A-273-87
Canada Post Corporation (Applicant)
v.
Canadian Union of Postal Workers, Letter Carri
ers' Union of Canada, Canadian Postmasters and
Assistants Association, Public Service Alliance of
Canada, Association of Postal Officials of
Canada, Professional Institute of the Public Ser
vice of Canada, International Brotherhood of
Electrical Workers, Local 2228, Association of
Rural Route Mail Couriers of Canada, Associa
tion des courriers ruraux du Québec (Respon-
dents)
and
Canada Labour Relations Board (Tribunal)
INDEXED AS: CANADA POST CORP. v. C.U.P. W. (C.A.)
Court of Appeal, Marceau, Hugessen and Desjar-
dins JJ.—Ottawa, November 12 and December
21, 1987.
Postal service — Canada Post Corporation Act, s. 13(6)
deeming mail contractors not employees for purposes of Part
V, Canada Labour Code — Canada Labour Relations Board
holding s. 13(6) not applicable to rural route couriers
Board misinterpreting s. 13(6) and s. 2 definitions of "mail
contractor" and "transmit" — "Transmit" including whole of
process of sending matter by mail, including acts of posting
and delivery — Use of "contrat d'entreprise" in definition of
"entrepreneur postal" aimed at form of contract — Persons
holding contracts for transmission of mail not employees
though in position of dependence similar to persons having
contracts of service.
•
Labour relations — Jurisdiction of Canada Labour Rela
tions Board -- Canada Post Corporation Act, s. 13(6) provid
ing mail contractor deemed not employee for purposes of Part
V, Canada Labour Code — Code, s. 118(p)(i) giving Board
jurisdiction to decide whether person employee S. 13(6)
defining and limiting Board's general jurisdiction Board's
decision subject to being set aside as cannot give itself juris
diction does not have Board erred in holding s. 13(6) not
applying to rural route couriers Decision set aside.
Judicial review — Applications to review — Canada Labour
Relations Board holding Canada Post Corporation Act, s.
13(6) not applying to rural route mail couriers — Whether
Board determining limits of jurisdiction or deciding question
arising in exercise of jurisdiction — That subsection address
ing application of Code, integrated in another statute, and
drafted as deeming provision expressed in negative considered
— General purpose of Act to enlarge jurisdiction of Board, but
s. 13(6) restricting activities in new field — Whether Board's
decision subject to judicial review — Effect of Code, s. 122
and doctrine of curial deference — Whether Board's decision
correct — Board's decision set aside.
This was an application to set aside a decision of the Canada
Labour Relations Board that subsection 13(6) of the Canada
Post Corporation Act does not apply to rural route mail
couriers, and that the couriers are employees within section 107
of the Canada Labour Code. Subsection 13(6) provides "Not-
withstanding any provision therein, for the purposes of the
application of Part V of the Canada Labour Code to ...
employees of the Corporation, a mail contractor is deemed not
to be a dependent contractor or an employee within ... subsec
tion 107(1) of [the Code] ". "Mail contractor" is defined as a
"person who has entered into a contract with the Corporation
for the transmission of mail". "Transmission" means to "con-
vey from one place to another place by any ... means." The
result of the Board's decision is that couriers, who have always
been treated as independent contractors, will be treated as
employees and included within a bargaining unit. Pursuant to
subparagraph 118(p)(î) of the Code, the Board has the power
to decide, for the purposes of Part V of the Code, whether a
group of persons are employees. The issue was whether the
Board was determining the limits of its own jurisdiction or
simply deciding a question which arose in the course of the
exercise of its jurisdiction.
Held (Marceau J. concurring in part in the result), the
application should be allowed.
Per Hugessen J.: Parliament's intention in enacting subsec
tion 13(6) was to define and limit the jurisdiction of the Board.
In the first place, the subsection speaks to the application of
Part V of the Code, which is the very core of the Board's
jurisdiction. This gives the subsection the colour of a text
"intended to circumscribe the authority" of the Board. Second
ly, subsection 13(6) is a deeming provision and is expressed as a
negative. By using this form the statute implicitly admits that
mail contractors may be employees for the purposes of Part V
of the Code, but says that they shall not be treated as such for
those purposes. Parliament has restricted the Board's jurisdic
tion to declare them to be employees. Thirdly, the fact that
subsection 13(6) is integrated into the Canada Post Corpora
tion Act supports the conclusion that it is jurisdictional. The
subsection relies for its effectiveness on the definition of "mail
contractor" in section 2, which is a long way from the Board's
home territory, the Code. The Board's finding that rural route
mail couriers are not mail contractors therefore has implica
tions which go far beyond the field of labour relations. Parlia
ment could not have intended to vest the Board with the power
to make unreviewable decisions on such a matter. Finally, there
is the general context of the Act itself. One of the purposes of
the Canada Post Corporation Act was to remove Post Office
employees from the jurisdiction of the Public Service Employ-
ment Act and to transfer them to the Canada Labour Code.
The Act thus enlarges the jurisdiction of the Board. Therefore,
subsection 13(6), which restricts the Board's activities in part
of a new field granted to it by the rest of the statute, is
jurisdictional.
