, I will resist the tempta
tion of merely deciding the matter by a toss of
the coin as I threatened to do when counsel
solemnly announced their intention to pursue
the matter further no matter what the outcome
might be.
Section 107(1), being the interpretation sec
tion pertaining to Part V of the Canada Labour
Code, defines "dependent contractor" in part as
follows:
107. (1) In this Part,
"dependent contractor" means
(b) a fisherman who is not employed by an employer but
who is a party to a contract, oral or in writing, under the
terms of which he is entitled to a percentage or other part
of the proceeds of a joint fishing venture in which he
participates with other persons;
"Employee" is defined as including a dependent
contractor. In other words, the fishermen are,
by statute, created employees of the processors.
One cannot logically deal with the first
ground advanced by the applicants, processors,
namely, that the provisions of the Canada
Labour Code are ultra vires without first assum
ing, for the purpose of considering the question
raised, that the Act by its terms purports to be
applicable to the present situation.
In other words, one must assume that section
108 of the Act does by its terms purport to
cover the present situation. Section 108, which
is the only section under which the authority of
the respondent Board can be extended to cover
the applicants reads as follows:
108. This Part applies in respect of employees who are
employed upon or in connection with the operation of any
federal work, undertaking or business and in respect of the
employers of all such employees in their relations with such
employees and in respect of trade unions and employers'
organizations composed of such employees or employers.
Based on a preliminary assumption that this
section renders the Act applicable to the present
situation, it is clear that the Board could not
have been granted its jurisdiction by Parliament
by virtue of the general residuary powers con
tained in section 91 of the British North Ameri-
ca Act since the question of labour relations
generally speaking would normally be con
sidered a matter of property and civil rights
under the exclusive jurisdiction of the provin
cial legislatures under head 13 of section 92 of
the British North America Act, namely: "Prop-
erty and Civil Rights in the Province." The key
words in this case are of course "in the
Province."
There is no doubt that, on the evidence, all
contracts took place in the Province of British
Columbia, all of the processors are situated
there and all purchases of fish are made within
the Province as well as the accounting for such
purchases. Although there seems to be no direct
evidence to that effect, it would also seem
reasonable to conclude from all of the evidence
that, on a balance of probabilities, all of the
members of the crews of the fishing vessels,
whom the respondent Union is seeking to repre
sent, are residents of the Province of British
Columbia or, in any event, one could certainly
conclude that the very great majority of them
are. This conclusion is corroborated to some
extent at least by the fact that the respondent
Union itself bears the name "British Columbia
Provincial Council United Fishermen and Allied
Workers Union." (The underlining is mine.)
The words "property and civil rights" are not
to be given a narrow interpretation and these
words in their fair and ordinary meaning, apply
to contracts and to rights arising from them,
although such rights are not specifically includ
ed in any of the enumerated classes of subjects
in section 92. Refer The Citizens Insurance
Company of Canada v. William Parsons; The
Queen Insurance Company v. William Parsons 3 .
In view of the concluding words of section
91, which read as follows,
And any Matter coming within any of the Classes and
Subjects enumerated in this Section shall not be deemed to
come within the Class of Matters of a local or private
Nature comprised in the Enumeration of the Classes of
Subjects by this Act assigned exclusively to the Legislatures
of the Provinces.
3 (1881-82) 7 App. Cas. 96 at 107.
one must consider whether other characteristics
of the subject matter would take it out of the
jurisdiction of the Province and make it one
which would constitutionally fall under the
jurisdiction of the Parliament of Canada. This
authority must be found in section 91 and must
be found among the specifically enumerated
matters covered by that section and not merely
in the general residuary powers contained in its
opening paragraph.
Among the likely relevant areas of section 91,
which might be held to be applicable, one must
consider head 2, namely, "The Regulation of
Trade and Commerce." These words are not to
be used in an unlimited sense. Sir Montague E.
Smith in delivering the report of the Privy
Council in the above-mentioned case of Citizens
v. Parsons stated at page 112 of the report as
follows:
The words "regulation of trade and commerce," in their
unlimited sense are sufficiently wide, if uncontrolled by the
context and other parts of the Act, to include every regula
tion of trade ranging from political arrangements in regard to
trade with foreign governments, requiring the sanction of
parliament, down to minute rules for regulating particular
trades. But a consideration of the Act shews that the words
were not used in this unlimited sense. In the first place the
collocation of No. 2 with classes of subjects of national and
general concern affords an indication that regulations relat
ing to general trade and commerce were in the mind of the
legislature, when conferring this power on the dominion
parliament. If the words had been intended to have the full
scope of which in their literal meaning they are susceptible,
the specific mention of several of the other classes of
subjects enumerated in sect. 91 would have been unneces
sary; as 15, banking; 17, weights and measures; 18, bills of
exchange and promissory notes; 19, interest; and even 21,
bankruptcy and insolvency.
