A-167-89
Cargill Grain Company, Limited (Applicant)
v.
Canada Labour Relations Board, United Automo
bile, Aerospace and Agricultural Implement
Workers of America (Respondents)
INDEXED AS: CARGILL GRAIN CO. v. CANADA (LABOUR RELA
TIONS BOARD) (CA.)
Court of Appeal, Hugessen, MacGuigan and Des-
jardins JJ.A.—Ottawa, August 17 and October
17, 1989.
Constitutional law — Distribution of powers — Whether
C.L.R.B. having jurisdiction to certify union as representative
of Ontario clerical workers at subsidiary of Winnipeg grain
Company — Three elevators in Ontario declared works for
general advantage of Canada — Most operating under provin
cial control — Whether business a federal undertaking —
Distinction between works and undertakings re federal
declaratory power s. 92(10), Constitution Act — Cargill grain
merchandiser, not elevator operator — Elevators incidental to
undertaking — Undertaking wholly provincial in essence
though part of plant declared for general advantage of Canada
— No "core federal undertaking" to underpin federal jurisdi-
cation in primarily provincial field of labour relations.
Labour relations — Application to set aside certification by
C.L.R.B. of union to represent Ontario clerical workers at
subsidiary of Winnipeg grain company — Jurisdiction —
Union applying for certification to both federal and provincial
labour boards — O.L.R.B. declining jurisdiction — C.L.R.B.
lacked jurisdiction as no "core federal undertaking" to under
pin federal jurisdiction in primarily provincial field of labour
relations.
This was a section 28 application to review, for want of
jurisdiction, certification by the C.L.R.B. of the United
Automobile, Aerospace and Agricultural Implement Workers
of America to represent 28 office and clerical employees at the
applicant's Chatham, Ontario office.
The applicant, a subsidiary of a Winnipeg company, acts as a
grain merchant and dealer in Eastern Canada and operates
grain elevators in Ontario. The employees work at Eastern
Headquarters providing essential support services for elevator
operations. Application was made to both the O.L.R.B. and the
C.L.R.B. for certification. The O.L.R.B., at the urging of the
applicant union, refused the application for lack of jurisdiction.
The C.L.R.B. assumed jurisdiction principally on the basis that
the company's operations included "several" elevators within
the meaning of subsection 43(1) (now subsection 55(1)) of the
Canada Grain Act and mills and warehouses within the mean-
ing of section 45 (now section 76) of the Canadian Wheat
Board Act.
Held (MacGuigan J.A. dissenting), the application should be
allowed.
Per Hugessen J.A.: The C.L.R.B. is without jurisdiction to
certify the union. There is no core federal undertaking. Only
three of the company's 27 elevators fall under subsection 55(1)
of the Canada Grain Act. The Board's reference to "several"
elevators is misleading. Section 76 of the Canadian Wheat
Board Act should not be extended beyond its terms. The
warehouses and mills are being operated as adjuncts to the
operation of grain elevators not subject to federal declaration,
the latter being in fact licensed and regulated by Ontario
provincial authority. While recognizing that five of these 25
elevators were under provincial jurisdiction, the C.L.R.B.
ignored the fact that the other 20 elevators operate under
exclusive provincial regulation and control. The undertaking of
Cargill is that of a grain merchandiser buying, selling and
trading in grain in Ontario and operating elevators incidentally
to that undertaking. Such undertaking is wholly provincial even
if some part of the activities relates to interprovincial or
international trade and some part of the physical plant has been
declared to be for the general advantage of Canada.
Per Desjardins J.A. (concurring in the result): Section 55 of
the Canada Grain Act and section 76 of the Canadian Wheat
Board Act deal strictly with the "works" therein described. The
undertakings related to the works are not within the scope of
the declarations. On the facts, the key character of the appli
cant's undertaking is local in nature.
Per MacGuigan J.A. (dissenting): There is no reason to
restrict the generality of the words in section 76 of the Canadi-
an Wheat Board Act. The declaration in section 76 should be
taken to apply to "all flour mills, feed mills, feed warehouses
and seed cleaning mills" in Canada. An undertaking based
upon a federal work and the labour relations of that undertak
ing follow upon and for jurisdictional purposes are integral with
the federal work itself. There is no factual foundation on the
basis of which the Court could reverse the decision of the
Board. The applicable test for integration of a subsidiary
undertaking into a core federal undertaking has been met.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Grain Act, R.S.C. 1927, c. 86, s. 173 (as am. by
S.C. 1950, c. 24, s. 10).
Canada Grain Act, R.S.C. 1952, c. 25, s. 2.
Canada Grain Act, R.S.C. 1970, c. G-16, s. 43(1) (as am.
by S.C. 1970-71-72, c. 7, s. 43).
Canada Grain Act, R.S.C., 1985, c. G-10, ss. 2(a),(b),(c),
(d),(e) (not yet proclaimed in force), 3, 13, 55(1),
(2),(3) (not yet proclaimed in force), 121(1).
Canada Labour Code, R.S.C. 1970, c. L-1, s. 108 (as am.
by S.C. 1972, c. 18, s. 1).
Canada Labour Code, R.S.C., 1985, c. L-2, ss. 2(h), 4,
22, 24.
Canadian Wheat Board Act, 1935 (The), S.C. 1935, c.
53, s. 39 (as am. by S.C. 1947, c. 15; 1950, c. 31, s. 8).
Canadian Wheat Board Act, R.S.C. 1970, c. C-12, s. 45.
Canadian Wheat Board Act, R.S.C., 1985, c. C-24, ss. 2,
5, 6, 23, 32, 76.
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.)
[R.S.C. 1970, Appendix II, No. 5] (as am. by Canada
Act 1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1) s. 92(10).
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as
am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1) [R.S.C., 1985,
Appendix II, No. 5] ss. 91(29), 92(10)(c).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Grain Futures Act, R.S.C., 1985, c. G-11.
CASES JUDICIALLY CONSIDERED
APPLIED:
Northern Telecom Ltd. v. Communications Workers of
Canada, [1980] 1 S.C.R. 115; (1979), 28 N.R. 107;
Canada Labour Relations Board et al. v. Paul l'Anglais
Inc. et al., [1983] 1 S.C.R. 147; 146 D.L.R. (3d) 202;
(1983), 47 N.R. 351.
DISTINGUISHED:
Central Western Railway Corp. v. U.T.U., [1989] 2 F.C.
186; (1988), 47 D.L.R. (4th) 161; (1988), 84 N.R. 321
(C.A.).
CONSIDERED:
Chamney v. The Queen, [1975] 2 S.C.R. 151; (1973), 40
D.L.R. (3d) 146; 13 C.C.C. (2d) 465; [1974] 1 W.W.R.
493.
REFERRED TO:
R. v. Saskatchewan Wheat Pool (1978), 89 D.L.R. (3d)
755; 43 C.C.C. (2d) 119; [1978] 6 W.W.R. 27 (Sask.
C.A.); In Reference re Industrial Relations and Disputes
Act, [1955] S.C.R. 529; [1955] 3 D.L.R. 721; The
Queen v. Thumlert (1960), 20 D.L.R. (2d) 335; (1959),
28 W.W.R. 481 (Alta. C.A.); Camirand c. R., [1976]
C.S. 1294; Antoine Guertin Ltée 1, not reported Québec
Labour Court, No. 500-28-000502-831; Cie du trust
national Ltée c. Burns, [1985] C.S. 1286; Raymond,
Chabot, Martin, Paré & associés c. Association des
employés de G.D.I. Inc., June 9th, 1989 (No. 200-09-
000461-852) (Qué. C.A.); W.G. Thompson & Sons Lim
ited; Re U.F.C.W.; Re Group of Employees, [1987]
OLRB Rep. May, 787; C.S.P. Foods Ltd. v. Canada
Labour Relations Board, [1979] 2 F.C. 23; 25 N.R. 91
(C.A.); Syndicat des employés de production du Québec
et de l'Acadie v. Canada Labour Relations Board, [1984]
2 S.C.R. 412; 14 D.L.R. (4th) 457; (1984), 55 N.R. 321;
14 Admin. L.R. 72; 84 C.L.L.C. 14,069; Construction
Montcalm Inc. v. The Minimum Wage Commission,
[1979] 1 S.C.R. 754; (1978), 93 D.L.R. (3d) 641; (1978),
25 N.R. 1; 79 C.L.L.C. 14,190; Northern Telecom Ltd. v.
Communications Workers of Canada, [1980] 1 S.C.R.