The Board erred in deciding that couriers were not mail
contractors. There is no ambiguity in the definitions of "mail
contractor" and "transmit". The Board erred in holding that
conveyance of mail was excluded from the definition of "trans-
mit", because it is included in the functions of collection and
delivery. The statute, in a number of places, employs "trans-
mit" as including the whole of the process of sending matter,
including the acts of posting and of delivery. The Board's
interpretation would also lead to anomalous results, in that a
vehicle used for the collection of mail would be excluded from
the definition of "post office" in the English version, but the
same vehicle would be included in the definition of "bureaux de
poste" in the French version. The Board also erred in holding
that mail couriers did not perform contracts for services (Eng-
lish equivalent of contrat d'entreprise used in the French
language definition of "mail contractor"), and therefore were
not mail contractors. Subsection 13(6) would be unnecessary if
its only purpose was to declare not be dependent contractors
persons who could never be so in any event. Parliament was
looking to the form of the contract when it used the expression
"contrat d'entreprise" in the definition of "entrepreneur
postal". Persons holding such contracts are not to be employees
even though their contracts may place them in a position of
dependence such that they are assimilated to persons having
contracts of service. Finally, the explanation of the purpose of
subsection 13(6) by the responsible Minister before the Parlia
mentary Committee throws some light on the background to
the enactment of subsection 13(6). It was curious that the
Board had refused to consider this material, which explained
that the intention was to preserve the tendering system and to
avoid the increase expenditures which would result if the rural
mail contractors were to become unionized. Rural route mail
couriers were mail contractors, and the Canada Post Corpora
tion Act continued that unchanged.
Since the decision dealt only with rural route mail couriers
and since they are excluded from the Board's jurisdiction, there
was nothing to refer back to the Board.
Per Desjardins J. (concurring): The Board had to determine
whether rural route mail couriers were employees within sub
section 107(1) of the Code, and if so, whether subsection 13(6)
of the Canada Post Corporation Act negates such a finding.
The first part of the decision was within the Board's jurisdic
tion, but the second part was not, as it required the Board to
look outside its constituent legislation and give its interpreta
tion of subsection 13(6) of the Canada Post Corporation Act.
The Board could not give itself jurisdiction which it does not
have, by a wrong interpretation of a statute upon which its
jurisdiction depends.
Per Marceau J. (concurring in part in the result): The
question of whether the rural route mail couriers were
employees of Canada Post was not a jurisdictional question.
Subparagraph 118(p)(i) of the Code specifically gives the
Board, jurisdiction to determine whether a person is an
employee. In order to arrive at this decision, other questions
had to be answered first, one of which required the interpreta
tion of subsection 13(6) of the Canada Post Corporation Act.
The question was one of mixed fact and law as it involved
analysis of the contractual relationship to determine if rural
route mail couriers were covered by subsection 13(6), and the
strict construction of subsection 13(6) in light of the definitions
in section 2. Subsection 13(6) goes to jurisdiction in that it has
direct consequences on jurisdiction as it excludes the possibility
of attributing a particular legal characterization to the relation
ships of persons in a specified factual situation. However, it is
not jurisdictional as it does not determine the powers of the
Board.
Nonetheless, the Board's decision should be reviewed for
correctness. The judicial deference normally due to the deci
sions of a specialized administrative tribunal did not here apply
as interpretation of the Canada Post Corporation Act is outside
the Board's field of expertise. The Board's interpretation of
sections 2 and 13(6) of the Act was wrong, and patently
unreasonable. It rendered subsection 13(6) redundant and
nonsensical.
Rather than setting the decision aside, the question of wheth
er rural route mail couriers are employees should be referred
back to the Board.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Labour Code, R.S.C. 1970, c. L-1, ss. 107 (as
am. by S.C. 1972, c. 18, s. 1), 109 (as am. idem),
118 (p)(i) (as am. idem), 122 (as am. by S.C. 1977-78,
c. 27, s. 43).
Canada Post Corporation Act, S.C. 1980-81-82-83, c. 54,
ss. 2, 13(6), 14, 15, 17(1)(g), 34(3),(6), 38, 67-71.
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Post Office Act, R.S.C. 1970, c. P-14, ss. 2(1), 22-35.
Public Service Staff Relations Act, R.S.C. 1970, c. P-35.
CASES JUDICIALLY CONSIDERED
APPLIED:
R. v. Verrette, [1978] 2 S.C.R. 838; Komo Construction
Inc. et al. v. Commission des Relations de Travail du
Québec et al., [1968] S.C.R. 172; Syndicat des employés
de production du Québec et de l'Acadie v. Canada
Labour Relations Board et al., [1984] 2 S.C.R. 412; 14
D.L.R. (4th) 457.
DISTINGUISHED:
Paul L'Anglais Inc. v. Canada Labour Relations Board,
[1979] 2 F.C. 444 (C.A.); Public Service Alliance of
Canada v. Canada Labour Relations Board, A-872-85,
Hugessen J., judgment dated 6/3/86, F.C.A., not
reported.
REFERRED TO:
Canadian Union of Public Employees, Local 963 v. New
Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; Re
Service Employees International Union, Local 204 and
Broadway Manor Nursing Home et al. and two other
applications- (1984), 48 O.R. (2d) 225 (C.A.); Ontario
Secondary School Teachers' Federation, District 14 and
Board of Education of Borough of York and two other
applications, Re (1987), 35 D.L.R. (4th) 588 (Ont. Div.