and at page 113:
Construing therefore the words "regulation of trade and
commerce" by the various aids to their interpretation above
suggested, they would include political arrangements in
regard to trade requiring the sanction of parliament, regula
tion of trade in matters of inter-provincial concern, and it
may be that they would include general regulation of trade
affecting the whole dominion. Their Lordships abstain on
the present occasion from any attempt to define the limits of
the authority of the dominion parliament in this direction. It
is enough for the decision of the present case to say that, in
their view, its authority to legislate for the regulation of
trade and commerce does not comprehend the power to
regulate by legislation the contracts of a particular business
or trade, such as the business of fire insurance in a single
province and therefore that its legislative authority does not
in the present case conflict or compete with the power over
property and civil rights assigned to the legislature of
Ontario by No. 13 of sect. 92. [The underlining is mine.]
The law, on this point, was recently reviewed by
the Federal Court of Appeal in the recent case
of MacDonald v. Vapor Canada Ltd. 4 .
The rights created by a labour contract gov
erning fishermen, although a good part of the
labour might well be performed outside of the
province, would be enforceable within the prov
ince and the contract is in substance a method
for securing rights within the province. The
situation is very similar to the rights arising out
of the workmen's compensation legislation con
sidered in the case of Workmen's Compensation
Board v. Canadian Pacific Railway Company 5 .
The statement of the law in Citizens v. Par
sons (supra) has been subsequently approved
and followed by the Supreme Court of Canada
in a much more recent decision in 1936 in the
reference to it of the question of the constitu
tionality of The Natural Products Marketing
Act, 1934, and its Amending Act, 1935 6 . Chief
Justice Duff, in delivering the judgment of the
Court after quoting the extracts from that case
including the extracts to which I have referred
and referring also to the decision in the case of
Attorney-General for the Dominion of Canada v.
Attorney-General for the Province of Alberta
and Others and Attorney-General for the Prov
ince of British Columbia', states at page 410 of
the said report:
It would appear to result from these decisions that the
regulation of trade and commerce does not comprise, in the
sense in which it is used in section 91, the regulation of
particular trades or occupations or of a particular kind of
business such as the insurance business in the provinces, or
the regulation of trade in particular commodities or classes
of commodities in so far as it is local in the provincial sense;
while, on the other hand, it does embrace the regulation of
external trade and the regulation of inter-provincial trade
and such ancillary legislation as may be necessarily inciden-
4 [1972] F.C. 1156 (refer judgment of Jackett C.J. at
pages 1171 and 1172 of the report).
5 [1920] A.C. 184.
6 Reference is reported in [1936] S.C.R. 398.
7 [1916] 1 A.C. 588.
tal to the exercise of such powers. [The underlining is mine.]
The limitation to be imposed on the scope of
these words "regulation of trade and com
merce" is further illustrated in the above-men
tioned case of Attorney-General for The Domin
ion of Canada v. Attorney-General for Alberta
where it was held that the Parliament of Canada
does not by these words possess the right to
regulate by a licensing system a particular trade
in which Canadians would otherwise be free to
engage in a province and that such a limitation
constitutes an invasion of property and civil
rights reserved to provincial legislatures.
In the case of The King v. Eastern Terminal
Elevator Company' where the provisions of the
Canada Grain Act passed in 1912 to regulate
trade in grain were considered by the Supreme
Court of Canada, these provisions were held
ultra vires the Parliament of Canada. Duff J., as
he then was, stated at pages 447-448:
There are two lurking fallacies in the argument advanced
on behalf of the Crown; first, that, because in large part the
grain trade is an export trade, you can regulate it locally in
order to give effect to your policy in relation to the regula
tion of that part of it which is export. Obviously that is not a
principle the application of which can be ruled by percent
ages. If it is operative when the export trade is seventy per
cent of the whole, it must be equally operative when that
percentage is only thirty; and such a principle in truth must
postulate authority in the Dominion to assume the regulation
of almost any trade in the country, provided it does so by
setting up a scheme embracing the local, as well as the
external and interprovincial trade; and regulation of trade,
according to the conception of it which governs this legisla
tion, includes the regulation in the provinces of the occupa
tions of those engaged in the trade, and of the local estab
lishments in which it is carried on. Precisely the same thing
was attempted in the Insurance Act of 1910, unsuccessfully.
The other fallacy is (the two are, perhaps, different forms of
the same error) that the Dominion has such power because
no single province, nor, indeed, all the provinces acting
together, could put into effect such a sweeping scheme. The
authority arises, it is said, under the residuary clause
because of the necessary limits of the provincial authority.
This is precisely the view which was advanced in the Board
of Commerce Case [1922] 1 A.C. 191 and, indeed, is the
view which was unsuccessfully put forward in the Montreal
Street Railway Case [1912] A.C. 333 ... .