115; (1979), 98 D.L.R. (3d) 1; (1979), 28 N.R. 107; 79
C.C.L.C. 14,211; Attorney-General for Ontario v. Israel
Winner, [1954] A.C. 521; [1954] 4 D.L.R. 657 (P.C.);
756 (Sask. C.A.); Canada Labour Code (Re) (1986),
[1987] 2 F.C. 30; 34 D.L.R. (4th) 228; (1986), 72 N.R.
348; 87 C.L.L.C. 14,017 (C.A.).
AUTHORS CITED
Fraser, Ian. "Some Comments on Subsection 92(10) of
the Constitution Act, 1867" (1984), 29 McGill L.J.
557.
Hanssen, Kenneth. "The Federal Declaratory Power
Under the British North America Act" (1968), 3 Man.
L.J. 87.
Hogg, P.W. Constitutional Law of Canada, 2nd ed.
Toronto: Carswell, 1985.
Lajoie, Andrée. Le pouvoir déclaratoire du Parlement.
Montréal: Les Presses de l'Université de Montréal,
1969.
Laskin, Bora. Canadian Constitutional Law, 5th ed. by
Neil Finkelstein. Toronto: Carswell, 1986.
Schwartz, Phineas. "Fiat by Declaration S. 92(10)(c) of
the British North America Act (1960)", 2 O.H.L.J. 1.
COUNSEL:
Mortimer Freiheit and Pierre Jauvin for
applicant Cargill Grain Company, Limited.
Graham Clarke for respondent Canada
Labour Relations Board.
Stephen B.D. Wahl for respondent United
Automobile Aerospace and Agricultural
Implement Workers of America.
SOLICITORS:
Stikeman, Elliott, Montréal, for applicant
Cargill Grain Company, Limited.
Legal Services, Canada Labour Relations
Board, Ottawa, for the respondent Canada
Labour Relations Board.
Koskie & Minsky, Toronto, for respondent
United Automobile, Aerospace and Agricul
tural Implement Workers of America.
The following are the reasons for judgment
rendered in English by
HUGESSEN J.A.: This section 28 [Federal Court
Act, R.S.C. 1970 (2nd Supp.), c. 10] application
seeks to review and set aside a decision of the
Canada Labour Relations Board certifying the
United Automobile, Aerospace and Agricultural
Implement Workers of America (U.A.W.) to
represent twenty-eight office and clerical
employees in the applicant's office located in Cha-
tham, Ontario.
The sole basis for the application is the appli
cant's contention that the Board was and is consti
tutionally incompetent to deal with the employees
in question. That being so, the standard of review
for this Court must be the correctness of the
impugned decision in constitutional terms, for it is
trite that an organ of one level of government in a
federal system cannot, by a wrong decision in fact
or in law, arrogate to itself powers vested in
another level of government; no privative clause
and no principle of curial deference can protect
constitutional trespass.'
The applicant acts as a grain merchant and
grain dealer in Eastern Canada and is a subsidiary
of Cargill Limited, based in Winnipeg. The appli
cant operates a number of grain elevators in
Ontario but none of the employees whose certifica
tion is here in issue works directly in or on such
elevators; on the contrary, as their title indicates,
they are all office and clerical workers who are
employed in the Eastern Division Headquarters
located in Chatham. That office, besides being the
centre from which the company conducts its grain
merchandising activities, provides essential support
services, principally accounting and reporting, for
the elevator operations.
Conscious of the constitutional difficulties it
might face, the Union applied for certification
simultaneously to the Ontario Labour Relations
' See Northern Telecom Ltd. v. Communications Workers of
Canada, [1980] 1 S.C.R. 115; (1979), 28 N.R. 107; Canadian
Unions of Public Employees v. Paul L'Anglais Inc. et al.,
[1983] 1 S.C.R. 147; 146 D.L.R. (3d) 202; (1983), 47 N.R.
351.
Board and to the Canada Board. In a turn of
events which is, to say the least, curious, the
application before the Ontario Board proceeded
first, but, before that Board, the Union, the appli
cant for certification, contended that the subject
employees fell exclusively under federal jurisdic
tion while the company, the respondent before the
Ontario Board, urged the latter to assume jurisdic
tion. The Ontario Board held a hearing at the
conclusion of which it declined jurisdiction.
The relevant passages of the decision of the
Ontario Board read as follows:
5. In April or May 1988, the respondent was formed as a
result of the acquisition of the assets of Maple Leaf Mills
Grain Company in Chatham, Ontario by the respondent's
parent Company, Cargill Limited. Cargill Grain Company,
Limited's operations are divided into 19 branches which are
responsible for a total of 25 grain elevators. The business of
the branches consists of the buying of grain and the servicing
of customers. Each branch handles its local business and
local customer transactions.
6. All 19 branches report to the eastern region headquarters
in Chatham. The eastern region geographically consists of
the bulk of Ontario and also has responsibility for two grain
elevators situated in the Province of Quebec. As well, it is
responsible for administering a grain elevator in St. John,
New Brunswick pursuant to a management agreement with
Ports Canada. Eighty per cent of the operations of the
eastern region consists of the buying of grain and grain
products from producers in Ontario and the storage, ware
housing and marketing of that grain. The other twenty per
cent of its activity consists of other farm service related
activities.
7. The respondent's parent owns and operates three termi
nals for which the eastern region is responsible; one at
Sarnia, the second at Midland and the third at Port McNi-
coll. Terminals are used mostly for the export of grain via
ships. The operations of the terminal are federally regulated.
The respondent operates two feed mills, and a local seed
cleaning facility in Chatham. The various grain products
serviced by the respondent include corn, soya bean and
wheat. Its wheat activities are governed both by the Ontario
Wheat Board and the Canadian Wheat Board.
8. The primary responsibility of the eastern regional office is
to maintain a record of the transactions conducted in each of
the branches and through the terminals. The regional office
is also responsible for the selling of the products held in its
various grain elevators.
(Case book, at pages 51-52.)
12. The evidence in the instant case is that the respondent's
operations include elevators within the meaning of section
43(1) 2 of the Canada Grain Act and mills and warehouses
within the meaning of section 45 3 of the CWBA. These
operations have been declared by Parliament to be works for
the general advantage of Canada. Accordingly, we have
concluded that we do not have jurisdiction to determine this
application and it is hereby dismissed. 4
(Case book, at page 55.)
The application before the Canada Board, which
had been suspended pending the outcome of the
Ontario proceedings, was thereupon revived. It is
not without significance that the application to the
Canada Board describes the business of the
employer as being that of a "Grain merchandiser"
(Case book, at page 11).
The Canada Board conducted an investigation
and held a hearing. In the investigation report
prepared by the Board's staff, the following gener
al description of the employer's activities appears:
Essentially, the company is divided into three main
components:
i) country elevators and farm supply centres;
ii) transfer elevator operations; and
iii) grain merchandizing.
The subject application directly affects the grain merchandising
employees.
(Case book, at page 77.)
In its decision the Board described the questions
before it as follows:
1) is there a federal undertaking in existence? and 2) are the
office operations in Chatham intimately related to this federal
undertaking?
(Case book, at page 161.)
It is common ground that the Board asked itself
the right questions.' The dispute is over the
2 Now subsection 55(1) of the Canada Grain Act, R.S.C.,
1985, c. G-10.
3 Now section 76 of the Canadian Wheat Board Act, R.S.C.,
1985, c. C-24.
° We are not called upon, and have no jurisdiction, to review
the Ontario Board's finding, but we should not be taken as
approving, even indirectly, a holding that operations which
"include" some federal works are therefore excluded from
provincial labour relations jurisdiction.