Ct.); Reference re Upper Churchill Water Rights Rever
sion Act, [1984] 1 S.C.R. 297; Re Freight Emergency
Service Ltd. (1984), 55 di 172 (C.L.R.B.); Blanchard v.
Control Data Canada Ltd. et al., [1984] 2 S.C.R. 476; 55
N.R. 194.
COUNSEL:
John A. Coleman, Robert Monette and Mary
Gleason for applicant.
Gaston Nadeau for respondent Canadian
Union of Postal Workers.
John P. Nelligan, Q.C. and Sean T. McGee
for respondents Letter Carriers' Union of
Canada, Canadian Postmasters and Assist
ants Association, Professional Institute of the
Public Service of Canada and Association of
Rural Route Mail Couriers of Canada.
Andrew J. Raven for respondents Public Ser
vice Alliance of Canada and International
Brotherhood of Electrical Workers, Local
2228.
Gordon F. Henderson, Q.C. and Martin W.
Mason for tribunal Canada Labour Relations
Board.
SOLICITORS:
Ogilvy, Renault, Montréal, for applicant.
Trudel, Nadeau, Lesage, Cleary, Larivière &
Associés, Montréal, for respondent Canadian
Union of Postal Workers.
Nelligan/Power, Ottawa, for respondents
Letter Carriers' Union of Canada, Canadian
Postmasters and Assistants Association,
Professional Institute of the Public Service of
Canada and Association of Rural Route Mail
Couriers of Canada.
Soloway, Wright, Houston, Greenberg,
O'Grady, Morin, Ottawa, for respondents
Public Service Alliance of Canada and Inter
national Brotherhood of Electrical Workers,
Local 2228.
Emond, Harnden, Ottawa, for respondent
Association of Postal Officials of Canada.
Gowling & Henderson, Ottawa, for tribunal
Canada Labour Relations Board.
The following are the reasons for judgment
rendered in English by
MARCEAU J. (concurring in part in the result): I
agree with Mr. Justice Hugessen that the decision
of the Board here under attack must be set aside
for the reason that it was rendered in disregard of
a proper interpretation of a provision of the
Canada Post Corporation Act [S.C. 1980-81-82-
83, c. 54]. I must say however, with respect, that I
am not prepared to accept all of the propositions
he adopts in the course of his reasons and I feel the
need to express briefly my personal views on a few
of them.
1. A pivotal proposition in my colleague's anal
ysis is that the question the Board had to deter
mine was jurisdictional. This would render non-
applicable the prescription for judicial deference
for decisions of specialized administrative tri
bunals often reiterated by the Supreme Court
since the decision in Canadian Union of Public
Employees, Local 963 v. New Brunswick Liquor
Corporation, [1979] 2 S.C.R. 227. The jurisdic
tional character of the question had the effect of
making the decision open to review on the "right
or wrong test" and not the "patently unreasonable
test". I have difficulty with that proposition. In my
understanding of the teaching of the Supreme
Court relating to judicial review of administrative
tribunal's decisions, it does not appear to me that
the Board, in making its order, was dealing with a
question that can be said to be properly
jurisdictional.
As I read the decisions of the Supreme Court, to
be classified as properly jurisdictional, a question
must not be merely one to which an answer is
required in order to determine whether the tri
bunal has authority, in the circumstances of the
case, to act or to act in a certain fashion. A
question of that type, i.e. one that goes to jurisdic
tion, must be involved for a decision of a tribunal
whose orders are protected by a strong privative
clause simply to be amenable to paragraph
28(1)(a) of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10].' To be the source of a jurisdic
tional error that requires a review on the right and
wrong basis, a question must be more than one
merely going to jurisdiction. As stated by Mr.
Justice Beetz in the reasons he wrote for the Court
in support of the landmark judgment in Syndicat
des employés de production du Québec et de
l'Acadie v. Canada Labour Relations Board et al.,
[1984] 2 S.C.R. 412 (the C.B.C. decision), the
question must be one relating to the interpretation
of a legislative provision which "describes, lists
and limits the powers" of the tribunal. The notion
of ultra vires is strictly engaged. There lies, in my
understanding, the essence of a properly jurisdic
tional question making a decision of a tribunal
open to full scrutiny.
Coming now to the decision we are concerned
with here, the first observation to be made is that,
as with any decision, it was the result of the
determination of more than one question. The
decision was in itself the answer to an ultimate
question which was the very subject-matter of the
preliminary enquiry, namely whether the rural
route mail couriers were employees of Canada
' The exact wording of the provision should be borne in mind
here:
28. (1) Notwithstanding ...
(a) failed to observe a principle of natural justice or
otherwise acted beyond or refused to exercise its jurisdic
tion; [I underlined the keyword for my proposition.]
This "jurisdictional linkage" in the provision of course does
not mean that the two branches of the rule would not be
essentially different; one, as I see it, has to do with the content
of the decision and brings into play the notion of ultra vires, the
other is concerned with the manner in which the decision was
arrived at and brings into play the notion of fundamental
justice.
Post Corporation for the purpose of Part V of the
Canada Labour Code [R.S.C. 1970, c. L-1 (as am.
by S.C. 1972, c. 18, s. 1)]. This is certainly not a
jurisdictional question within the meaning of the
C.B.C. case; it is even expressly defined in sub-
paragraph 118(p)(î) [as am. idem] of the Canada
Labour Code as a question which, if it arises in the
course of an enquiry before the Board, is to be
determined by the Board. It is true that in order to
arrive at the decision disposing of this ultimate
question, other questions had first to be resolved.