8 [1925] S.C.R. 434.
and Mignault, J., at page 457 of the same report,
stated:
It suffices to answer that the subject matter of the Act is not
agriculture but a product of agriculture considered as an
article of trade. The regulation of a particular trade, and that
is what this statute is in substance, cannot be attempted by
the Dominion on the ground that it is a trade in natural
products.
The subject matter of the legislation in the
present case is labour relations and the product
affected is fish. This product is sold and traded
within the Province, and the legislation would
control the relationship existing between the
parties for the sale of fish in the Province.
Parliament cannot enact legislation affecting
labour relations between fishermen and fish
processors in a province merely under the guise
of its powers to regulate trade and commerce,
nor does the mere fact that the legislation might
possibly enure to the benefit of Canada as a
whole displace the jurisdiction of provincial
legislatures in this field afforded them by the
property and civil rights provisions under
section 92. There is, of course, no national
emergency in this case which would authorize
the Federal Government to legislate under its
peace, order and good government powers.
These principles were specifically dealt with by
the Privy Council in Toronto Electric Commis
sioners v. Snider and Others; Snider and Others
v. Attorneys-General for Canada and Ontario. 9
The object of the federal Act in issue was to
enable industrial disputes between any employ
er in Canada and any one or more of his
employees to be settled. The Act was held to be
ultra vires although it might have been for the
benefit of Canada as a whole and it was further
held in that case that the peace, order and good
government clause would be of no avail to
Canada in that situation.
9 [1925] A.C. 396.
A further specific head of section 91, which
might perhaps be considered as affording juris
diction to Parliament notwithstanding section
92(13), is 91(10): "Navigation and Shipping."
The 1955 reference to the Supreme Court of
Canada of the question of the validity of the
Industrial Relations and Disputes Investigation
Act 10 is of considerable assistance in this regard.
(See Reference re Validity of Industrial Rela
tions and Disputes Investigation Act (Can.) and
Applicability in Respect of Certain Employees of
Eastern Canada Stevedoring Co. Ltd.") The
judgment on the reference held that federal
legislation concerning labour relations of steve
dores was intra vires the Parliament of Canada
because the work of stevedores was so intimate
ly connected with ships and shipping as to form
an essential part thereof. The case is also inter
esting in that it approved the principle laid down
in Paquet and Another v. Corporation of Pilots
For and Below the Harbour of Quebec 12 and
City of Montreal v. Harbour Commissioners of
Montreal; Tetreault v. Harbour Commissioners
of Montreal; Attorney-General for Quebec v.
Attorney-General for Canada 13 to the effect that
the class of subjects falling within navigation
and shipping is to be widely construed. It is also
interesting because, although the case deter
mines that the legislation is intra vires the
Canadian Parliament, there is the clear indica
tion that it would not necessarily apply to all
stevedores and that those engaged in strictly
provincial undertakings or services locally
organized would not be subject to it, and that
the question as to whether it actually applied, in
any particular case, would depend on the cir
cumstances of that case.
In Underwater Gas Developers Ltd. v. Ontario
Labour Relations Board 14 , the Court of Appeal
of Ontario dealt with the problem of whether
labour relations affecting underwater offshore
'° R.S.C. 1952, c. 152.
" [1955] S.C.R. 529.
12 [1920] A.C. 1029.
1J [1926] A.C. 299.
14 (1960) 24 D.L.R. (2d) 673.
drilling were to be subject to federal or to
provincial jurisdiction. It was held that,
although the boats were subject to the Canada
Shipping Act and the work itself had to be
federally approved under the Navigable Waters
Protection Act, the employees themselves were
subject to the Ontario Labour Relations Act
and not subject to federal labour legislation as
the work was purely local and the navigation
and shipping aspects were purely incidental
thereto. In my view, notwithstanding that the
power to control the class of subjects falling
within navigation and shipping is to be widely
construed, to hold that Parliament would have
jurisdiction over the labour relations between
the fishermen and the processors by reason only
of its jurisdiction over navigation and shipping
would, as stated in the last-mentioned case, be
attributing a tortured meaning to that head and
to the provisions of the British North America
Act regarding the division of powers between
Canada and the provinces. I therefore conclude
that the legislation cannot be supported under
that head any more than under the head giving
the power to control trade and commerce.
The next specific head under section 91 of
the British North America Act, where Canada
might assume jurisdiction, is head 12 regarding
"Sea Coast and Inland Fisheries." The limita
tion to be applied to the rights of Parliament
over fisheries was laid down in 1882 in the
leading case on fisheries of The Queen v.