5 See Northern Telecom, footnote 1, supra.
answers, particularly the answer to the first ques
tion. The core of the Board's reasoning is as
follows (for ease of reference, I have added para
graph numbers):
[1] The evidence presented to the Board has convinced it
that a federal undertaking exists in the present case. While it
is true that not all of the "country" elevators in Cargill's
operation have been declared to be works for the general
advantage of Canada, there are nonetheless several of Car-
gill's elevators that the Canada Grain Act, R.S.C. 1985 c.
G-10, has explicitly declared to be works for the general
advantage of Canada. For example, in Midland, Ontario one
finds the Midland Simcoe Elevator Co. Limited; in Port
McNicoll, one finds the Marathon Realty Company Limited;
and in Sarnia, one finds Maple Leaf Mills Ltd. All of these
elevators are owned by Cargill. These premises are listed in
Schedule II of the Grain Act as being works for the general
advantage of Canada.
[2] In addition, Cargill has feed warehouses at several loca
tions in Ontario. During the hearing, Mr. S. Guthierrez,
Cargill's eastern regional manager, stated that there were
fifteen such feed warehouses in Ontario. Similarly, Cargill is
also involved with seed cleaning mills such as those in
Princeton and in Wallaceburg. Mr. Guthierrez further stated
that Cargill operates a few small feed mills such as those in
Ayr, Ridgetown and Nelles Corners, Ontario. Cargill also
operates seed bagging plants notably in Tilibury, Ontario.
[3] Based upon these facts, we are prepared to find that
Cargill is involved in a federal undertaking not only because
some of Cargill's elevators have been declared to be works
for the general advantage of Canada, but also because
section 76 of the Canadian Wheat Board Act, R.S.C. 1985,
c. C-24, establishes that the other aspects of Cargill's opera
tions in Ontario have been declared by the Federal Govern
ment to be works for the general advantage of Canada.
While this Board realizes that not all of Cargill's grain
elevators are within its jurisdiction, the overall characteriza
tion of the employer's business must be as a federal
undertaking.
[4] It is also the Board's opinion that the clerical operations
at Chatham are intimately related to the basic federal under
taking. The Chatham office of Cargill administers the feed
mills referred to above. All of the country elevators owned by
Cargill are administered through the Chatham office though,
as mentioned before, some of these elevators are within
provincial jurisdiction. These exceptions would not, however,
change our basic characterization of Chatham's importance
to the operations of Cargill in Eastern Canada. Other func
tions carried out by the Chatham office include accounting,
grain marketing, compilation of statistics from the Eastern
Canada operations, plus coordination of activities at various
places in Eastern Canada such as at the seed cleaning mill in
Wallaceburg.
[5] It is also important to note that the Chatham office is
heavily involved in merchandising i.e. the buying, selling and
transportation of grain. A portion of this merchandising
relates to the futures markets on the Winnipeg and Chicago
grain exchanges. The Winnipeg Grain Exchange is governed
by the Grain Futures Act, R.S.C. 1985 c. G-11. For these
futures markets, traders in eastern Canada place orders
through the Chatham office for the Winnipeg or Chicago
grain exchange.
[6] Taking into account all of the above considerations, the
Board finds that the Chatham office is intimately related
with the federal undertaking. Accordingly, this Board has
jurisdiction over the present certification application.
(Case book, at pages 161 and 162.)
The reference in paragraph [1] to "several"
elevators which have been explicitly declared to be
works for the general advantage of Canada is
somewhat misleading. The Board specifically men
tions three such elevators (Midland, Port McNi-
coll and Sarnia) and these, sometimes referred to
as transfer or terminal elevators, are the only ones
which have been so declared in the Canada Grain
Act. The point is of some importance. Section 55
of the Canada Grain Act reads as follows:
55. (1) All elevators in Canada heretofore or hereafter con
structed, except elevators referred to in subsection (2) or (3),
are and each of them is hereby declared to be a work or works
for the general advantage of Canada.
(2) All elevators in the Eastern Division heretofore or here
after constructed, as defined in paragraph (d) of the definition
"elevator" in section 2, are and each of them is hereby declared
to be a work or works for the general advantage of Canada.
(3) All elevators in the Eastern Division heretofore or here
after constructed, as defined in paragraph (e) of the definition
"elevator" in section 2, are and each of them is hereby declared
to be a work or works for the general advantage of Canada.
This text must be read in conjunction with the
definition of "elevator" in section 2, which reads
as follows:
2. In this Act,
"elevator" means
(a) any premises in the Western Division
(i) into which grain may be received or out of which grain
may be discharged directly from or to railway cars or
ships,
(ii) constructed for the purpose of handling and storing
grain received directly from producers, otherwise than as a
part of the farming operation of a particular producer, and
into which grain may be received, at which grain may be
weighed, elevated and stored and out of which grain may
be discharged, or
(iii) constructed for the purpose of handling and storing
grain as part of the operation of a flour mill, feed mill,
seed cleaning plant, malt house, distillery, grain oil extrac
tion plant or other grain processing plant, and into which
grain may be received, at which grain may be weighed,
elevated and stored and out of which grain may be dis
charged for processing or otherwise,
(b) any premises in the Eastern Division, situated along
Lake Superior, Lake Huron, Lake St. Clair, Lake Erie, Lake
Ontario or the canals or other navigable waters connecting
those Lakes or the St. Lawrence River or any tidal waters,
and into which grain may be received directly from railway
cars or ships and out of which grain may be discharged
directly to ships,
(c) the portion of any premises in the Eastern Division
named in Schedule Il that is used for the purpose of storing
grain,
(d) any premises in the Eastern Division constructed for the
purpose of handling and storing grain received directly from
producers, otherwise than as a part of the farming operation
of a particular producer, and into which grain may be
received, at which grain may be weighed, elevated and stored
and out of which grain may be discharged, and
(e) any premises in the Eastern Division constructed for the
purpose of handling and storing grain as a part of the
operation of a flour mill, feed mill, seed cleaning plant, malt
house, distillery, grain oil extraction plant or other grain
processing plant, and into which grain may be received, at
which grain may be weighed, elevated and stored and out of
which grain may be discharged for processing or otherwise,
including any such premises owned or operated by Her Majesty
in right of Canada or a province or any agent thereof.
The three terminal elevators referred to by the
Board are specifically mentioned in Schedule II to
the Act and are therefore caught by the declara
tion in subsection 55(1) together with paragraph
(c) of the definition of "elevator". Subsections
55(2) and (3) and paragraphs (d) and (e) of the
definition of "elevator", which would undoubtedly
catch all of the other elevators operated by Cargill
in Eastern Canada, have not been proclaimed in
force.
This brings me to the Board's finding, in para
graphs [2] and [3], that Cargill operates fifteen
feed warehouses, two seed cleaning mills and three
feed mills in Ontario and that these are caught by
the declaration in section 76 of the Canadian
Wheat Board Act:
76. For greater certainty, but not so as to restrict the
generality of any declaration in the Canada Grain Act that any
elevator is a work for the general advantage of Canada, it is
hereby declared that all flour mills, feed mills, feed warehouses
and seed cleaning mills, whether heretofore constructed or
hereafter to be constructed, are and each of them is hereby
declared to be works or a work for the general advantage of
Canada and, without limiting the generality of the foregoing,
every mill or warehouse mentioned or described in the schedule
is a work for the general advantage of Canada.
While I cannot agree with counsel's submission
that this declaration should not be given its full
force and effect so as to catch feed warehouses,
seed cleaning mills and feed mills in Eastern
Canada, I am also of the view that it should not be
extended beyond its terms. The section itself
makes a clear distinction between an "elevator"
and the various mills and warehouses of which it
speaks; that distinction echoes the one found in the
definition of "elevator" in section 2 of the Canada
Grain Act, quoted above. The legislative texts
reflect the reality: the evidence 6 before the Board
is clear that in each case the feed warehouses, seed
cleaning mills and feed mills belonging to Cargill
in Ontario are operated as an adjunct to the
operation of a country grain elevator which itself is
not subject to any federal declaration and is, in
fact, licensed and regulated by the Ontario provin
cial authorities. To state, as the Board does, that
the section 76 declaration relating to these ancil
lary operations
... establishes that the other aspects of Cargill's operations in
Ontario have been declared by the Federal Government to be
works for the general advantage of Canada ... [Emphasis
added.]
seems to me to be a patent case of the tail wagging
the dog. 7
6 Case book, at pp. 56, 120, 135 and 136. See also paragraph
6 of the Ontario Board's findings, quoted above, that the "farm
service" activities of the Company, i.e. the "federal" ware
houses and mills here in question, represent only twenty per
cent of the whole.