Were these not incidental questions of the nature
of the so-called "preliminary" or "collateral" ones
which the Supreme Court seems to have dismissed
as being capable of raising the final disposition
itself to the level of one pertaining to a properly
jurisdictional issue? (Cf. the comments of Dickson
J. (as he then was) in New Brunswick Liquor
Corporation, at page 233; and those of Beetz J. in
the C.B.C. decision, at page 421.) But, in any
event, let us see if any of these questions can be
classified as jurisdictional within the meaning of
the C.B.C. decision. Some of these questions had
to do with the legal characterization of the con
tractual relationship between the mail couriers and
Canada Post: these were mixed questions of fact
and law which were certainly not properly jurisdic
tional. Among the others was the one requiring the
interpretation of subsection 13(6) of the Canada
Post Corporation Act and this is the foundation of
my colleague's proposition. The question was in
fact mixed since it was whether the rural couriers,
in view of the nature of their contractual relation
ship with Canada Post Corporation, were covered
by subsection 13(6) of the Canada Post Corpora
tion Act, but its legal content involved the strict
construction of the provision in the light of a
definition given in section 2 of the same Act. Is
that provision properly jurisdictional, so as to
render an error as to its construction a jurisdiction
al error vitiating inexorably the ultimate decision?
With respect, I do not believe it is. It does not, as it
is framed, determine the powers of the Board; it
simply excludes the possibility of attributing a
particular legal characterization to the relation
ships of persons placed in a specified factual situa
tion. There are no doubt direct consequences as to
jurisdiction in the sense that it may prevent the
Board from adopting a characterization which
would have made the individuals under consider
ation subject to its orders, the question is certainly
one that goes to jurisdiction, but the same is true
of any statutory rule on the basis of which the
characterization of particular contractual relation
ships has to be determined.
I must say here, however, that even if I do not
think that the question which was before the
Board was a truly jurisdictional one within the
meaning given to the expression by Mr. Justice
Beetz and the Supreme Court, I am not inclined to
reject the view of my colleague that the interpreta
tion given by the Board to subsection 13(6) of the
Canada Post Corporation Act should be reviewed
on a "right or wrong basis" and the decision made
in total dependence of that interpretation con
firmed or set aside accordingly. It seems to me
that the judicial deference normally due to the
particular competence and judgment of a special
ized administrative tribunal is completely unjusti
fied here: the interpretation of the Canada Post
Corporation Act, with respect more directly to two
of its provisions but with incidental effects on
others, is not a question within the Board's field of
expertise. One can certainly not infer from the
manner in which the rule is expressed that the
intention of Parliament was to leave to the Board
the task of giving the prescription its proper
content.
2. Because of the doubt I expressed as to the
possibility of classifying as properly jurisdictional
the question that the Board had to determine, I
feel I ought to strengthen my position by adding
the following comment. In my view, the construc
tion given by the Board to the two provisions of the
Canada Post Corporation Act which stood in the
way of its conclusion was not only wrong as the
thorough analysis presented by Mr. Justice
Hugessen clearly shows; it was, I say it with
respect, patently unreasonable. By adding qualifi
cations to the definition of "mail contractor" as it
is found in section 2 of this Act and giving to it the
sole and strict meaning of independent mail con
tractor, the Board makes the operative part of
subsection 13(6) read: an independent mail con
tractor is deemed not to be a dependent contractor
or an employee. I do not think anyone can reason
ably suggest that Parliament could have enacted,
as a text of law, such a proposition which is more
than a mere useless redundance. To state that a
red wall is deemed to be a red wall is a redundance
which may be defensible, but to state that a red
wall is deemed not to be a yellow wall or a blue
wall would be inexcusable as being nonsense.
3. Finally, I would not dispose of the application
before the Court exactly as suggested by my col
league. Setting aside the decision does not appear
to me sufficient. The very question which the
decision meant to answer, i.e. whether the rural
route mail couriers are employees of the Canada
Post Corporation for the purpose of Part V of the
Canada Labour Code, is still before the Board and
required to be dealt with by the Board. Even if the
directives contained in the judgment of this Court
leave no choice as to that determination, I think it
belongs to the Board to make it.
* * *
The following are the reasons for judgment
rendered in English by
HUGESSEN J.: This section 28 application
attacks a decision of the Canada Labour Relations
Board by which the Board found
... that section 13(6) of the Canada Post Corporation Act
does not apply to couriers
and
... that the couriers are employees within the meaning of
section 107 of the Canada Labour Code.
The subjects of the decision are rural route mail
couriers. These are the persons who can be seen
almost daily in most inhabited rural areas of the
country. They drive their own cars along a desig
nated mail route and deliver and pick up mail from
private roadside mailboxes.
The greatest difficulty to which this application
gives rise is in the threshold question as to whether
in deciding as it did the Board was determining the
limits of its own jurisdiction or simply deciding a
question which arose in the course of the exercise
of its jurisdiction. If the former, the decision is
subject to be set aside if it is wrong for it is trite
law that a tribunal cannot, by a wrong decision,
give itself a jurisdiction it does not have.