Robertson 1 s where the Supreme Court of
Canada unanimously upheld a previous decision
of the former Exchequer Court. Chief Justice
Ritchie, at pages 120 and 121 of the above-men
tioned report, stated:
Such being the state of matters at the time of confedera
tion, I am of opinion that the legislation in regard to "Inland
and Sea Fisheries" contemplated by the British North
America Act was not in reference to "property and civil
rights"—that is to say, not as to the ownership of the beds
15 (1882) 6 S.C.R. 52.
of the rivers, or of the fisheries, or the rights of individuals
therein, but to subjects affecting the fisheries generally,
tending to their regulation, protection and preservation, mat
ters of a national and general concern and important to the
public, such as the forbidding fish to be taken at improper
seasons in an improper manner, or with destructive instru
ments, laws with reference to the improvement and increase
of the fisheries; in other words, all such general laws as
enure as well to the benefit of the owners of the fisheries as
to the public at large, who are interested in the fisheries as a
source of national or provincial wealth; in other words, laws
in relation to the fisheries, such as those which the local
legislatures were, previously to and at the time of confedera
tion, in the habit of enacting for their regulation, preserva
tion and protection, with which the property in the fish or
the right to take the fish out of the water to be appropriated
to the party so taking the fish has nothing whatever to do,
the property in the fishing, or the right to take the fish, being
as much the property of the province or the individual, as
the dry land or the land covered with water. [The underlin
ing is mine.]
And at page 123 he stated further:
To all general laws passed by the Dominion of Canada
regulating "sea coast and inland fisheries" all must submit,
but such laws must not conflict or compete with the legisla
tive power of the local legislatures over property and civil
rights beyond what may be necessary for legislating general
ly and effectually for the regulation, protection and preser
vation of the fisheries in the interests of the public at large.
The case, in my view, lays down a fairly strict
limitation to the jurisdiction of the Parliament of
Canada under this head. It limits the compe
tence of Parliament in this field to the regula
tion, protection and preservation of fisheries
and excludes from its jurisdiction the rights of
individuals in the fisheries themselves. It would
seem to follow a fortiori that where the true
nature of the subject matter is the right of
individuals to contract as to the proceeds of the
catch, it must be excluded as being too remote
to be necessarily incidental to or effectively
required for the general policing or supervisory
powers afforded the federal authority by section
91(12) over fisheries. The principle in the Rob-
ertson case, supra, limiting federal power to the
supervision and regulation of fisheries was
subsequently followed by the Supreme Court of
Canada in a reference entitled In the Matter of
Jurisdiction over Provincial Fisheries 16 . Chief
Justice Sir Henry Strong at page 519 of this
report stated:
... and the legislative authority of Parliament under section
91, subsection 12, is confined to the conservation of the
fisheries by what may conveniently be designated as police
regulations. As this has already been decided by the case of
The Queen v. Robertson, 6 Can. S.C.R. 52, which is binding
upon me, I consider the decision in that case as settling the
existing law. [The underlining is mine.]
The case of Attorney-General for the Domin
ion of Canada v. Attorneys-General for the
Provinces of Ontario, Quebec and Nova Scotia"
makes it abundantly clear that, although section
91(12) confers extensive powers to legislate
concerning the control of fish, which powers
might fundamentally affect to a considerable
degree the exercise of proprietary rights in rela
tion to fisheries or their products, it does not, in
any way, confer any proprietary right to Canada
in relation to fisheries. (Refer pages 712 and
713 of the above-mentioned report of the case.)
The federal authorities have no power to
require a licence as a condition of the operation
of a cannery. This was dealt with also by the
Privy Council when it upheld the unanimous
decision of the Supreme Court of Canada in a
reference to the latter by the Governor General.
The case before the Privy Council was entitled
Attorney-General for Canada v. Attorney-Gener
al for British Columbia ] $. At page 121 Their
Lordships in their report to His Majesty stated:
Their Lordships are of opinion that the appellant's conten
tion in this respect is not well founded. The fact that in
earlier fishery legislation raising no question of legislative
competence matters are dealt with not strictly within any
ordinary definition of "fishery" affords no ground for put
ting an unnatural construction upon the words "sea coast
and inland fisheries." In their Lordships' judgment, trade
processes by which fish when caught are converted into a
commodity suitable to be placed upon the market cannot
upon any reasonable principle of construction be brought
within the scope of the subject expressed by the words "sea
coast and inland fisheries." [The underlining is mine.]
16 (1896-7) 26 S.C.R. 444.
]7 [1898] A.C. 700.
18 [1930] A.C. 111.
From an analysis of these cases it seems clear
that fish are property which fall within the prop
erty and civil rights jurisdiction of the provinces
and that any contract or arrangement between
citizens for the disposal of the proceeds of the
sale of that property is not, in any way, essential
to, does not fundamentally relate to nor is it
necessarily incidental to the policing or control
of fisheries. Fish like grain in The King v. East
ern Terminal Elevator Company (supra) are the
product of the grounds on which they are har
vested and the fact that Canada may control the
fishing grounds does not necessarily give it con
tinuing control after harvesting over the product
itself which is the article of trade or over the
marketing of the product within any province.