7 For a somewhat similar situation, see R. v. Saskatchewan
Wheat Pool (1978), 89 D.L.R. (3d) 755; 43 C.C.C. (2d) 119;
[1978] 6 W.W.R. 27 (Sask. C.A.), where a farm service centre
operated as an adjunct to a grain elevator was held to be
subject to the provincial Occupational Health Act even though
the elevator itself had been declared to be a work for the
general advantage of Canada. If an ancillary to a federal work
is not itself federal, a fortiori a declaration of the federal
character of an ancillary to a provincial work does not capture
the latter.
The Board's recognition that some of Cargill's
elevators are within provincial jurisdiction is pre
sumably intended to be limited to those country
elevators (apparently five out of a total of twenty-
five) which do not have feed warehouses, seed
cleaning mills or feed mills annexed to them. It, of
course, ignores the unquestioned fact that the
other twenty, at least so far as their elevator
operations are concerned, also operate under
exclusive provincial regulation and control.
These comments would in themselves be enough
to cast very serious doubt on the Board's finding
that Cargill's business is a federal undertaking.
There is more, however. I have on a previous
occasion 8 dealt with the distinction which must be
made between works and undertakings in terms of
the federal declaratory power in subsection 92(10)
of the Constitution Act, 1867 [30 & 31 Vict., c. 3
(U.K.) [R.S.C. 1970, Appendix II, No. 5] (as am.
by Canada Act 1982, 1982, c. 11 (U.K.), Schedule
to the Constitution Act, 1982, Item 1)] and I need
not repeat myself here. In that case, the Court
divided over the question of whether an undertak
ing, otherwise provincial in nature, whose sole
raison d'être was the operation of a federal work,
became by that fact a federal undertaking. The
facts of the present case are a long way from those
in Central Western and argue even more strongly
for exclusive provincial jurisdiction over labour
relations.
The undertaking of Cargill Grain Company,
Limited is far from being exclusively that of the
operation of a federal work. It is and is described
in the materials before the Board as a grain mer-
chandiser. As was stated by the Ontario Board in
paragraph 6 of its decision, quoted above:
Eighty per cent of the operations of the eastern region consists
of the buying of grain and grain products from producers in
Ontario and the storage, warehousing and marketing of that
grain. The other twenty per cent of its activity consists of other
farm service related activities.
The Canada Board also recognized this fact
and, in paragraph [5] of its decision, speaks of the
Chatham office being
B See Central Western Railway Corp. v. U.T.U., [1989] 2
F.C. 186; (1988), 47 D.L.R. (4th) 161; (1988), 84 N.R. 321
(C.A.).
... heavily involved in merchandising i.e. the buying, selling
and transportation of grain.'
This, as it seems to me, is conclusive against
federal jurisdiction over labour relations in that
office. The undertaking of Cargill is not that of an
operator of grain elevators, all or even most of
which have been declared to be federal works, who
incidentally engages in the activity of buying, sell
ing and transportation of grain. On the contrary,
the undertaking of Cargill, as it is uniformly and
consistently described throughout the material, is
that of a grain merchandiser buying, selling and
trading in grain in Ontario, who, as an incidental
to that undertaking, operates elevators for the
receipt, storage and delivery of the products dealt
in. In my view such an undertaking is wholly
provincial in its essence even if some part of the
activities relates to interprovincial or international
trade and some part of the physical plant includes
works which have been declared for the general
advantage of Canada.
It follows from the foregoing that, in my opin
ion, the Board's answer to the first question cannot
be supported since there is no "core federal under
taking" such as is required to underpin any federal
jurisdiction in the primarily provincial field of
labour relations. That being so, the Board's finding
on the degree of operational integration of the
various aspects of Cargill's business, the second
question, is simply irrelevant.
I conclude that the Board was without jurisdic
tion to make the decision here under review. My
regret at reaching such a conclusion, whose effect
must be to leave the employees in question
unrepresented by the union of their choice, is
somewhat tempered by the fact, previously alluded
to, that the Union itself, in its concurrent applica-
9 The Board's further reference to Cargill's dealings in the
futures market on the Winnipeg and Chicago grain exchanges
and the reference to the Grain Futures Act, R.S.C., 1985, c.
G-11, puzzles me. It surely cannot be implying that participa
tion in international trade or in dealings on a federally regulat
ed exchange makes the participant a federal undertaking. If so,
it is a startling claim to extension of federal labour relations
jurisdiction.
tion to the Ontario Board, invited the latter to
decline jurisdiction.
I would allow the section 28 application and set
aside the impugned decision as having been made
without jurisdiction.
* * *
The following are the reasons for judgment
rendered in English by
MACGuIGAN J.A. (dissenting): This section 28
application is brought by the applicant ("Cargill
Grain") against an order of the respondent
Canada Labour Relations Board (the "CLRB" or
the "Board"), dated March 10, 1989, made pursu
ant to section 24 of the Canada Labour Code
[R.S.C., 1985, c. L-2] (the "Code") which certi
fied the respondent United Automobile, Aerospace
and Agricultural Implement Workers of America
(the "Union") as the bargaining agent for a unit
comprising all office and clerical employees of
Cargill Grain Company Limited working in Cha-
tham, Ontario, excluding merchants' assistants,
the executive assistant to the branch manager,
casual employees, grain merchants, managers and
those above the rank of grain merchants and
managers.
Cargill Grain, self-described as a grain mer-
chandiser, is a wholly-owned subsidiary of a Win-
nipeg-based parent company, Cargill Limited,
which in the spring of 1988 purchased the grain
division of Maple Leaf Mills Ltd. and changed its
name to Cargill Grain Company Limited. Cargill
Grain's administrative offices are in Chatham,
Ontario.
The elevator and mill network of Cargill Grain
in Ontario comprises three transfer or terminal
elevators and 25 more locally-oriented establish
ments, including feed warehouses, feed mills, seed
cleaning mills and a seed bagging plant. Cargill
Grain also has the clerical offices in Chatham
which are the subject matter of the present case.
The 25 so-called "country elevators" are grouped
into 15 profit centres. Their main function is to
purchase local grains and oilseeds from the area
producers and provide crop inputs, including
custom application of inputs to the area producers.
These locations report to the Chatham office, and
the majority of the related accounting functions
are performed in the Chatham office, i.e. accounts
receivable, accounts payable, general ledger, finan
cial statement preparation, inventory records rela
tive to grain, etc. (Case, at page 56.)
The relationship of the Chatham office to the
country elevators is described in the following two
passages from the cross-examination of Stefan
Gutierrez, the Eastern Regional Manager of Car-
gill Grain:
Q. And from those Country Elevators, if I can characterize
them that way, that are administered through the
Chatham office, where do they ship the grain?
A. That grain is ... I would say, primarily, all shipped within
the province of Ontario.
Q. Where? To where?
A. To feed mills, to, to transfer elevators or terminal elevators
Q. Okay, so let ... You've, you've....
A. ... for further marketing disposition. [Case, at page 101.]
Q. You say that they, there are 15 or so warehouses where feed
and seed are warehoused?
A. The, the local grain elevator, as a ... maybe as a, as an
example, I can help explain this as a ... he may
have a, a flat warehouse adjacent to the grain
elevator. In that warehouse he may store chemi
cals and seed that is utilized by the local pro
ducer. So he will, he will use that warehouse to,
to hold on to his inventory until such time as it's
needed. And we only have them at, we don't have
them at all of the locations because some of it is
Q. Fifteen out of 25, basically, you're saying.
A. Um hum.
Q. Okay. And in terms of the work function performed at
Chatham in respect of the warehousing and so
on, sales of feed, seed and chemicals, that's all
done through Chatham?