If, on the other hand, the question which the
Board answered was one within its jurisdiction, it
is protected from judicial review both, specifically,
by the privative provisions of section 122 of the
Canada Labour Code 2 and, more generally, by the
application of the policy of curial deference to
decisions of administrative tribunals. In such cases,
the Court may only intervene if the decision is so
patently unreasonable as to amount to a fraud
upon the law.
Canada Post Corporation was established by a
statute passed in April 1981.' That statute abol
ished the former Post Office. If we could not take
judicial notice of the fact, the statute itself makes
it plain that one of Parliament's concerns was to
remove employment in the Post Office from the
public service and to transfer jurisdiction to the
Canada Labour Relations Board. The latter Board
has accordingly, at the request of Canada Post
Corporation, undertaken a general review of all
the bargaining units in Canada Post.
The working conditions of rural route couriers
had never been the subject of collective bargaining
within the framework of the Public Service Staff
Relations Act. 4 The Post Office always treated
them as independent contractors. Canada Post
Corporation has continued to do so. The Board, by
its decision, has indicated that it considers the
couriers to be employees and intends to include
them within one or more of the bargaining units
which it will in due course determine as being
appropriate for Canada Post Corporation. It has
not as yet, however, defined such bargaining units
or certified any bargaining agent to represent the
2 R.S.C. 1970, c. L-1 (as am. by S.C. 1977-78, c. 27, s. 43).
3 S.C. 1980-81-82-83, c. 54.
4 R.S.C. 1970, c. P-35.
couriers.
In ordinary circumstances, the determination by
the Board that a group of persons are employees
within the meaning of the Canada Labour Code is
a matter squarely within the Board's jurisdiction
to decide. It is a question specifically remitted to
the Board by the terms of its governing statute
(see, in particular, subparagraph 118(p)(i)). 5
Accordingly the Board may err, in law or in fact,
without attracting judicial scrutiny. What makes
the case of the rural mail couriers different from
the normal is that Parliament appears to have
specifically dealt with them in the Canada Post
Corporation Act.
The relevant provision is subsection 13(6):
13....
(6) Notwithstanding any provision therein, for the purposes
of the application of Part V of the Canada Labour Code to the
Corporation and to officers and employees of the Corporation,
a mail contractor is deemed not to be a dependent contractor or
an employee within the meaning of those terms in subsection
107(1) of that Act.
The following provisions from the definition sec
tion, section 2, are also relevant:
2....
"mail contractor" means a person who has entered into a
contract with the Corporation for the transmission of mail,
which contract has not expired or been terminated;
"transmit" means to send or convey from one place to an other
place by any physical, electronic, optical or other means;
Aware, as I must be, of the injunction not to be
too alert to brand as jurisdictional that which is
doubtfully so, 6 I am nonetheless of the view that
Parliament's intention in enacting subsection 13(6)
was to define and limit the jurisdiction of the
It is this fact which makes the Board's decision a "decision"
within the meaning of section 28 and distinguishes this case
from Paul L'Anglais Inc. v. Canada Labour Relations Board,
[1979] 2 F.C. 444 (C.A.), and Public Service Alliance of
Canada v. Canada Labour Relations Board, A-872-85,
Hugessen J., judgment dated 6/3/86, F.C.A., not reported. We
have here more than a simple assertion of an intention to
exercise jurisdiction; by deciding that couriers are employees,
the Board has purported to actually exercise its jurisdiction.
6 See Canadian Union of Public Employees, Local 963 v.
New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227, per
Dickson J. [as he then was], at p. 233.
Board. It is, in other words, a provision which the
Board must interpret correctly if it is to escape
judicial review. My reasons for coming to this
conclusion are several.
In the first place, the subsection speaks to the
"application" of Part V of the Canada Labour
Code. This is the very core of the Board's jurisdic
tion. For the purposes of such application, that is
in the definition of the Board's jurisdiction, mail
contractors shall be deemed not to be employees.
This gives the subsection the colour of a text
[TRANSLATION] "intended to circumscribe the
authority" of the Board.' Indeed the Board itself
seems to share this view: in its decision, it
describes subsection 13(6) as "an express deroga
tion of the general application of Part V of the
Canada Labour Code". But what is such a deroga
tion other than a limitation on the jurisdiction or
power of the body charged with such application?
It is also, I think, of some significance that
subsection 13(6) is a "deeming" provision and is
expressed as a negative. In R. v. Verrette, [1978] 2
S.C.R. 838, at page 845, Beetz J. analysed the
function of a deeming provision as follows:
A deeming provision is a statutory fiction; as a rule it implicitly
admits that a thing is not what it is deemed to be but decrees
that for some particular purpose it shall be taken as if it were
that thing although it is not or there is doubt as to whether it is.
A deeming provision artificially imports into a word or an
expression an additional meaning which they would not other
wise convey beside the normal meaning which they retain
where they are used; it plays a function of enlargement analo
gous to the word "includes" in certain definitions; however,
"includes" would be logically inappropriate and would sound
unreal because of the fictional aspect of the provision.
In the present case, because the deeming provision
is negative in form, the statute implicitly admits
that mail contractors may be employees for the
purposes of Part V of the Canada Labour Code
7 Per Pigeon J. in Komo Construction Inc. et al. v. Commis
sion des Relations de Travail du Québec et al., [1968] S.C.R.