The fact that some of the operations and
perhaps in some particular cases the greater part
of the fishing operations may be carried on
outside provincial territorial waters does not
affect the situation. This point was specifically
dealt with by the Court of Appeal of British
Columbia in Mark Fishing Co. Ltd. v. United
Fishermen & Allied Workers' Union 19 . In this
case, on the question of legislative authority
over the subject matter, Chief Justice Davey
stated at page 647:
... I see no distinction between property rights in fisheries
and the regulation of labour relations in the industry,
because the legislative authority over both belongs to the
provinces under s. 92(13), unless the right to regulate labour
relations in the industry is an essential or vital part of the
protection and preservation of the fisheries, a point I shall
discuss later.
He then went on to state at page 649:
Since I am firmly of the opinion that head (12) does not
by interpretation expressly extend to legislative control over
labour relations between owners of fishing vessels and their
crews, it becomes necessary to consider whether the power
to regulate and control the fisheries in order to preserve and
protect them must include the power to regulate the terms
and conditions of employment of the fishing crews vis-Ã -vis
their employers.
19 [1972] 3 W.W.R. 641.
He then concluded that it had not been estab
lished in evidence that the power to regulate and
control fisheries must include the power to
regulate any terms or conditions of employ
ment.
On this last-mentioned point, the evidence, in
the present case before me, indicates that pro
longed work stoppage in the fishing industry
might have an adverse effect on the reproduc
tion of fish by reason of over-abundance of fish
in the spawning grounds. One cannot help but
conclude, however, that a stoppage of work in
the canneries themselves, or perhaps over the
transportation system from the canneries or in
the supply of containers, etc. to the industry,
would result in fish purchases being halted and,
therefore, would be just as likely to lead to an
interruption of fishing. No one could seriously
argue that this would give Parliament the power
to legislate regarding labour relations in these
last-mentioned areas. In any event, the above-
quoted case of Mark Fishing Co. Ltd. v. United
Fishermen & Allied Workers' Union specifically
dealt with the matter and, although that decision
is not binding on me, I certainly consider it good
law. It may be stated here also that one cannot
suppose that work stoppage would be more
likely to occur or be more prolonged where
labour relations are provincially controlled as
opposed to being federally controlled, and it
follows that one cannot reasonably conclude
that provincial control of labour relations in this
situation would be likely to hinder Canada's
right to police and supervise the fishing
grounds. For the above reasons I cannot accept
the argument that head 12 of section 91 would,
in the circumstances of the present case, over
ride the jurisdiction afforded the Province in
this matter under section 92(13).
An argument was advanced at the hearing to
the effect that, by reason of Canada's treaty-
making powers regarding fisheries and the
reciprocal protection of fisheries and Canada's
obligation to implement such treaties, the
Canadian Parliament possesses ipso facto juris
diction over the labour relations of fishermen.
As to distribution of treaty-making powers,
the subject was fully dealt with and settled by
the Privy Council in Attorney-General for
Canada v. Attorney-General for Ontario 20 . In
that case, Their Lorships, after clarifying cer
tain doubts which had arisen by reason of some
ambiguous wording in what is referred to as the
Aeronautics case [1932] A.C. 54 and certain
obiter dicta used in what is known as the Radio
case [1932] A.C. 304, went on to state at page
351 as follows:
Their Lordships are satisfied that neither case affords a
warrant for holding that legislation to perform a Canadian
treaty is exclusively within the Dominion legislative power.
For the purposes of ss. 91 and 92, i.e., the distribution of
legislative powers between the Dominion and the Provinces,
there is no such thing as treaty legislation as such. The
distribution is based on classes of subjects; and as a treaty
deals with a particular class of subjects so will the legislative
power of performing it be ascertained. No one can doubt
that this distribution is one of the most essential conditions,
probably the most essential condition, in the inter-provincial
compact to which the British North America Act gives
effect.
And also at page 352:
It follows from what has been said that no further legisla
tive competence is obtained by the Dominion from its
accession to international status, and the consequent
increase in the scope of its executive functions. It is true, as
pointed out in the judgment of the Chief Justice, that as the
executive is now clothed with the powers of making treaties
so the Parliament of Canada, to which the executive is
responsible, has imposed upon it responsibilities in connec
tion with such treaties, for if it were to disapprove of them
they would either not be made or the Ministers would meet
their constitutional fate. But this is true of all executive
functions in their relation to Parliament. There is no existing
constitutional ground for stretching the competence of the
Dominion Parliament so that it becomes enlarged to keep
pace with enlarged functions of the Dominion executive. If
the new functions affect the classes of subjects enumerated
in s. 92 legislation to support the new functions is in the
competence of the Provincial Legislatures only. If they do
not, the competence of the Dominion Legislature is declared
by s. 91 and existed ab origine. In other words, the Domin
ion cannot, merely by making promises to foreign countries,
clothe itself with legislative authority inconsistent with the
constitution which gave it birth. [The underlining is mine.]