A. Yes, in the way it was laid out here, in terms of accounts
receivables. [Case, at page 120.]
The Union applied concurrently for certification
both before the CLRB and the Ontario Labour
Relations Board ("OLRB"). In a decision on
December 22, the 1988 OLRB declined jurisdic
tion, concluding (Case, at page 55):
... The evidence in the instant case is that the respondent's
operations include elevators within the meaning of section
43(1) [now subsection 55(1)] of the Canada Grain Act and
mills and warehouses within the meaning of section 45 [now
section 76] of the CWBA. These operations have been declared
by Parliament to be works for the general advantage of
Canada. Accordingly, we have concluded that we do not have
jurisdiction to determine this application and it is hereby
dismissed.
The CLRB then held a hearing on the narrow
issue of its constitutional jurisdiction to certify the
Union. The Board's conclusion is contained in a
letter decision of March 28, 1989, the relevant
part of which is as follows:
On November 4, 1988 the applicant filed an application for
certification before this Board. The application proposed a
bargaining unit of approximately twenty-eight office and cleri
cal employees working in Cargill's offices in Chatham, Ontario.
The Board is confronted in this case with the following two
questions: 1) is there a federal undertaking in existence? and 2)
are the office operations in Chatham intimately related to this
federal undertaking? The Board is of the opinion that it has
jurisdiction to grant the certification application because both
of the above questions may be answered in the affirmative.
The evidence presented to the Board has convinced it that a
federal undertaking exists in the present case. While it is true
that not all of the "country" elevators in Cargill's operation
have been declared to be works for the general advantage of
Canada, there are nonetheless several of Cargill's elevators that
the Canada Grain Act, R.S.C. 1985 c. G-10, has explicitly
declared to be works for the general advantage of Canada. For
example, in Midland, Ontario one finds the Midland Simcoe
Elevator Co. Limited; in Port McNicoll, one finds the Mara
thon Realty Company Limited; and in Sarnia, one finds Maple
Leaf Mills Ltd. All of these elevators are owned by Cargill.
These premises are listed in Schedule II of the Grain Act as
being works for the general advantage of Canada.
In addition, Cargill has feed warehouses at several locations
in Ontario. During the hearing, Mr. S. Guthierrez, Cargill's
eastern regional manager, stated that there were fifteen such
feed warehouses in Ontario. Similarly, Cargill is also involved
with seed cleaning mills such as those in Princeton and in
Wallaceburg. Mr. Guthierrez further stated that Cargill oper
ates a few small feed mills such as those in Ayr, Ridgetown and
Nelles Corners, Ontario. Cargill also operates seed bagging
plants notably in Tillbury, Ontario.
Based upon these facts, we are prepared to find that Cargill
is involved in a federal undertaking not only because some of
Cargill's elevators have been declared to be works for the
general advantage of Canada, but also because section 76 of
the Canadian Wheat Board Act, R.S.C. 1985 c. C-24, estab-
lishes that the other aspects of Cargill's operations in Ontario
have been declared by the Federal Government to be works for
the general advantage of Canada. While this Board realizes
that not all of Cargill's grain elevators are within its jurisdic
tion, the overall characterization of the employer's business
must be as a federal undertaking.
It is also the Board's opinion that the clerical operations at
Chatham are intimately related to the basic federal undertak
ing. The Chatham office of Cargill administers the feed mills
referred to above. All of the country elevators owned by Cargill
are administered through the Chatham office though, as men
tioned before, some of these elevators are within provincial
jurisdiction. These exceptions would not, however, change our
basic characterization of Chatham's importance to the opera
tions of Cargill in Eastern Canada. Other functions carried out
by the Chatham office include accounting, grain marketing,
compilation of statistics from the Eastern Canada operations,
plus coordination of activities at various places in Eastern
Canada such as at the seed cleaning mill in Wallaceburg.
It is also important to note that the Chatham office is heavily
involved in merchandising i.e. the buying, selling and transpor
tation of grain. A portion of this merchandising relates to the
futures markets on the Winnipeg and Chicago grain exchanges.
The Winnipeg Grain Exchange is governed by the Grain
Futures Act, R.S.C. 1985 c. G-11. For these futures markets,
traders in eastern Canada place orders through the Chatham
office for the Winnipeg or Chicago grain exchange.
Taking into account all of the above considerations, the
Board finds that the Chatham office is intimately related with
the federal undertaking. Accordingly, this Board has jurisdic
tion over the present certification application.
The legal issues in this case focus principally on
the declaratory power of Parliament under para
graph 92(10)(c) of the Constitution Act, 1867 [30
& 31 Vict., c. 3 (U.K.) (as am. by Canada Act
1982, 1982, c. 11 (U.K.), Schedule to the Consti
tution Act, 1982, Item 1) [R.S.C., 1985, Appendix
II, No. 5]] to declare a work for the general
advantage of Canada. This provision reads as
follows:
92. In each Province the Legislature may exclusively make
Laws in relation to Matters coming within the Classes of
Subjects next herein-after enumerated; that is to say,-
10. Local Works and Undertakings other than such as are
of the following Classes:—
c. Such Works as, although wholly situate within the Prov
ince, are before or after their Execution declared by the
Parliament of Canada to be for the general Advantage of
Canada or for the Advantage of Two or more of the
Provinces.
There are two main pieces of general legislation
affecting the grain industry in Canada, each
employing the federal declaratory power. The
Canada Grain Act, R.S.C., 1985, c. G-10, estab
lishes the Canadian Grain Commission (section 3)
with a mandate to "establish and maintain stand
ards of quality for Canadian grain and regulate
grain handling in Canada, to ensure a dependable
commodity for domestic and export markets" (sec-
tion 13). The Canadian Wheat Board Act, R.S.C.,
1985, c. C-24, sets up the Canadian Wheat Board
"with the object of marketing in an orderly
manner, in interprovincial and export trade, grain
grown in Canada" (section 5), with power inter
alia to buy, sell and transport grain and to operate
elevators (section 6).
The Canada Grain Act divides Canada into an
Eastern Division and a Western Division, the
boundary being the meridian passing through the
eastern boundary of Thunder Bay, and section 2 of
the Act defines elevator to mean, inter alia, "the
portion of any premises in the Eastern Division
named in Schedule II that is used for the purpose
of storing grain". Schedule II lists, inter alia, the
premises of Midland Simcoe Elevator Co. Ltd., in
Midland, Ontario, those of Marathon Realty
Company Limited in Port McNicoll, Ontario, and
those of Maple Leaf Mills Ltd. in Sarnia, Ontario.
These are the three transfer elevators now owned
by Cargill Grain, and it is therefore common
ground to the parties that these three elevators fall
under federal jurisdiction under paragraph
92(10) (c).
This is the only relevant declaration in the
Canada Grain Act, since the relevant provisions of
section 55 are not yet in force. That section pro
vides as follows:
55. (1) All elevators in Canada heretofore or hereafter con
structed, except elevators referred to in subsection (2) or (3),
are and each of them is hereby declared to be a work or works
for the general advantage of Canada.
(2) All elevators in the Eastern Division heretofore or here
after constructed, as defined in paragraph (d) of the definition
"elevator" in section 2, are and each of them is hereby declared
to be work or works for the general advantage of Canada.
(3) All elevators in the Eastern Division heretofore or here
after constructed, as defined in paragraph (e) of the definition
"elevator" in section 2, are and each of them is hereby declared
to be a work or works for the general advantage of Canada.
The general provisions of this section are, of
course, broad enough to cover Cargill grain's oper
ations, which are entirely in the Eastern Division,
but subsection 121(1) provides that subsections (2)
and (3) of section 55 shall come into force only
when proclaimed, and no proclamation under sec
tion 121 has yet been issued.