172, at p. 175. This passage was quoted with approval by Beetz
J. for the Court in Syndicat des employés de production du
Québec et de l'Acadie v. Canada Labour Relations Board et
al., [1984] 2 S.C.R. 412, at p. 420.
but says that they shall not be treated as such for
those purposes.
While the Board has the undoubted power and
jurisdiction to declare who is or is not an
employee, that power is circumscribed here. Par
liament, by deeming a certain class of persons not
to be employees for the purposes of Part V of the
Code' even though, in fact, they may actually be
so, has restricted the Board's jurisdiction to
declare them to be employees. Thus any declara
tion by the Board that mail contractors were
employees would be ineffective against Parlia
ment's provision deeming them not to be. In this
respect, the Board's decision that couriers are not
mail contractors and are therefore employees for
the purposes of the Code would be analogous to a
decision that postal employees under the former
Post Office Act 9 were not employees of Her
Majesty and were therefore subject to the Board's
jurisdiction notwithstanding subsection 109(4) [as
am. by S.C. 1972, c. 18, s. 1]; in each case
Parliament has defined the limits of the Board's
jurisdiction and the Board has no power to change
that definition. Subsection 13(6) is thus truly
jurisdictional in nature rather than a mere direc
tion to the Board that it is to exercise its powers in
a certain way.
I find further support for this view in the fact
that subsection 13(6) is integrated into the Canada
Post Corporation Act. While the subsection itself
clearly speaks to the matter of labour relations and
thus may be said to deal with a question within the
Board's field of expertise, it relies for its effective
ness upon the definition of "mail contractor" in
section 2. Indeed the Board's decision is based
entirely upon its interpretation of that definition,
an interpretation which in its turn relies on the
Board's view of the proper meaning to be given to
other parts of the Act. This is a long way from the
The English version specifies that this is "notwithstanding"
any of the other provisions of Part V: this clearly includes those
provisions which attribute jurisdiction to the Board and protect
it from review.
9 R.S.C. 1970, c. P-14.
Board's "home territory". 10 In fact, the only other
place in the statute where the expression "mail
contractor" appears is section 38. That provision
deals with the civil liability of the Corporation for
loss or delay in the handling of the mail: a mail
contractor enjoys the same immunity as the Crown
and the Corporation from claims made by the
public but continues liable to the Corporation itself
for the performance of his obligations. The Board's
finding that rural route couriers are not mail
contractors therefore has implications which go far
beyond the field of labour relations. It is difficult
to believe that Parliament intended to vest the
Board with the power to make unreviewable deci
sions on such a matter.
Finally, there is the general context of the
Canada Post Corporation Act itself. I have
already indicated that one of the purposes of that
Act was to remove Post Office employees from the
jurisdiction of the Public Service Employment Act
and to transfer them to the Canada Labour Code.
This purpose emerges clearly from a reading of
section 13 and sections 67 through 71. To put the
matter in another way, one of the purposes of the
Act is to enlarge the jurisdiction of the Canada
Labour Relations Board by extending it to persons
who were formerly excluded from that jurisdiction
by section 109 of the Canada Labour Code. That
being so, it is difficult to say that subsection 13(6),
which serves to restrict the Board's activities in a
part of the new field which the remainder of the
statute grants to it, is not itself jurisdictional in
nature.
From what precedes, it follows that I am of the
view that the proper test against which the Board's
decision must be judged is correctness:
Once a question is classified as one of jurisdiction, and has
been the subject of a decision by an administrative tribunal, the
superior court exercising the superintending and reforming
power over that tribunal cannot, without itself refusing to
exercise its own jurisdiction, refrain from ruling on the correct
1 ° Compare, for example, Re Service Employees Internation
al Union, Local 204 and Broadway Manor Nursing Home et
al. and two other applications (1984), 48 O.R. (2d) 225
(C.A.); Ontario Secondary School Teachers' Federation, Dis
trict 14 and Board of Education of Borough of York and two
other applications, Re (1987), 35 D.L.R. (4th) 588 (Ont. Div.
Ct.).
ness of that decision, or rule on it by means of an approximate
criterion.
(Syndicat des employés de production du Québec et de l'Aca-
die v. Canada Labour Relations Board, supra, at page 441.)
For my part, I confess that I have little difficul
ty in concluding that the Board was wrong in
deciding that couriers were not mail contractors
within the meaning of the Canada Post Corpora
tion Act.
It will be recalled that a mail contractor is
defined in the statute as one having a
2....
... contract ... for the transmission of mail ....
"Transmit" is defined as meaning
2....
... to send or convey from one place to another place by any
... means.
The Board purported to find ambiguity in these
statutory provisions such as to require it to embark
on an exercise of interpretation. The ambiguity
escapes me. The couriers convey mail from place
to place. They do so under contract. Therefore
they are mail contractors. It is difficult to imagine
how Parliament might have expressed itself in
clearer terms.
Be that as it may, the Board thought it proper to
examine a number of other places in the statute
where "transmit" and its derivatives are employed.
It concluded:
... that the word "transmit" is discreet (sic) and distinguish
able from "collecting" and "delivering".
Conceding that couriers collect and deliver mail,
the Board went on to find that their functions
... do not extend to the transmission of mail as that phrase is
used within the scope of the CPC Act.