In view of the above, it seems established law
that the treaty-making powers of Canada exist
ing by reason of its control over sea coast and
20 [1937] A.C. 326.
inland fisheries cannot give the Canadian Parlia
ment any more jurisdiction than it possesses by
virtue of the very head in section 91 which is
the source of that treaty-making power on the
subject, namely, in this case, head 12 pertaining
to "Sea Coast and Inland Fisheries."
A very comprehensive argument was also
made on behalf of the interveners Native Broth
erhood based on Canada's exclusive right to
legislate regarding native Indians and their
lands, to the effect that the federal authority for
this reason did have jurisdiction in the present
case. The jurisdiction of the Federal Govern
ment over native Indians is found in head 24 of
section 91 which reads as follows: "Indians and
Lands reserved for the Indians."
At the same time, the argument was also
made that by reason of the Royal Proclamation
of 1763, which it is alleged is in force in British
Columbia, or alternatively, by reason of aborigi
nal rights to engage in fishing, which native
Indians have enjoyed from time immemorial
and which rights cannot be removed or regulat
ed directly or indirectly by provincial legisla
tion, the federal authority has exclusive right to
legislate regarding labour relations between fish
ermen and the processors since labour relations
in this special area can intimately affect the
rights of Indians and since fishing is one of their
main occupations in British Columbia.
As to the aboriginal rights of Indians in Brit-
ish Columbia, or those existing by virtue of the
Royal Proclamation of 1763, it seems that, in
view of the split decision of the Supreme Court
of Canada in the case of Calder v. Attorney-
General of British Columbia 21 , the courts of
British Columbia (but not this Court) are now
bound by the unanimous decision of the Court
of Appeal of that Province in the Calder case
reported in (1971) 13 D.L.R. (3d) 64. That
21 [1973] S.C.R. 313.
Court upheld the decision of the Trial Judge,
who dismissed the action for a declaration that
the aboriginal or Indian title to ancient tribal
territories was never lawfully extinguished.
It would be useful under the circumstances to
have the matter reconsidered by the Supreme
Court of Canada, especially in view of the fact
that it seems certain that the present case will
ultimately reach that Court, but I for one, fail to
see how the issue is relevant to the present case.
The mere fact that the control of labour rela
tions between fishermen and fish processors
might affect the rights of many Indians by
reason of the fact that there are a good many of
them among the crews of fishing vessels is not,
in my view, a factor which would give Canada
jurisdiction. Even if it were ultimately decided
that the Indians did possess certain territorial
rights by virtue of either aboriginal rights or the
Royal Proclamation of 1763, I fail to see how it
would follow that they have any exclusive right
to fishing, especially in the sea or the coastal
areas. Nothwithstanding that the native Indians
might possibly possess ancient rights regarding
fishing and hunting or certain territorial rights,
they certainly do not possess an exclusive right
over either the inland fisheries of British
Columbia, the coastal fisheries or those on the
high seas.
The legislation in issue does not purport to
affect the rights of native Indians as such; it is
not directed at them either expressly or implicit
ly. It is in substance as well as in form, general
legislation designed to regulate and control the
relationship existing between fish processors
and all fishermen who fall under the definition
of employee as stated in section 107(1)(b) above
quoted. Since it is truly labour legislation affect
ing all citizens who fall under its terms, the
mere fact that some native Indians who, as
members of crews of fishing vessels choosing to
contract with fish processors, are affected by it,
cannot give Parliament jurisdiction to enact this
type of legislation any more than the fact that
they might form a substantial part of the people
engaged in any other particular business, trade,
calling or profession would clothe Parliament
with jurisdiction over labour legislation in any
such field. Furthermore, the fact that the par
ticular trade or calling involved happens to be
fishing, which is obviously a trade, or calling in
which all Canadian citizens may participate
without distinction as to race, cannot in any way
alter this aspect of the situation. The enjoyment
by native Indians of any ancient privileges or
rights not enjoyed by others cannot change or
override any province's right to legislate gener
ally as to property and civil rights for the gener
al benefit of the residents of that province.
Should the native Indians indeed possess such
ancient aboriginal or treaty rights and should
any particular provision of any such legislation
infringe those rights, such provision would not
be binding upon or operative against native Indi-
ans, but this certainly does not mean that the
Province would lose its jurisdiction to pass the
legislation in the first place and that jurisdiction
in the matter would pass to Parliament by
reason of any such native rights.