It is therefore necessary to turn to the Canadian
Wheat Board Act, which contains a declaration for
the general advantage of Canada in section 76, as
follows:
76. For greater certainty, but not so as to restrict the
generality of any declaration in the Canada Grain Act that any
elevator is a work for the general advantage of Canada, it is
hereby declared that all flour mills, feed mills, feed warehouses
and seed cleaning mills, whether heretofore constructed or
hereafter to be constructed, are and each of them is hereby
declared to be works or a work for the general advantage of
Canada and, without limiting the generality of the foregoing,
every mill or warehouse mentioned or described in the schedule
is a work for the general advantage of Canada.
It was this declaration which was used by the
Board to support a conclusion that most of Cargill
grain's elevators in Ontario have been declared to
be works of the general advantage of Canada.
Certainly on their face "all flour mills, feed mills,
feed warehouses and seed cleaning mills" in
Ontario would be included.
The applicant argued that a restrictive reading
so as not to apply section 76 to "country" elevators
is required for two reasons. First, the Canada
Grain Act and the Canadian Wheat Board Act are
in pari materia, and the former has not exercised
its jurisdiction over Eastern Division country
elevators. Second, the Canadian Wheat Board Act
itself requires a territorial restriction by its defini
tion of "designated area" in section 2:
2. (1) In this Act,
"designated area" means that area comprised by the Provinces
of Manitoba, Saskatchewan and Alberta, and those parts of
the Province of British Columbia known as the Peace River
District and the Crestan-Wynndell Areas, and such other
areas as the Board may designate under Subsection (3).
Subsections (2) and (3) of section 2 are also
invoked:
2....
(2) Unless it is otherwise provided in this Act, words and
expressions used in this Act have the same meaning as in the
Canada Grain Act, .. .
(3) The Board may, by order, designate parts of the Prov
ince of British Columbia, other than the Peace River District
and the Creston-Wynndel Areas, and parts of the Province of
Ontario lying in the Western Division that are included in the
designated area for the purposes of this Act.
In reference to the first argument, it will be
noted that the territorial divisions in the two Acts
are not identical. Even with the additional powers
of designation given to the Canadian Wheat Board
under subsection 2(3) of its Act, the "designated
area" under that Act is not potentially equivalent
to the Western District under the Canada Grains
Act, since certain parts of British Columbia are
made exempt from designation.
Section 76 has been considered in several cases.
In Camirand c. R., [1976] C.S. 1294, Mignault J.
of the Quebec Superior Court interpreted the
opening words ("For greater certainty, but not so
as to restrict the generality") to mean only that
the enumeration in the Schedule of mills and feed
warehouses in the designated area does not exclude
other mills and warehouses in that same area, and
he held that the declaration therefore has refer
ence only to mills and warehouses in the four
Western provinces.
This case was followed by Brière J. in Antoine
Guertin Ltée 1, unreported, Québec Labour Court,
No. 500-28-000502-831. However in Cie du trust
national Ltée c. Burns, [1985] C.S. 1286, 10 Mail-
hot J. (as she then was) refused to follow Cami-
rand. In coming to the opposite conclusion, she
appeared to be particularly struck by the fact that
both Acts were amended on the same day, June
30, 1950, so as to have declaratory provisions of
10 An appeal has been pending before the Québec Court of
Appeal since 1985, but has not yet been proceeded with.
However, in a companion case, that Court indirectly affirmed
the judgment of Bisson, Chouinard and Mailhot JJ. on other
grounds: see Raymond, Chabot, Martin, Paré & associés c.
Association des employés de G.D.I. Inc., decided June 9, 1989
(No. 200-09-000461-852).
greater breadth than before; that in the The
Canadian Wheat Board Act 1935, [S.C. 1935, c.
53, s. 39 (as am. by S.C. 1947, c. 15; 1950, c. 31, s.
8)] is identical to the present section 76, and that
in the Canada Grain Act [R.S.C. 1927, c. 86, s.
173 (as am. by S.C. 1950, c. 24, s. 10)] reads as
follows:
173. All elevators in Canada heretofore or hereafter con
structed are hereby declared to be works for the general
advantage of Canada.
Elevators were defined as "any premises into
which western grain may be received, or out of
which it may be discharged directly from or into
railway car or vessels" (R.S.C. 1952, c. 25, s. 2).
Then in 1971 the entire Canada Grain Act was
replaced, and a declaratory power was enacted
(S.C. 1970-71-72, c. 7, s. 43) in the words present
ly in section 55, with a regional limitation on the
general declaration in subsection 1, whereas the
declaration in the Canadian Wheat Board Act was
left unchanged. In sum, between 1950 and 19-71
the Canada Grain Act covered all of Canada, as
did the Canadian Wheat Board Act. The Canada
Grain Act was then changed to apply to all eleva
tors in the Western Division, some in the Great
Lakes Region and to eastern elevators named in
Schedule II. No such change was made to the
Canadian Wheat Board Act, and it therefore pre
sumably was intended by Parliament to continue
the broad declaration previously intended.
Mailhot J. also noted that the notion of "desig-
nated area" in the Canadian Wheat Board Act
was obviously intended to apply to the parts of the
Act where it is referred to: section 23 for Part II,
"Control of Elevators and Railways", section 32
for Part III, "Interprovincial and Export Market
ing of Wheat by the Board". Section 76, on the
other hand, is found in Part VII, "General", where
no purpose is served by a regional limitation."
Section 76 was also considered by this Court in
C.S.P. Foods Ltd v. Canada Labour Relations
Board, [1979] 2 F.C. 23; 25 N.R. 91 (C.A.),
where Heald J. wrote for the Court (at page 29
F.C.):
A perusal of the declaratory section in the Canadian Wheat
Board Act ... discloses that it extends the declaration as
contained in the Canada Grain Act so that "all flour mills, feed
mills, feed warehouses and seed cleaning mills ..." [underlin-
ing is mine] are declared to be "works or a work for the general
advantage of Canada ..." .
If taken literally, these words are broad enough to
resolve the issue in the case at bar, but the matter
is perhaps not free from doubt in that all the works
or undertakings of that case were in fact located in
Western Canada within the "designated area".
Nevertheless, I find it impossible to come to any
other conclusion than that no reason has been
adduced to restrict the generality of the words in
section 76. Indeed, the reasons to the contrary as
seen by Mailhot J. lead me also to her conclusion,
that the declaration in section 76 of the Canadian
Wheat Board Act should be taken to apply to "all
flour mills, feed mills, feed warehouses and seed
cleaning mills" in Canada.
That decided, what remains are the factual find
ings of the Board, which are not as such review-
able by this Court by virtue of section 22 of the
Code, which limits judicial review to matters fall
ing under paragraph 28(1)(a) of the Federal
Court Act. The Board specified that of the 25 so
called "country elevators" in question at least 21
either were or were integrated with federal works
under section 76 of the Canadian Wheat Board
Act: 15 feed warehouses, 2 seed cleaning mills, 3
" This point was also strongly made in W.G. Thompson &
Sons Limited; Re U.F.C.W.; Re Group of Employees, [1987]
OLRB Rep. May, 787, at p. 790, the principal decision of the
OLRB in this area.
feed mills 12 and a seed bagging plant. In addition,
the 3 transfer elevators are specifically declared to
be federal works under the Canada Grain Act. On
this factual basis, the Board concludes that "the
overall characterization of the employer's business
must be as a federal undertaking" and that "the
clerical operations at Chatham are intimately
related to the basic federal undertaking," all the
more so because some of the functions carried out
in the Chatham clerical office relate to general
activities of Cargill Grain's Eastern Canada opera
tions as a federal undertaking.
The possible bases for review by this Court
would be an error of jurisdiction or a patently
unreasonable error of law: Syndicat des employés
de production du Québec et de l'Acadie v. Canada
Labour Relations Board, [1984] 2 S.C.R. 412; 14
D.L.R. (4th) 457; (1984), 55 N.R. 321; 14 Admin.
L.R. 72; 84 C.L.L.C. 14,069. Since the issue here
relates to the jurisdiction, in constitutional terms,
of the Board, it may be presumed that the Board's
error, if any,, was jurisdictional. In any event,
Parliament could not exclude the superintending
power of a superior court even by a privative
clause: Canadian Unions of Public Employees et
al. v. Paul L'Anglais Inc. et al., [ 1983] 1 S.C.R.