Since it is clear from the description of the
couriers' functions that they do, in fact, convey
mail in the course of their rounds, the Board's
position seems to be that such conveyance is
excluded from the definition of "transmit" because
it is included in the functions of collection and
delivery:
We are satisfied that the principal function of couriers is the
collection and delivery of mail, whereas mail contractors are
another group of persons under contract involved in the convey
ance and trucking of mail between cities.
In my opinion, the Board has misinterpreted the
provisions of the Canada Post Corporation Act.
In the first place, the statute gives no warrant
for the view that "transmission" of mail is a
discrete function, limited to the conveyance and
trucking of mail between cities and excluding any
action of conveying which is incidental to the
collection and delivery of mail. On the contrary,
the Act, in a number of places, employs "trans-
mit" as including the whole of the process of
sending matter by mail inclusive of both the act of
posting and that of delivery. This is consistent with
the very comprehensive definition which the stat
ute gives to the word "transmit". By way of exam
ple, it is difficult to read paragraph 17(1)(g),
which allows for regulations for the free transmis
sion of materials for the blind or those related
solely to the affairs of the Corporation, as envisag
ing only the conveyance and trucking of mail
between cities. It is likewise for subsection 34(6),
which provides for regulations governing the trans
mission of mail free of postage for the Governor
General and members of Parliament, and, more
specifically, subsection 34(3), which allows a
member to "transmit by post free of postage to his
constituents".
It is also instructive to look at sections 14 and
15, dealing with the exclusive privilege of the
Corporation in "collecting, transmitting and deliv
ering letters". Subsection 14(2) and paragraphs
15(1)(e), (g) and (i) all contain uses of the word
"transmit" or of its derivatives which are quite
inconsistent with the construction put upon it by
the Board.
Other parts of section 2, the definition section,
also produce anomalous results if the Board's view
of the interpretation of "transmit" is correct.
Again by way of example, one may look at the
definitions of "mail conveyance" and "post office":
2....
"mail conveyance" means any physical, electronic, optical or
other means used to transmit mail;
"post office" includes any place, receptacle, device or mail
conveyance authorized by the Corporation for the posting,
receipt, sortation, handling, transmission or delivery of mail;
Thus, in the English version of the Act, "post
office" includes a mail conveyance. The latter
term is defined in English but not in French. The
reason for this becomes clear enough on reading
the French definition of "bureaux de poste",
which, unlike the English version, includes
"matériel" authorized by the Corporation for "le
relevage", which, in its turn, is defined in French
but not in English. Now if, as the Board thought,
transmission of mail excludes collection, a vehicle
used for the collection of mail is not a mail convey
ance and therefore not included within the defini
tion of "post office" in the English version. The
same vehicle would, of course, be included in the
French language definition of "bureaux de poste".
It is only by giving to "transmit" the full meaning
which the plain words of the definition section call
for that this curious paradox can be avoided.
I would add that, to the extent that it were
proper to view collection and delivery as being
distinct from transmission, the statute appears to
treat delivery, at least, as being not a process but
rather an action which takes place in a single
moment in time:
2....
(2) For the purposes of this Act,
(a) leaving mail at the place of residence or business of the
addressee thereof,
(b) depositing mail in a post office lock box or rural mail box
or any other receptacle or device provided for the receipt of
mail of the addressee, or
(c) leaving mail with the addressee or his servant or agent or
with any other person who may reasonably be considered to
be authorized to receive mail by the addressee thereof,
according to the usual manner of delivering mail to that
addressee, is deemed to be delivery to the addressee.
Conveyance up to the moment of delivery would
seem, therefore, not to be part of delivery itself.
Quite apart from the alleged ambiguity of the
definition of "transmit", the Board found another
reason for holding that couriers are not mail con
tractors. In the French language version of the
definition of the latter term, reference is made to
"un contrat d'entreprise", which the Board cor
rectly interpreted as being the equivalent of the
English "contract for services". Having found that
mail couriers were, in fact, dependent contractors
and employees, the Board had no difficulty in
holding that they did not perform contracts for
services and therefore could not be mail contrac
tors. Two comments seem to me to be adequate to
deal with this point.
First, the reasoning of the Board is circuitous.
Second, the whole of subsection 13(6) becomes
useless surplusage if its only purpose is to declare
not to be dependent contractors or employees per
sons who could never be so in any event. It is, in
my view, evident that Parliament was looking to
the form of the contract when it used the expres
sion "contrat d'entreprise" in the definition of
"entrepreneur postal". Persons holding such con
tracts for the transmission of mail are not to be
dependent contractors or employees even though
their contracts may place them in a position of
dependence such that they are, in law, assimilated
to persons having contracts of service.
One final matter calls for comment. The Board
had before it an extract from the proceedings of
the Parliamentary Committee which studied the
Canada Post Corporation Act prior to it becoming
law. The Minister responsible for the bill is report
ed as explaining the purpose of subsection 13(6) in
the following terms:
There are a number of reasons. One of the big ones obviously is
that the override of the Canada Labour Code must continue in
this proposed Canada Post Corporation Act, because without
this override we believe the tendering system that exists pres
ently would be destroyed. The present land mail service con
tracts that we have are valued at about $90 million. If we were
to carry this to the extreme—and I do not want to exaggerate
the figure—the possibility of increased expenditures could be
doubled or even tripled.