It is therefore unnecessary to decide whether
aboriginal or treaty rights exist for the purpose
of determining the question in issue and, for the
reasons above mentioned the fact that the crews
of fishing vessels comprise native Indians
cannot affect jurisdiction in this case.
The second ground raised by the processors
for objecting to jurisdiction is that the Act by its
very terms does not purport to apply to the
present situation. As stated previously, the rele
vant section is 108 of the Canada Labour Code
(supra). "Federal work, undertaking or busi
ness" is fully defined in section 2 of the Canada
Labour Code and means:
. any work, undertaking or business that is within the
legislative authority of the Parliament of Canada .. .
In other words the word "federal" is not limited
to a work or undertaking in which the Federal
Government is actually engaged as such, but a
work or undertaking or business over which the
Federal Parliament has authority to legislate.
Section 108 states that the provisions of that
part of the Canada Labour Code apply when
the employees (which include the fishermen in
our case) are "employed upon or in connection
with the operation of any such work, undertak
ing or business." The fishermen are certainly
not employed "upon" the operation of any such
work, etc. The question is therefore whether
they might be considered as being employed "in
connection with" the operation of same.
The meaning and application of the words "in
connection with" were considered by almost all
the Justices of the Supreme Court of Canada in
a 1955 reference to that Court of the 1952
Industrial Relations and Disputes Investigation
Act 22 to which I have previously referred in
these reasons. The words "in connection with"
were used in section 53 of that Act which was
so similar to section 108 of the Canada Labour
Code as to be almost identical to it. The relevant
part of section 53 reads as follows:
53. Part I applied in respect of employees who are
employed upon or in connection with the operation of any
work, undertaking or business that is within the legislative
authority of the Parliament of Canada including, but not so
as to restrict the generality of the foregoing,
As to the words "in connection with" Tas-
chereau J. (as he then was) stated at page 542 of
the report:
The words "in connection with" found in s. 53, must not
of course be given too wide an application. But, I think it
quite impossible to say in the abstract, what is and what is
not "in connection with". It would be overweening to try
and foresee all possible cases that may arise. I can imagine
no general formula that could embrace all concrete even
tualities, and I shall therefore not attempt to lay one down,
and determine any rigid limit. Each case must be dealt with
separately.
22 Reported in [1955] S.C.R. 529.
Kellock J. had this to say about the expression
at page 556:
Apart from Government employees, the application of
Part I is provided for by s. 53, which it is not necessary to
restate. In my view, the words "in connection with" in the
second line of s. 53, as well as in paragraph (a), are not to be
construed in a remote sense but as limited to persons
actually engaged in the operation of the work, undertaking
or business which may be in question. Just what are the
proper limits in this connection of the word "employees" in
the section must be left for determination in particular cases
as they arise. For example, persons performing merely
casual services upon or in connection with a Dominion
"undertaking" would not necessarily fall within the ambit of
that word as used in s. 92(10).
Rand J. stated at pages 548 and 549:
The tests of the scope of dominion powers as they touch
incidentally upon civil rights are difficult of precise formula
tion. In Grand Trunk Railway Company v. Attorney General
of Canada (supra) Lord Dunedin asks whether the dealing
with a civil right there was "truly ancillary to railway
legislation". The fact that the prohibition would tend, as
argued by the company, to negligence on the part of
employees, was taken, if true, to be conclusive that the
prohibition was ancillary. Other expressions have been
used: "necessarily incidental" in the Local Prohibition case
[1896] A.C. 348 at 360: "incidentally": Ladore v. Bennett,
[1939] A.C. 468. These phrases assume that legislation on a
principal subject matter within an exclusive jurisdiction may
include as incidents subordinate matters or elements in other
aspects outside that jurisdiction. The instances in which this
power has been upheld seem to lead to the conclusion that if
the subordinate matter is reasonably required for the pur
poses of the principal or to prevent embarrassment to the
legislation, its inclusion to that extent is legitimate. This may
be no more than saying that the incidental has a special
aspect related to the principal. Actual necessity need not
appear as the contracting out case shows; it is the appropri
ateness, on a balance of interests and convenience, to the
main subject matter or the legislation. I do not construe the
words "in connection with" in the opening paragraph of s.
53 as to local matter to go beyond what can be annexed to
federal legislation within the meaning of these phrases. [The
underlining is mine.]
Kerwin C.J.C. stated at page 535:
... therefore, the Act before us should not be construed to
apply to employees who are employed at remote stages, but
only to those whose work is intimately connected with the
work, undertaking or business.
Estey J. stated at page 566:
Mr. Magone particularly emphasized the words "upon or
in connection with" in the opening words of s. 53 and "on
for or in connection with" as they appear in s. 53(a). He
contended that these words are so wide and comprehensive
as to include not only matters which may form an integral
part or be necessarily incidental to a work, undertaking or
business over which the Parliament of Canada has legisla
tive jurisdiction, but would extend to any activity, however
slightly or remotely it may be connected with a given work,
undertaking or business. It may be conceded that in their
widest import there is much in such a contention, but these
words must be read and construed in association with the
other language of the section and, indeed, with that of the
Act as a whole. When so read I do not think they could be
construed to include more than that which would form an
integral part or be necessarily incidental to the work, under
taking or business that was within the legislative compe
tence of Parliament.