147; 146 D.L.R. (3d) 202; (1983) 47 N.R. 351.
Although it was neither raised by the applicant
nor dealt with by the Board, an argument as to
error of jurisdiction could be based upon the dis
senting judgment in this Court in Central Western
Railway Corp. v. U.T.U., [1989] 2 F.C. 186;
(1988), 47 D.L.R. (4th) 161; (1988), 84 N.R. 321
(C.A.). That case was concerned with the constitu
tional jurisdiction over labour relations in Central
Western Railway Corporation, which operated a
105-mile-long track called the Stettler Subdivision
within the Province of Alberta. All members of the
Court were agreed that the track had been
' 2 The Board seems to have been mistaken in including the
feed mill at Ayr, since it appears to have been operated directly
by the parent company and not by Cargill Grain iself; Case, at
p. 102.
declared to be a federal work under paragraph
92(10)(c) of the Constitution Act, 1867. However,
Hugessen J.A., relying on the principle that labour
relations jurisdiction is primarily provincial and
only exceptionally federal, went on to say (at pages
214-217 F.C.):
That does not resolve the question, however. There is, as far
as I am aware, no case which holds that labour relations are
subject to federal jurisdiction simply because the labour is
performed on or in connection with a federal work. That is
hardly surprising. Works, being physical things, do not have
labour relations. Undertakings do.
The undertaking and business of Central Western are provin
cial and local in character. Its trackage and right-of-way are
subject to federal jurisdiction by virtue of a declaration under
paragraph 92(10)(c). Federal authority extends to the use
which may be made of the track but regulation of the labour
relations of the user is not an integral element of that authority.
Effective control of the work does not require control of the
undertaking. Accordingly, the Canada Labour Relations Board
has no jurisdiction to make the decision under review.
However, the decision of the majority in that
case now provides an authority for the opposite
point of view. Marceau J.A. said (at pages 204-
205 F.C.):
It is my opinion, however, that a basic difference must be seen
here between, on the one hand, an undertaking which is only
called upon to participate in the construction, repair or mainte
nance of a federal work, or which happens to use such a work to
conduct its operations and, on the other hand, the undertaking
whose sole reason for being is to operate on a continuing basis
the federal work, to exploit its productive capacity, to make it
produce, so to speak, the "national general benefit" expected
from it. The national dimension present in the case of the
latter, makes it normal, it seems to me, that the federal
character of the work would attract federal jurisdiction over all
essential aspects of the operation thereof. This, in any event, is
the position taken by Parliament in enacting section 108 of the
Canada Labour Code which reads:
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' organ
izations composed of such employees or employers. (I under
lined the words I considermost significant in support of my
proposition.)
Section 108 [Canada .Labour Code, R.S.C. 1970,
c. L-1 (as am. by S.C. 1972, c. 18, s. 1)] [now
section 4] of the Code [R.S.C., 1985 c. L-2] is, of
course, equally in play in the case at bar.
Lacombe J.A. took the same point of view (at
pages 227-228 F.C.):
In the present state of the law, there cannot be such a
work-undertaking dichotomy, whereby in the case of a railway
company conducting its local operations on a federal line, the
labour relations of the undertaking would be subject to provin
cial jurisdiction, whereas all other aspects of the utilization of
the line, qua federal work such as signals and safety would be
regulated by federal authority. The regulation of the conditions
of employment of Central Western's employees forms an inte
gral part of the primary federal competence over the matter
coming within the class of subject mentioned in para. 92(10(c)
of the Constitution Act, 1867 and is directly related to the
day-to-day utilization of a federal work. It must be emphasized
that the Parliament of Canada, under s. 91(29), has exclusive
legislative authority over all matters coming within such classes
of subjects as are expressly excepted in s. 92(10) of the
Constitution Act, 1867.
Unless and until the declaration by Parliament ceases to have
effect with respect to the Stettler Subdivision, both the work
and the undertaking of Central Western are subject to federal
jurisdiction. It would be odd that, for example, the Canadian
Transport Commission would have jurisdiction over Central
Western's trackage, on which it operates its railway undertak
ing, whereas the Canada Labour Relations Board would be
without jurisdiction over its employees by whom it carries its
business on and about the same declared federal work. By way
of exception to the general rule that labour relations are within
provincial competence, federal competence over Central West
ern's labour relations is an essential element of Parliament's
exclusive authority to make laws with respect to a work it has
declared to be for the general advantage of Canada.
It seems to me that the fundamental difference
between the majority and minority points of view
reduces itself to different views as to the extent of
the provincial "paramountcy" in labour relations.
That "paramountcy" itself is not in dispute, but I
take it that the majority judges in Central Western
see the effect of the federal declaratory power as
conferring priority in favour of federal jurisdiction
within a reasonable ambit of interpretation of the
declaratory power. I see nothing to contradict this
in recent decisions such as Construction Montcalm
Inc. v. The Minimum Wage Commission, [1979] 1
S.C.R. 754; (1978), 93 D.L.R. (3d) 641;
(1978), 25 N.R. 1; 79 C.C.L.C. 14,190; and
Northern Telecom Ltd. v. Communications Work-
ers of Canada, [1980] 1 S.C.R. 115; (1979), 98
D.L.R. (3d) 1; (1979), 28 N.R. 107; 79 C.C.L.C.
14,211; (Northern Telecom No. 1). Moreover, as
Lacombe J.A. pointed out, exclusive federal legis
lative authority seems to be a clear consequence of
subsection 91(29) of the Constitution Act, 1867.
Indeed, Lord Porter made this explicit in Attor-
ney-General for Ontario v. Israel Winner, [1954]
A.C. 521, at page 568; [1954] 4 D.L.R. 657
(P.C.), at page 666; 756 (Sask. C.A.) where he
stated that Parliament's jurisdiction over subsec
tion 92(10) is the same as it "would have enjoyed
if the exceptions were in terms inserted as one of
the classes of subjects assigned to it under s. 91".
In the words of Dickson J. (as he then was) in
Northern Telecom No. 1 at page 132 S.C.R.:
... Primary federal competence over a given subject can pre
vent the application of provincial law relating to labour rela
tions and the conditions of employment but only if it is demon
strated that federal authority over these matters is an integral
element of such federal competence.
Section 4 of the Code builds upon this basis.
As I read the Central Western case, therefore, it
stands for the proposition that an undertaking
based upon a federal work and the labour relations
of that undertaking follow upon and for jurisdic
tional purposes are integral with the federal work
itself.
That is also the viewpoint of leading commenta
tors on constitutional law. Professor Bora Laskin
(as he then was) wrote in Canadian Constitutional
Law, 3rd ed. 1966, at page 506; 5th ed., by Neil
Finkelstein, Toronto: Carswell, 1986, at pages
628-629:
If anything can be gathered from what has been done under
s. 92(10(c), as well as from what has been said about it, the
result of a declaration of a "work" to be for the general
advantage of Canada must surely be to bring within federal
authority not only the physical shell or facility but also the
integrated activity carried on therein; in other words, the
declaration operates on the work in its functional character: see
The Queen v. Thumlert [(1959), 28 W.W.R. 481 (Alta. C.A.)].
[Emphasis added.]
Professor Peter W. Hogg, Constitutional Law of
Canada, 2nd ed. Toronto: Carswell, 1985, at page
492, cites and adopts this statement from Laskin
and adds:
That this is correct is demonstrated by cases in which the
declaration has been followed by an assertion of regulatory
jurisdiction over the activity related to the work. Perhaps the
clearest examples are the declarations that grain elevators and
various kinds of mills and warehouses are works for the general
advantage of Canada. The purpose of these declarations was to
assume the regulatory jurisdiction over the grain trade which
had been denied to the federal Parliament by The King v.
Eastern Terminal Elevator Co. (1925), ([1925] S.C.R. 434.) It
has been held that these declarations are effective to authorize
federal regulation of the delivery, receipt, storage and process
ing of the grain, that is to say, the activities carried on in or
about the "works". (Jorgensen v. Attorney General of Canada,
[1971] S.C.R. 725; Chamney v. The Queen, [1975] 2 S.C.R.