Thirdly (sic), the rural mail contractors represent almost 69 per
cent of all land mail service contracts. Approximately 60 per
cent of these work fewer than four hours per day, therefore, if
we were to have these people pressing for unions the next step
would be for the union to press for equalization of work and
full-time employment with, obviously, the triple effect in terms
of escalation of costs. These are just a few of the reasons why I
think it would be risky at this time to change this clause. (at
pages 41:53 and 41:54).
The Board refused to consider this material,
citing Reference re Upper Churchill Water Rights
Reversion Act, [1984] 1 S.C.R. 297."
In view of the Board's broad discretionary
powers regarding the sources of information it may
choose to rely on, I find it impossible to say that
the Board erred in not considering this material. I
do, however, find its attitude curious in the light of
other published decisions in which the Board has
relied heavily on just this sort of material as an aid
to the interpretation of the Canada Labour
Code. 1 2
For my part, while I do not consider the Minis
ter's statement to be conclusive nor even very
weighty, I do think it is of some help as providing a
part of the background to the enactment of subsec
tion 13(6). I also find helpful the provisions of the
former Post Office Act dealing with mail contrac
tors (subsection 2(1), "postal employees", and sec
tions 22 to 35 inclusive). All this material serves to
throw light on the situation as it existed prior to
the passing of the Canada Post Corporation Act.
That situation, as is common ground here, was
that rural mail couriers were considered to be mail
contractors and not postal employees. I have
already indicated that I think the provisions of the
Canada Post Corporation Act are clear and are to
the same effect. That statute, far from altering the
position of the rural mail couriers, continued it
unchanged.
I would allow this section 28 application and set
aside the decision of the Board. Since the decision
dealt only with rural mail couriers and since they
are excluded from the Board's jurisdiction, there is
The Board was also of the view that "the wording dis
cussed during the course of the Committee deliberation was not
the wording of 13(6) as ultimately adopted". The Board was
wrong: a reading of pp. 41:49 to 41:51 of the proceedings
makes it clear that the committee had before it a Government-
sponsored amendment to the original draft bill; this amendment
was adopted at p. 41:54 and now appears as subsection 13(6).
12 See, for example, Re Freight Emergency Service Ltd.
(1984), 55 di 172 (C.L.R.B.), at pp. 192-194.
nothing to refer back to the Board. The contention
of some of the parties to the effect that subsection
13(6) is contrary to the Charter of Rights
[Canadian Charter of Rights and Freedoms, being
Part I of the Constitution Act, 1982, Schedule B,
Canada Act 1982, 1982, c. 11 (U.K.)] was not
dealt with by the Board and was not argued before
us; since, as already stated, the Board does not
have jurisdiction to deal with mail contractors,
that issue will have to be urged in another forum.
* * *
The following are the reasons for judgment
rendered in English by
DESJARDINS J. (concurring): Three issues were
before the Board:
(1) Whether rural route mail couriers are
employees within the meaning of subsection
107(1) of the Code;
(2) If the Board so finds, whether subsection 13(6)
of the Canada Post Corporation Act negates such
a finding; and
(3) In the event that the Board finds that subsec
tion 13(6) acts as such a bar, whether it violates
the Canadian Charter of Rights and Freedoms.
The first two issues were intertwined for once
the Board had assessed the contractual relation
ship between the rural route mail couriers and
Canada Post under subsection 107(1) of the
Canada Labour Code, it still had to decide wheth
er these couriers were "mail contractors" under
section 2 of the Canada Post Corporation Act
since, under the terms of subsection 13(6) of the
Canada Post Corporation Act, a "mail contractor"
was "deemed not to be a dependent contractor or
an employee within the meaning of those terms in
subsection 107(1) of that Act".
In fact, the first two issues were two facets of
the same question, i.e. whether rural route mail
couriers were employees within the meaning of
subsection 107(1) of the Canada Labour Code.
In the course of examining the first facet of the
question, the Board was within its field of expertise
and jurisdiction. When it came to deal with the
second facet of the question, the Board was
required to look outside its constituent legislation
so as to give its interpretation to subsection 13(6)
of the Canada Post Corporation Act. In doing so,
the Board stepped outside of its area of expertise.
The matter became jurisdictional (Blanchard v.
Control Data Canada Ltd. et al., [1984] 2 S.C.R.
476, at page 491; 55 N.R. 194, at page 212;
Ontario Secondary School Teachers' Federation,
District 14 and Board of Education of Borough of
York and two other applications, Re (1987), 35
D.L.R. (4th) 588 (Ont. Div. Ct.), at page 595).
From then on, the Board could not go wrong since
it cannot, by a wrong interpretation of a statute
upon which its jurisdiction depends, give itself a
jurisdiction it does not have. In such instance, the
concept of curial deference has no application.
(Syndicat des employés de production du Québec
et de l'Acadie v. Canada Labour Relations Board
et al., [1984] 2 S.C.R. 412, at pages 441-442; 14
D.L.R. (4th) 457, at pages 479-480). For the
reasons given by Hugessen J., the Board, in my
view, went wrong on its interpretation of subsec
tion 13(6) of the Canada Post Corporation Act.
I therefore concur with the characterization and
reasons for judgment given by Hugessen J.
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.