Cartwright J. (as he then was) stated at page
582:
With this in mind the words "in connection with" appearing
in the second line of the section must be understood as
meaning "connected in such manner with the operation of
the work, undertaking or business referred to that the legis
lation contained in Part I of the Act when applied to the
employees so described is in substance legislation in relation
to the operation of such work, undertaking or business or
necessarily incidental (to use the words of Lord Watson in
Attorney-General for Ontario v. Attorney-General for
Canada, [1896] A.C. 348 at 360) or truly ancillary (to use
the words of Lord Dunedin in Grand Trunk Railway v.
Attorney-General for Canada [1907] A.C. 65 at 68) thereto."
The words "in connection with" in the second line of clause
(a) must be similarly construed ... .
and Fauteux J. (as he then was) stated at page
587:
... the employment therein referred to would then be
employment upon such work, undertaking or business that is
within the legislative authority of the Parliament of Canada
or employment as to part of or necessarily connected with
the operation of such work, undertaking or business. Hence
the effectiveness of the limitation is unaffected by the
words "in connection with"" appearing in the governing
provision of the section ... .
It seems clear from this case that if the words
"in connection with" were not given the restric
tive meaning of being "necessarily incidental
to" then the statute, being labour legislation,
would be ultra vires the Parliament of Canada in
accordance with the previous decision of the
Privy Council in the Toronto Electric Commis-
sioners v. Snider (supra) as being general prop
erty and civil rights legislation.
In considering the words "in connection
with" in the light of the particular circumstances
of the case at Bar, in order to decide whether
the statute would be operative in the case of the
processors and the fishermen, one must deter
mine whether there is a federal work, undertak
ing or business in connection with the operation
of which the fishermen are employed.
According to the authorities previously
quoted, the federal undertaking or business over
which Parliament has legislative authority in this
case is fisheries in the limited sense of the
policing or the controlling of the exploitation of
fisheries. Are fishermen employed in connec
tion with the operation of that particular
undertaking?
The decision would not be difficult if the
federal authorities were legally engaged in the
trade or business of fishing. The employment in
which the fishermen are in fact engaged is
undoubtedly fundamentally and directly affect
ed by the controls or regulations which Canada
might, from time to time, legally impose on the
fisheries, but that is an entirely different matter
from saying that they are employed in any way
in connection with the undertaking of effective
ly imposing or carrying out the controls them
selves. They are subject to policing and control
ling activities imposed by the Canadian statutes
affecting fisheries but they are not employed in
connection with the operation of those activi
ties, namely, the policing and control of
fisheries.
It might be otherwise also if Parliament had
legislative jurisdiction over the business, trade
or undertaking of fishing. It does not, in my
view, possess any such jurisdiction. Its jurisdic
tion is limited to the policing of fisheries them
selves and does not, as stated previously, even
enjoy property rights over these fisheries. The
fact that it could by its regulatory powers in
some instances completely prevent any fishing
whatsoever from taking place does not clothe it
with the jurisdiction over fishing as a business.
Any interference with actual fishing is merely a
direct consequence on provincial property and
civil rights, of the exercise by Canada of its
jurisdiction in a field reserved to it and does not
thereby extend the jurisdiction of Parliament
over the provincial civil rights field which has
been so affected by the federal legislation. Par
liament would possess jurisdiction in this latter
field only if such additional jurisdiction were
essential to or reasonably required for the
proper exercise of jurisdiction in the field
reserved to it. I cannot find any such essential
requirement, for Canada may continue as it has
up to the present time, to effectively control the
fisheries without controlling the labour relations
of the fishermen. It follows that the fishermen
cannot be considered as employed "in connec
tion with" any federal work, undertaking or
business.
I therefore conclude that the terms of section
108 of the Canada Labour Code do not purport
to render the Act applicable to labour relations
between fishermen and the processors in the
circumstances of the case before me, but in any
event if they do, then the Act is in that respect
unconstitutional and ultra vires the Parliament
of Canada in that it purports to deal with a
matter specifically reserved to the provinces
under head 13 of section 92 of the British North
America Act.
The applicants in this motion will therefore be
entitled to the relief claimed and a writ of prohi
bition will issue as requested.
The fact that, as stated previously, I have
been assured by all of the applicants and both
respondents that my decision, whatever it may
be, will be appealed should not deter me from
applying the generally accepted principle that
costs normally follow the event. Accordingly,
the applicants shall have their costs against the
respondents.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.