151.)
Although none of the cases cited by these two
authors focuses on the identical question, in my
view their conclusions are in keeping with the
thrust of these authorities. Even were I not bound
by the majority view in Central Western, I should
therefore have no hesitation in following it. 13
Of course, those undertakings which are
independent of and severable from a federal work
are not necessarily subject to federal jurisdiction.
Hence farm service centres attached to elevators
that were federal works were held not to be an
integral part of the operation of the grain elevators
nor necessarily incidental to the work of the eleva
tors system: R. v. Saskatchewan Wheat Pool
(1978), 89 D.L.R. (3d) 756; 43 C.C.C. (2d) 119;
[1978] 6 W.W.R. 27 (Sask. C.A.). In the case at
" The issue as to the extension to be given to paragraph
92(10)(c) is canvassed but not resolved by Phineas Schwartz,
"Fiat by Declaration - S. 92(10)(c) of the British North
America Act (1960), 2 O.H.L.J. 1. Andrée Lajoie, Le pouvoir
déclaratoire du Parlement, Montréal: Les Presses de l'Univer-
sité de Montréal, 1969, takes a broad view of the federal
declaratory power. I. H. Fraser, "Some Comments on Subsec
tion 92(10) of the Constitution Act, 1867" (1984), 29 McGill
L.J. 557, elucidates but does not resolve the problem. In my
view he is correct in asserting (at p. 587) that "Jurisdiction
over a work of necessity includes an element of control over its
uses, whatever these uses may be: but jurisdiction over a work
merely extends to these uses, it does not stem from them", and
(at p. 606) that "the courts have properly refused to accept that
there must be one undertaking merely because there is only one
`undertaker' ". Of course, if there is more than one undertak
ing, as in the case at bar, that leads to the secondary question
that I now go on to raise.
bar, the Board was asked to rule on labour rela
tions jurisdiction, not over all the employees of the
two undertakings, but in relation only to the office
employees in Chatham. The integration in ques
tion, therefore, is that between those workers and
the federal undertaking based upon the federal
works.
Any such question of integration is really a
secondary question, to be asked in relation to
subsidiary undertakings. In this context, to which I
now pass since it must be asked in the case at bar,
the key issue is always the quality of the integra
tion of a subsidiary undertaking into a core federal
undertaking. As this Court said in Canada Labour
Code (Re) (1986), [1987] 2 F.C. 30, at pages
48-49; 34 D.L.R. (4th) 228; (1986), 72 N.R.
348; 87 C.L.L.C. 14,017 (C.A.):
[T]he critical factor in determining constitutional jurisdiction
in such cases is the "macro-relationship" between the subsidi
ary operation and the core federal undertaking. The facts of
this relationship should be examined from a functional practi
cal point of view, and for federal jurisdiction to be established
(1) there must be a high degree of operational integration and
(2) it must be of an ongoing nature.
In the case at bar there is no doubt at all that
the relationship between the two undertakings is of
an ongoing nature. Nor has any case been built up
by the applicant that there is not a high degree of
operational integration. On the contrary, the appli
cant admits in its memorandum of fact and law,
paragraph 30, that:
30. Administration, accounting, and movement of grain and
related operations are performed ... primarily by the adminis
trative staff at Chatham, Ontario as part of the administration
of the country elevator network system. [Emphasis added.]
The implication is that it is all an integrated
system, the very finding made by the Board.
In fact, the applicant's case rested effectively on
the proposition that the "country elevators" were
not works for the general advantage of Canada.
Once that issue is decided against the applicant
and once it is established, following the Central
Western case, that the undertaking based upon the
federal work is itself under federal jurisdiction,
there is, as the case was argued before us, no basis
on which this Court could find that the Board had
made .an error of jurisdiction in concluding that
there was a high degree of operational integration.
The Board found on the facts that there was a
basic federal undertaking and that the clerical
operations at issue were intimately related to the
basic federal undertaking. In my view this Court
cannot say that this factual determination of oper
ational integration (as seen by both relevant labour
relations boards) was erroneous.
It should be noted that, in the Saskatchewan
Wheat Pool case, the Saskatchewan Court of
Appeal did not interfere with a finding by an
administrative tribunal, but merely affirmed a
conviction under provincial regulatory legislation.
In the case at bar there is, it seems to me, no
factual foundation on the basis of which this Court
could reverse the decision of the Board.
In the light of my holding on this point, I have
no need to consider the other possible bases of
support for the Board's decision put forward by
the Union.
In the result the section 28 application must be
dismissed.
* * *
The following are the reasons for judgment
rendered in English by:
DESJARDINS J.A.: I have had the advantage of
reading in draft the reasons for judgment of both
Hugessen J.A. and MacGuigan J.A. I concur with
the reasons for judgment of Hugessen J.A.
Section 55 of the Canada Grain Act, R.S.C.,
1985, c. G-10, and section 76 of the Canadian
Wheat Board Act, R.S.C., 1985, c. C-24 deal
strictly with the "works" therein described. Parlia
ment has not attempted in these Acts to bring
within the scope of the declarations the undertak
ings related to these works, although paragraph
2(h) of the Canada Labour Code, R.S.C., 1985, c.
L-2 alludes to this possibility, despite the fact that
paragraph 92(10)(c) of the Constitution Act, 1867
refers to "works" and not "undertakings". 14
Quite apart from this, I do not understand the
law as being that once a "work" is declared, the
undertaking follows federal jurisdiction. What has
been said in Chamney v. The Queen, [1975] 2
S.C.R. 151, at page 157; (1973), 40 D.L.R. (3d)
146; 13 C.C.C. (2d) 465; [1974] 1 W.W.R. 493, is
that once an "elevator" has been declared, "[t]he
Canadian Wheat Board Act applies controls to
these premises". 15 The movement of the grain that
enter the premises might be subject to federal
legislation. But the undertaking is another matter.
Even assuming that it could be said, as a result of
the decision of this Court in Central Western
Railway Corp. v. U.T.U., [1989] 2 F.C. 186;
(1988), 47 D.L.R. (4th) 161; (1988), 84 N.R. 321
(C.A.), that the workers and management respon
sible for the operation of the works declared come
under federal labour legislation,—a matter I need
not decide here—, this would not change the key
character of the undertaking of the applicant
which is local in nature. The applicant is a grain
merchandiser wholly situated in Ontario. That
three transfer or terminal elevators, fifteen feed
warehouses, two seed cleaning mills and three feed
mills have been declared to be for the general
advantage of Canada, out of a network which
includes also twenty-five country elevators and one
seed bagging plant, and that, as part of its opera
tion, it moves grain that enter the interprovincial
and international trade, does not make it a federal
core undertaking to which the labour relations of
14 Paragraph 2(h) of the Canada Labour Code, R.S.C., 1985,
c. L-2 refers to "a work or undertaking". The validity of
statutes containing declarations with respect to "works and
undertakings" or even "undertakings" alone has been discussed
in a number of fora. See P. W. Hogg, Constitutional Law of
Canada, 2nd ed. Toronto: Carswell, 1985, at p. 492; K. Hans-
en, "The Federal Declaratory Power under the British North
America Act" (1968), 3 Man. L.J. 87, at pp. 94-95. A. Lajoie,
Le pouvoir déclaratoire du Parlement. (Montréal: Les Presses
de l'Université de Montréal, 1969 at p. 61; I. H. Fraser, "Some
Comments on Subsection 92(10) of the Constitution Act,
1867" (1984), 29 McGill L.J. at p. 557, and the authorities
cited. And also In Reference re Industrial Relations and
Disputes Act, [1955] S.C.R. 529; per Rand J. [1955] 3 D.L.R.
721; at p. 553.
15 See also The Queen v. Thumlert (1960), 20 D.L.R. (2d)
335, at pp. 336, 341, 357; (1959), 28 W.W.R. 481 (Alta. C.A.).
the office and clerical employees working in Cha
tham, Ontario, could attach.
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.